[Federal Register Volume 88, Number 36 (Thursday, February 23, 2023)]
[Rules and Regulations]
[Pages 11394-11396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03744]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2023-OS-0010]
RIN 0790-AL11


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense, Department of Defense 
(DoD).

ACTION: Direct final rule with request for comments.

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SUMMARY: The Department of Defense (DoD or Department) is giving 
concurrent notice of a new Department-wide system of records titled 
``Privacy and Civil Liberties Complaints and Correspondence Records,'' 
DoD-0017, and this rulemaking, which is exempting portions of this 
system of records from certain provisions of the Privacy Act of 1974, 
as amended, because of national security requirements. This rule is 
being published as a direct final rule as the Department does not 
expect to receive any significant adverse comments. If such comments 
are received, this direct final rule will be cancelled and a proposed 
rule for comments will be published.

DATES: The rule will be effective on May 4, 2023, unless comments are 
received that would result in a contrary determination. Comments will 
be accepted on or before April 24, 2023.

ADDRESSES: You may submit comments, identified by docket number, 
Regulation Identifier Number (RIN), and title, by any of the following 
methods.
     Federal Rulemaking Portal: https://www.regulations.gov.
    Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Assistant to 
the Secretary of Defense for Privacy, Civil Liberties, and 
Transparency, Regulatory Directorate, 4800 Mark Center Drive, Attn: 
Mailbox 24, Suite 08D09, Alexandria, VA 22350-1700.

[[Page 11395]]

    Instructions: All submissions received must include the agency name 
and docket number or RIN for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
internet at https://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Ms. Rahwa Keleta, [email protected], 
(703) 571-0070.

SUPPLEMENTARY INFORMATION: 

I. Background

    In accordance with the Privacy Act of 1974, DoD is establishing a 
new Department-wide system of records titled ``Privacy and Civil 
Liberties Complaints and Correspondence Records,'' DoD-0017. This 
system of records covers DoD's maintenance of records about privacy or 
civil liberties-related complaints or correspondence submitted to DoD 
privacy and civil liberties offices. This system of records includes 
information provided by the individual authoring the correspondence or 
complaint.

II. Privacy Act Exemption

    The Privacy Act permits Federal agencies to exempt eligible records 
in a system of records from certain provisions of the Act, including 
the provisions providing individuals with a right to request access to 
and amendment of their own records and accountings of disclosures of 
such records. If an agency intends to exempt a particular system of 
records, it must first go through the rulemaking process to provide 
public notice and an opportunity to comment on the exemption. The 
Office of the Secretary is amending 32 CFR part 310 to add a new 
Privacy Act exemption rule for this system of records. The DoD is 
claiming an exemption for this system of records because some of its 
records may contain classified national security information and 
providing notice, access, amendment, and disclosure of accounting of 
those records to an individual, as well as certain record-keeping 
requirements, may cause damage to national security. The Privacy Act, 
pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to claim an 
exemption for systems of records that contain information properly 
classified pursuant to executive order. DoD is claiming an exemption 
from several provisions of the Privacy Act, including various access, 
amendment, disclosure of accounting, and certain record-keeping and 
notice requirements, to prevent disclosure of any information properly 
classified pursuant to executive order, as implemented by DoD 
Instruction 5200.01 and DoD Manual 5200.01, Volumes 1 and 3.

III. Direct Final Rulemaking

    This rule is being published as a direct final rule as the 
Department does not expect to receive any significant adverse comments. 
If such comments are received, this direct final rule will be cancelled 
and a proposed rule for comments will be published. If no such comments 
are received, this direct final rule will become effective ten days 
after the comment period expires.
    For purposes of this rulemaking, a significant adverse comment is 
one that explains (1) why the rule is inappropriate, including 
challenges to the rule's underlying premise or approach; or (2) why the 
rule will be ineffective or unacceptable without a change. In 
determining whether a significant adverse comment necessitates 
withdrawal of this direct final rule, the Department will consider 
whether the comment raises an issue serious enough to warrant a 
substantive response had it been submitted in a standard notice-and-
comment process. A comment recommending an addition to the rule will 
not be considered significant and adverse unless the comment explains 
how this direct final rule would be ineffective without the addition.
    This direct final rule adds to the DoD's Privacy Act exemptions for 
Department-wide systems of records found in 32 CFR 310.13. Records in 
this system of records are only exempt from the Privacy Act to the 
extent the purposes underlying the exemption pertain to the record.
    A notice of a new system of records for DoD-0017 is also published 
in this issue of the Federal Register.

Regulatory Analysis

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. It has been determined that this rule is not a significant 
regulatory action under these executive orders.

Congressional Review Act (5 U.S.C. 804(2))

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. DoD will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule may take effect no earlier than 60 calendar days after 
Congress receives the rule report or the rule is published in the 
Federal Register, whichever is later. This rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies to assess anticipated costs and benefits 
before issuing any rule whose mandates may result in the expenditure by 
State, local, and tribal governments in the aggregate, or by the 
private sector, in any one year of $100 million in 1995 dollars, 
updated annually for inflation. This rule will not mandate any 
requirements for State, local, or tribal governments, nor will it 
affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601 et 
seq.)

    The Assistant to the Secretary of Defense for Privacy, Civil 
Liberties, and Transparency has certified that this rule is not subject 
to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, 
if promulgated, have a significant economic impact on a substantial 
number of small entities. This rule is concerned only with the 
administration of Privacy Act systems of records within the DoD. 
Therefore, the Regulatory Flexibility Act, as amended, does not require 
DoD to prepare a regulatory flexibility analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. 3501 et seq.)

    The Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.) was 
enacted to minimize the paperwork burden for individuals; small 
businesses; educational and nonprofit institutions;

[[Page 11396]]

Federal contractors; State, local, and tribal governments; and other 
persons resulting from the collection of information by or for the 
Federal Government. The Act requires agencies obtain approval from the 
Office of Management and Budget before using identical questions to 
collect information from ten or more persons. This rule does not impose 
reporting or recordkeeping requirements on the public.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct requirement costs on State and local governments, preempts State 
law, or otherwise has federalism implications. This rule will not have 
a substantial effect on State and local governments.

Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments''

    Executive Order 13175 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct compliance costs on one or more Indian tribes, preempts tribal 
law, or affects the distribution of power and responsibilities between 
the Federal Government and Indian tribes. This rule will not have a 
substantial effect on Indian tribal governments.

List of Subjects in 32 CFR Part 310

    Privacy.

    Accordingly, 32 CFR part 310 is amended as follows:

PART 310--PROTECTION OF PRIVACY AND ACCESS TO AND AMENDEMENT OF 
INDIVIDUAL RECORDS UNDER THE PRIVACY ACT OF 1974

0
1. The authority citation for part 310 continues to read as follows:

    Authority:  5 U.S.C. 552a.


0
2. Section 310.13 is amended by adding paragraph (e)(13) to read as 
follows:


Sec.  310.13   Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (13) System identifier and name. DoD-0017, ``Privacy and Civil 
Liberties Complaints and Correspondence.''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections of the Privacy Act of 1974, as amended, pursuant 
to exemption (k)(1) is justified for the following reasons:
    (A) Subsections (c)(3), (d)(1), and (d)(2). Records in this system 
of records may contain information concerning individuals that is 
properly classified pursuant to executive order. Application of 
exemption (k)(1) for such records may be necessary because access to 
and amendment of the records, or release of the accounting of 
disclosures for such records, could reveal classified information. 
Disclosure of classified records to an individual may cause damage to 
national security. Accordingly, application of exemption (k)(1) may be 
necessary.
    (B) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent an exemption is claimed from (d)(1) and (d)(2).
    (C) Subsection (e)(1). Records within this system may be properly 
classified pursuant to executive order. In the collection of 
information for privacy and civil liberties complaints or 
correspondence, it is not always possible to conclusively determine the 
relevance and necessity of particular information in the early stages 
of gathering information to respond to the correspondence or complaint. 
Additionally, disclosure of classified records to an individual may 
cause damage to national security. Accordingly, application of 
exemption (k)(1) may be necessary.
    (D) Subsections (e)(4)(G) and (H) and Subsection (f). These 
subsections are inapplicable to the extent exemption is claimed from 
the access and amendment provisions of subsection (d). Because portions 
of this system are exempt from the individual access and amendment 
provisions of subsection (d) for the reasons noted above, DoD is not 
required to establish requirements, rules, or procedures with respect 
to such access or amendment provisions. Providing notice to individuals 
with respect to the existence of records pertaining to them in the 
system of records or otherwise setting up procedures pursuant to which 
individuals may access, view, and seek to amend records pertaining to 
themselves in the system would potentially undermine national security 
and the confidentiality of classified information. Accordingly, 
application of exemption (k)(1) may be necessary.
    (E) Subsection (e)(4)(I). To the extent that this provision is 
construed to require more detailed disclosure than the broad 
information currently published in the system notice concerning 
categories of sources of records in the system, an exemption from this 
provision is necessary to protect national security and the 
confidentiality of sources and methods, and other classified 
information.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of records may in turn become part of the records maintained in 
this system. To the extent that copies of exempt records from those 
other systems of records are maintained in this system, the DoD claims 
the same exemptions for the records from those other systems that are 
entered into this system, as claimed for the prior system(s) of which 
they are a part, provided the reason for the exemption remains valid 
and necessary.

    Dated: February 17, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-03744 Filed 2-22-23; 8:45 am]
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