[Federal Register Volume 88, Number 205 (Wednesday, October 25, 2023)]
[Proposed Rules]
[Pages 73301-73303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23299]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2023-OS-0098]
RIN 0790-AL66


Privacy Act of 1974; Implementation

AGENCY: Office of the Assistant to the Secretary of Defense for 
Privacy, Civil Liberties, and Transparency (OATSD(PCLT)), Department of 
Defense.

ACTION: Proposed rule.

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SUMMARY: The OATSD(PCLT) is giving notice of a proposed rule making for 
a new component system of records pursuant to the Privacy Act of 1974 
for the Army Safety Management Program Records (ASMPR), A0385-1 DAS. In 
this proposed rulemaking, the Department proposes to exempt portions of 
this system of records from certain provisions of the Privacy Act to 
protect the identity of confidential sources in reports prepared during 
accidents, mishaps, safety inspections, and workplace hazards 
investigations.

DATES: Send comments on or before December 26, 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.
    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, the Department of the 
Army is establishing a new system of records titled Army Safety 
Management Program Records (ASMPR), A0385-1 DAS. This system of records 
supports the prevention and management of injuries and illnesses due to 
work-related activities, and reduces its adverse impact on operational 
readiness. The system maintains records about individuals who suffer 
work-related injuries or illness caused by an accident, mishap, or 
hazard during work-related activities while on or off a DoD worksite, 
where there is a nexus to Army personnel, activities, or facilities/
equipment, and/or individuals found to have contributed to the 
accident, mishap, or hazard.

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 pursuant to 5 
U.S.C. 553(b)(1)-(3), (c), and (e). This proposed rule explains why an 
exemption is being claimed for this system of records and invites 
public comment, which DoD will consider

[[Page 73302]]

before the issuance of a final rule implementing the exemption.
    The Department of the Army proposes to modify 32 CFR 310.15 to add 
a new Privacy Act exemption rule for A0385-1 DAS, ``Army Safety 
Management Program Records (ASMPR),'' and to exempt portions of this 
system of records from certain provisions of the Privacy Act because 
some records may contain investigatory material compiled for law 
enforcement purposes within the scope of 5 U.S.C. 552a(k)(2), other 
than material within the scope of subsection (j)(2), which describes 
certain material related to the enforcement of criminal laws maintained 
by principal-function criminal law enforcement agencies. The Department 
of the Army therefore is proposing to claim 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, among other harms, the identification of 
actual or potential subjects of investigation and/or sources of 
investigative information and to avoid frustrating the underlying law 
enforcement purpose for which the records were collected. 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 A0385-1 DAS, Army Safety 
Management Program Records (ASMPR), 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 rulemaking 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 rulemaking 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 rulemaking 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(a) of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(2 U.S.C. 1532(a)) 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 rulemaking 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 rulemaking is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
because it would not, if promulgated, have a significant economic 
impact on a substantial number of small entities. This rulemaking 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; 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 rulemaking 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 has federalism 
implications, imposes substantial direct compliance costs on State and 
local governments, and is not required by statute, or has federalism 
implications and preempts State law. This rulemaking 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 proposed rule (and subsequent 
final 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 rulemaking will not have a substantial effect on Indian 
tribal governments.

List of Subjects in 32 CFR Part 310

    Privacy.

    Accordingly, the Department of Defense proposes to amend 32 CFR 
part 310 as follows:

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

0
1. The authority citation for 32 CFR part 310 continues to read as 
follows:

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

0
2. Section 310.15 is amended by adding paragraph (g)(36) to read as 
follows:


Sec.  310.15   Department of the Army exemptions.

* * * * *
    (g) * * *
    (36) System identifier and name. A0385-1 DAS, ``Army Safety 
Management Program Records (ASMPR).''
    (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), (I), and 
(f).
    (ii) Authority. 5 U.S.C. 552a (k)(2).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:

[[Page 73303]]

    (A) Subsections (c)(3), (d)(1), and (d)(2)--Exemption (k)(2). 
Records in this system of records may contain investigatory material 
compiled for law enforcement purposes other than material within the 
scope of 5 U.S.C. 552a(j)(2). Application of exemption (k)(2) may be 
necessary because access to, amendment of, or release of the accounting 
of disclosures of such records could: inform the record subject of an 
investigation of the existence, nature, or scope of an actual or 
potential law enforcement or disciplinary investigation, and thereby 
seriously impede law enforcement efforts by permitting the record 
subject and other persons to whom the subject might disclose the 
records or accounting of records to avoid criminal penalties, civil 
remedies, or disciplinary measures; interfere with a civil or 
administrative action or investigation by allowing the subject to 
tamper with witnesses or evidence, and to avoid detection or 
apprehension, which may undermine the entire investigatory process; or 
reveal confidential sources who might not have otherwise come forward 
to assist in an investigation and thereby hinder DoD's ability to 
obtain information from future confidential sources, and result in an 
unwarranted invasion of the privacy of others.
    (B) Subsection (d)(3), and (d)(4). These subsections are 
inapplicable to the extent that an exemption is being claimed from 
subsections (d)(1) and (2). Accordingly, exemptions from subsections 
(d)(3), and (d)(4) areclaimed pursuant to (k)(2).
    (C) Subsection (e)(1). In the collection of information for 
investigatory purposes it is not always possible to conclusively 
determine the relevance and necessity of particular information in the 
early stages of the investigation or adjudication. In some instances, 
it will be only after the collected information is evaluated in light 
of other information that its relevance and necessity for effective 
investigation and adjudication can be assessed. Collection of such 
information permits more informed decision-making by the Department 
when making required disciplinary determinations. Accordingly, 
application of exemption (k)(2) may be necessary.
    (D) Subsection (e)(4)(G) and (H). These subsections are 
inapplicable to the extent exemption is claimed from subsections (d)(1) 
and (2).
    (E) Subsection (e)(4)(I). To the extent that this provision is 
construed to require more detailed disclosure than the broad, generic 
information currently published in the system notice, an exemption from 
this provision is necessary to protect the confidentiality of sources 
of information and to protect the privacy and physical safety of 
witnesses and informants. Accordingly, application of exemption (k)(2) 
may be necessary.
    (F) Subsection (f). The agency's rules are inapplicable to those 
portions of the system that are exempt. Accordingly, application of 
exemption (k)(2) may be necessary.
    (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: October 17, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-23299 Filed 10-24-23; 8:45 am]
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