[Federal Register Volume 89, Number 88 (Monday, May 6, 2024)]
[Rules and Regulations]
[Pages 37127-37130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09607]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2024-OS-0047]
RIN 0790-AL77


Privacy Act of 1974; Implementation

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

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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 system of records titled ``All-domain 
Anomaly Resolution Office (AARO) Report System,'' AARO-0001, and this 
rulemaking, which exempts portions of this system of records from 
certain provisions of the Privacy Act of 1974, as amended, because of 
national security. This rule is being published as a direct final rule 
as the Department does not expect to receive any adverse comments. If 
such comments are received, this direct final rule will be withdrawn 
and a proposed rule for comments will be published.

DATES: The rule will be effective on July 15, 2024 unless comments are 
received that would result in a contrary determination. If significant 
adverse comments are received, the DoD will publish a timely withdrawal 
of the rule in the Federal Register. Comments will be accepted on or 
before July 5, 2024.

ADDRESSES: You may submit comments, identified by docket number, 
Regulation Identifier Number (RIN), and title, by any of the following 
methods.
    * Federal Rulemaking Portal: http://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, DoD is establishing a 
new system of records titled ``All-domain Anomaly Resolution Office 
(AARO) Report System,'' AARO-0001. This system of records describes the 
AARO's collection, use, and maintenance of correspondence and reports 
submitted from current or former U.S. government employees, service 
members, or contractors with direct knowledge of U.S. Government 
programs or activities related to Unidentified Anomalous Phenomenon 
(UAP) dating back to 1945. This system also includes correspondence and 
reports submitted from members of the general public and government-
affiliated personnel on events related to UAP. The submitted 
information will be used to carry out AARO's mission, including to 
inform AARO's congressionally directed Historical Record Report.

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 and reveal 
sensitive sources and methods. 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, ``DoD 
Information Security Program and Protection of Sensitive Compartmented 
Information (SCI)'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/520001p.PDF?ver=cF1II-jcFGP6jfNrnTr8lQ%3d%3d); DoD Manual 5200.01, Volume 1, ``DoD 
Information Security Program: Overview, Classification, and 
Declassification'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/520001m_vol1.pdf?ver=2020-08-04-092500-203; 
and DoD Manual 5200.01, Volume 3, ``DoD Information Security Program: 
Protection of Classified Information'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/520001m_vol3.pdf?ver=MJfVD-nRd2HTyLSzDse9VQ%3d%3d).

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 
systems of records found in 32 CFR 310.29. 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 AARO-0001 is also published 
in this issue of the Federal Register.

Regulatory Analysis

Executive Order 12866, ``Regulatory Planning and Review,'' as Amended 
by Executive Order 14094, ``Modernizing Regulatory Review'' and 
Executive Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 12866 (as amended by Executive Order 14094) and 
13563 direct agencies to assess all costs and benefits of available 
regulatory alternatives and, if regulation is

[[Page 37129]]

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 direct final 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 (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. Chapter 501 
et seq.)

    The Paperwork Reduction Act (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 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 has federalism 
implications, imposes substantial direct requirement costs on State and 
local governments, and is not required by statute, or has federalism 
implications and preempts State law. 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 AMENDMENT 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. Amend Sec.  310.29 by adding paragraph (c)(29) to read as follows:


Sec.  310.29  Office of the Secretary of Defense (OSD) exemptions.

* * * * *
    (c) * * *
    (29) System identifier and name. AARO-0001, All-domain Anomaly 
Resolution Office (AARO) Report System.
    (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) and (d)(1) and (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 and reveal sensitive sources and methods. 
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)(2).
    (C) Subsection (e)(1). Records within this system may be properly 
classified pursuant to executive order. In the collection of 
information for AARO reporting and analysis purposes, it may not always 
be possible to conclusively determine the relevance and necessity of 
particular information in the early stages of these types of 
activities. Additionally, disclosure of classified records to an 
individual may cause damage to national security and reveal sensitive 
sources and methods. 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 in paragraphs 
(c)(29)(iii)(A) and (B) of this section, 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

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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: April 29, 2024.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2024-09607 Filed 5-3-24; 8:45 am]
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