[Federal Register Volume 89, Number 95 (Wednesday, May 15, 2024)]
[Proposed Rules]
[Pages 42408-42410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09968]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2024-OS-0049]
RIN 0790-AL30


Privacy Act of 1974; Implementation

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

ACTION: Proposed rule.

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SUMMARY: The Department of Defense (Department or DoD) is giving 
concurrent notice of a new Department-wide system of records pursuant 
to the Privacy Act of 1974 for the DoD-0020, ``Military Human Resource 
Records'' system of records and this proposed rulemaking. In this 
proposed rulemaking, the Department proposes to exempt portions of this 
system of records from certain provisions of the Privacy Act because of 
national security requirements, and to prevent the undermining of 
evaluation materials used to determine potential for promotion.

DATES: Send comments on or before July 15, 2024.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods.
    * Federal eRulemaking 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 Regulatory Information Number 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, (703) 571-0070, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, the DoD is establishing 
a new DoD-wide system of records titled ``Military Human Resource 
Records,'' DoD-0020. This system of records describes DoD's collection, 
use, and maintenance of records about members of the armed forces, 
including active duty, reserve, and guard personnel. Records support 
Department requirements and individual Service members' careers, 
through the collection and management of personnel and employment data. 
This information includes individual's pay and compensation, education, 
assignment history, rank and promotion determinations, separation and 
retirement actions, and career milestones.

II. Privacy Act Exemption

    The Privacy Act allows Federal agencies to exempt eligible records 
in a system of records from certain provisions of the Act, including 
those that provide individuals with a right to request access to and 
amendment of their own 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 before the 
issuance of a final rule implementing the exemption.
    The DoD proposes to modify 32 CFR part 310 to add a new Privacy Act 
exemption rule for the DoD-0020, Military Human Resource Records system 
of records. The DoD proposes this exemption because some of its 
military personnel records may contain classified national security 
information and disclosure of those records to an individual 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. The DoD is proposing to claim an exemption from the 
access and amendment requirements and certain disclosure accounting 
requirements of the Privacy Act, pursuant to 5 U.S.C. 552a(k)(1), 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.
    In addition, the DoD proposes an exemption for this system of 
records because the records may contain evaluation material, including 
from other systems of records, that is used to determine potential for 
promotion in the armed services within the scope of 5 U.S.C. 
552a(k)(7). In some cases, such records may contain information 
pertaining to the identity of a source who furnished information to the 
Government under an express promise that the source's identity would be 
held in confidence (or prior to the effective date of the Privacy Act, 
under an implied promise). The DoD 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 disclosure of any information that 
would compromise the identity of confidential sources who might not 
have otherwise provided information to assist the Government.
    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-0020, ``Military 
Human Resource Records,'' 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, distributive impacts, and equity). Executive 
Order 13563

[[Page 42409]]

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 et seq.) 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 (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 to obtain approval from the Office of Management and 
Budget before using identical questions to collect information from 10 
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 compliance 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, 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. Amend Sec.  310.13 by adding paragraph (e)(15) to read as follows:


Sec.  310.13   Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (15) System identifier and name. DoD-0020, ``Military Human 
Resource Records.''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(3); (d)(1)-(4); (e)(1); (e)(4)(G), (H), and (I); and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1) and (k)(7).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsection (c)(3), (d)(1), and (d)(2).
    (1) Exemption (k)(1). Records in this system of records may contain 
information that is properly classified pursuant to executive order. 
Application of exemption (k)(1) 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.
    (2) Exemption (k)(7). Records in this system of records may contain 
evaluation material, including from other systems of records, used to 
determine potential for promotion in the Armed Forces of the United 
States. In some cases, such records may contain information pertaining 
to the identity of a source who furnished information to the Government 
under an express promise that the source's identity would be held in 
confidence (or prior to the effective date of the Privacy Act, under an 
implied promise). Application of exemption (k)(7) may be necessary 
because access to, amendment of, or release of the accounting of 
disclosures of such records could identify these confidential sources 
who might not have otherwise provided information to assist the 
Government; hinder the Government'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 (4). These subsections are inapplicable 
to the extent that an exemption is being claimed from subsections 
(d)(1) and (2).
    (C) Subsection (e)(1). In the collection of information for 
evaluation material used to determine potential for promotion in the 
Military Services,which may be incorporated into and/or maintained in 
military personnel records, it is not always possible to conclusively 
determine the relevance and necessity of particular information in the 
early stages of the evaluation process. 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 decision-
making can be assessed. Collection of such information may permit more 
informed

[[Page 42410]]

decision-making by the Department when making required disciplinary or 
personnel determinations. Additionally, the information collected may 
be properly classified pursuant to executive order. Accordingly, 
application of exemptions (k)(1) or (k)(7) 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 
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 the confidentiality of sources of 
information, the privacy and physical safety of witnesses and 
informants, and testing or examination material used solely to 
determine individual qualifications for appointment of promotion in the 
Federal service. Additionally, records in this system may be properly 
classified pursuant to executive order. Accordingly, application of 
exemptions (k)(1) and (k)(7) may be necessary.
    (F) Subsection (f). To the extent that portions of the system are 
exempt from the provisions of the Privacy Act concerning individual 
access and amendment of records, DoD is not required to establish rules 
concerning procedures and requirements relating to such provisions. 
Accordingly, application of exemptions (k)(1) and (k)(7) may be 
necessary.

    Dated: May 2, 2024.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2024-09968 Filed 5-14-24; 8:45 am]
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