Privacy Act of 1974; Implementation, 104069-104071 [2024-29916]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 89, Number 245 (Friday, December 20, 2024)]
[Proposed Rules]
[Pages 104069-104071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29916]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2024-OS-0137]
RIN 0790-AL80


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense, 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 modified system of records titled ``Defense 
Sexual Assault Incident Database,'' DHRA 06, and this rulemaking, which 
exempts portions of this system of records from certain provisions of 
the Privacy Act to avoid interference during the conduct of criminal, 
civil, or administrative actions or investigations.

DATES: Send comments on or before February 18, 2025.

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 
05F16, 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 Office of the 
Secretary of Defense is modifying and reissuing a system of records 
titled ``Defense Sexual Assault Incident Database,'' DHRA 06. This 
system of records was originally established to centralize case-level 
sexual assault data involving a member of the Armed Forces, in a manner 
consistent with law and DoD regulations for Unrestricted and Restricted 
reporting and to facilitate reports to Congress on claims of 
retaliation in connection with an Unrestricted Report of sexual assault 
made by or against a member of the Armed Forces.

II. Privacy Act Exemption

    The Privacy Act permits Federal agencies to exempt eligible records 
in a system of records from certain

[[Page 104070]]

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 
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 DHRA 06, ``Defense Sexual Assault Incident 
Database,'' 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). The DoD is proposing to claim exemptions from 
several provisions of the Privacy Act, including various access, 
amendment, disclosure of accounting, and notice requirements, pursuant 
to 5 U.S.C. 552a(k)(2).
    A notice of a modified system of records for DHRA 06, ``Defense 
Sexual Assault Incident Database,'' 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 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 proposed rule is not a significant regulatory action under 
these executive orders.
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 proposed 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 proposed 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 proposed 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; 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 proposed 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 proposed 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 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 proposed 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 proposed to be 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 32 CFR part 310 continues to read as 
follows:

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

0
2. Amend Sec.  310.29 by adding paragraph (c)(30) to read as follows:


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

* * * * *
    (c) * * *
    (30) System identifier and name. DHRA 06, Defense Sexual Assault 
Incident Database.
    (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:
    (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

[[Page 104071]]

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) are claimed 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 
individuals providing information, including witnesses, victims, 
informants, or others. 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: December 12, 2024.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2024-29916 Filed 12-19-24; 8:45 am]
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