This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

495 

Vol. 86, No. 3 

Wednesday, January 6, 2021 

1We note that CISA was created in 2018, and that 

the CFATS program was previously run by an 

element of the Department of Homeland Security 

with a different name. In this document, we refer 

to CISA when describing present-day actions, and 

DHS when referring to actions that took place prior 

to 2018. 

2The Protecting and Securing Chemical Facilities 

from Terrorist Attacks Act of 2014 (also known as 

the CFATS Act of 2014, Public Law 113–254) 

codified the CFATS program into the Homeland 

Security Act of 2002. See 6 U.S.C. 621 et seq., as 

amended by Public Law 116–136, Sec. 16007 

(2020). 

3See 6 CFR 27.200(b)(2). 

4See 6 CFR 27.220. 

5Appendix A to the CFATS Final Rule, 72 FR 

65396, 65420–65434 (Nov. 20, 2007). 

DEPARTMENT OF HOMELAND 

SECURITY 

6 CFR Part 27 

[Docket No. CISA–2020–0014] 

RIN 1670–AA03 

Removal of Certain Explosive 

Chemicals From the Chemical Facility 

Anti-Terrorism Standards 

AGENCY: Cybersecurity and 

Infrastructure Security Agency, DHS. 

ACTION: Advance Notice of Proposed 

Rulemaking (ANPRM). 

SUMMARY: The Cybersecurity and 

Infrastructure Security Agency (CISA) is 

considering removing all 49 Division 1.1 

explosive chemicals of interest from 

Appendix A of the Chemical Facility 

Anti-Terrorism Standards (CFATS) 

regulations. Currently, both CISA and 

the Bureau of Alcohol, Tobacco, 

Firearms and Explosives (ATF) regulate 

facilities possessing these chemicals for 

security concerns. Removing these 

chemicals of interest from coverage 

under CFATS would reduce regulatory 

requirements for facilities currently 

covered by both CFATS and ATF’s 

regulatory frameworks and relieve 

compliance burdens for a small number 

of affected facilities. 

DATES: Comments on this ANPRM must 

be received by March 8, 2021. 

ADDRESSES: You may submit comments, 

identified by docket number CISA– 

2020–0014 through the Federal 

eRulemaking Portal available at http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

Instructions: All comments received 

via https://www.regulations.gov will be 

posted to the public docket at https://

www.regulations.gov, including any 

personal information provided. 

Do not submit comments that include 

trade secrets, confidential commercial 

or financial information, Chemicalterrorism Vulnerability Information 

(CVI), Protected Critical Infrastructure 

Information (PCII), or Sensitive Security 

Information (SSI) directly to the public 

regulatory docket. Contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section below 

with questions about comments 

containing such protected information. 

CISA will not place comments 

containing such protected information 

in the public docket and will handle 

them in accordance with applicable 

safeguards and restrictions on access. 

Additionally, CISA will hold them in a 

separate file to which the public does 

not have access and place a note in the 

public docket that CISA has received 

such protected materials from the 

commenter. If CISA receives a request to 

examine or copy this information, CISA 

will treat it as any other request under 

the Freedom of Information Act (FOIA), 

5 U.S.C. 552, and the Department’s 

FOIA regulation found in part 5 of Title 

6 of the Code of Federal Regulations 

(CFR). 

Docket: For access to the docket and 

to read comments received visit http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Lona Saccomando, (703) 603–4868, 

CISARulemaking@cisa.dhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Regulatory Information 

CISA is issuing this Advance Notice 

of Proposed Rulemaking (ANPRM) to 

solicit comments on the advisability of 

removing Division 1.1 explosives from 

Appendix A to the Chemical Facility 

Anti-Terrorism Standards (CFATS) 

regulations located at 6 CFR part 27. As 

described below, we believe that these 

regulations may be unnecessarily 

burdensome for facilities that are 

already subject to security regulations 

for the same chemicals by another 

Federal agency, ATF. We encourage 

comments describing the nature of 

compliance operations in cases where 

regulatory duplication and overlap may 

exist, as well as on the costs and 

benefits of CFATS-specific security 

measures. 

II. Background 

CISA’s CFATS program is an 

important part of our nation’s 

counterterrorism efforts. The agency 

works with industry stakeholders to 

keep dangerous chemicals out of the 

hands of persons or organizations who 

wish to harm the United States. Since 

the CFATS program was created, the 

Department of Homeland Security 

(DHS) 1 has engaged with industry 

representatives to identify high-risk 

chemical facilities to ensure security 

measures are in place to reduce the risks 

associated with their possession of 

Chemicals of Interest (COI) listed on 

Appendix A to the CFATS regulations. 

The progress made in securing high-risk 

chemical facilities through the CFATS 

program since its implementation has 

significantly enhanced the security of 

the nation’s chemical infrastructure. 

The CFATS program identifies 

chemical facilities of interest and 

regulates the security of high-risk 

chemical facilities through risk-based 

performance standards.2 The COI are 

listed in Appendix A to the CFATS 

regulations. If chemical facilities of 

interest possess the COI in the amounts 

and concentrations listed in Appendix 

A, chemical facilities of interest must 

complete and submit a Top-Screen 

survey to CISA.3 CISA evaluates the 

information submitted in a Top-Screen 

and performs a risk assessment. Based 

upon this risk assessment, CISA 

determines which chemical facilities of 

interest qualify as high risk and are 

subject to full coverage under CFATS. 

Each of these covered chemical facilities 

is assigned a tier that ranges from Tier 

1 (the highest risk of the high-risk 

covered chemical facilities) to Tier 4 

(the lowest risk of the high-risk covered 

chemical facilities).4 A facility that is 

determined to present a high-risk is 

required to develop and submit a Site 

Security Plan (SSP) addressing 18 riskbased performance standards containing 

physical security, cybersecurity, and 

various other security-focused measures 

and procedures. 

On November 20, 2007, DHS 

published a list of COI in Appendix A 

to 6 CFR part 27.5 The final version of 


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496 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Proposed Rules 

6These exceptions include explosives which 

DOT uses a generic shipping name with the suffix 

‘‘N.O.S.’’ or ‘‘not otherwise specified’’, and articles 

or devices listed on DOT’s Hazardous Materials 

Table at 49 CFR 172.101. See 75 FR at 65402–03. 

7See 27 CFR part 555, subpart C. 

8See Public Law 109–295, sec. 550 (Oct. 4, 2006) 

(codified as amended at 6 U.S.C. 621(3)(B) and (4)). 

9See Chemical Facility Anti-Terrorism Standards; 

Advance Notice of Rulemaking, 71 FR 78276, 78290 

(Dec. 28, 2006). 

10See Chemical Facility Anti-Terrorism 

Standards; Interim Final Rule, 72 FR 17688, 17718– 

19 (Apr. 9, 2007). 

11See 27 CFR part 555, subpart K. 

12See 18 U.S.C. 843(f) and 27 CFR 555.24. 

13See 18 U.S.C. 843 and 27 CFR part 555, 

subparts D and E. 

14 ‘‘Standoff distance’’ refers to the requirement 

that explosive materials be stored a prescribed 

distance away from inhabited buildings, public 

highways, other magazines, and other 

infrastructure. See 27 CFR 555.218–224. 

15See 27 CFR part 555, subpart K. 

16Exec. Order No. 13,771, Sec. 1., 82 FR 9339 at 

9339 (Feb. 3, 2017). 

17Exec. Order No. 12,866, Sec. 1(b)(10), 58 FR 

51735 (Oct. 4, 1993). 

Appendix A included 49 chemicals that 

the Department of Transportation (DOT) 

lists as Class 1, Division 1.1 explosives 

at 49 CFR 172.101, with two broad 

exceptions.6 Appendix A classifies all 

Division 1.1 explosives as posing both 

Release-Explosive and Theft/diversionExplosives/Improvised Explosive 

Device Precursor (Theft/diversion-EXP/ 

IEDP) security issues. 

DHS included Division 1.1 explosives 

in Appendix A notwithstanding the 

Department of Justice’s ATF regulation 

of the purchase, possession, storage, and 

transportation of the same types of 

explosives.7 In an ANPRM that 

preceded the promulgation of the 

CFATS regulations and Appendix A, 

DHS noted that the authorizing statute 8

for CFATS excluded many types of 

facilities that were already the subject of 

existing federal security regulations.9

This suggested a possibility of 

regulatory overlap between CFATS and 

ATF regulatory programs. DHS stated 

that ‘‘where there is concurrent 

jurisdiction [between DHS and ATF or 

another Federal agency], the Department 

will work closely with other Federal 

agencies [(e.g., ATF)] to ensure that 

regulated facilities can comply with 

applicable regulations while minimizing 

any duplication.’’ 10

Division 1.1 explosives included in 

Appendix A are ‘‘explosive materials’’ 

as defined in 18 U.S.C. 841(c) and are 

subject to ATF regulation. ATF 

regulations require persons storing any 

explosives to follow certain safety and 

theft-prevention precautions, including 

specific requirements governing the 

secure storage of explosives and 

inspection of magazines.11 While ATF 

regulations and CFATS regulations are 

both geared towards preventing the theft 

and release of explosive materials, the 

two agencies do not regulate facilities in 

a similar manner, which can potentially 

lead to additional security efforts and 

regulatory compliance burdens for 

Division 1.1 explosives. The business 

premises of an explosives licensee or 

permittee is subject to entry by ATF for 

the specific purpose of inspective or 

examining records and documents 

required to be kept by a licensee or 

permitee pursuant to 18 U.S.C. chapter 

40 and its implementing regulations, as 

well as any explosive materials kept or 

stored at the premises.12 While 

magazines in which explosive materials 

are stored must meet standards of public 

safety and security against theft as 

provided in 27 CFR part 555, subpart K, 

ATF may not require additional 

measures—such as those described 

above in the CFATS regulations—to 

address security risks or vulnerability to 

terrorist attack or incident of a business 

premises when issuing a new or renewal 

license or permit.13

CFATS and ATF regulations differ 

substantially, and the interaction 

between them can be complex. In many 

instances, compliance with the 

measures required to comply with ATF 

regulations and industry best practices 

result in some facilities not tiering as 

high-risk under CFATS. Therefore, this 

small portion of facilities has no 

additional regulatory obligations under 

CFATS after submission of a TopScreen. For example, all explosives 

must be stored in compliance with ATF 

standoff-distance 14 and similar 

requirements, which mitigate the 

consequences of an explosion at the 

facility. The consequences from an 

explosion is a factor that CISA uses to 

determine whether a facility is highrisk. Because facilities that possess 

threshold quantities of release-explosive 

COI are required to comply with ATF 

standoff/storage regulations, CISA has 

never designated a facility as high risk 

on the basis that the facility contains 

COI classified as a ‘‘release-explosives’’ 

threat. 

While the above is an example of a 

way in which CFATS and ATF 

regulations dovetail effectively, 

sometimes the regulations do not 

correspond so cleanly. For example, a 

small number of facilities, despite 

adhering to ATF regulations regarding 

the secure storage of explosive 

materials,15 have been: (1) Considered 

high-risk under CFATS as a result of 

possession of explosives under the 

‘‘theft/diversion’’ security issue, and (2) 

required to implement additional 

security measures to satisfy CFATS 

requirements, such as implementing 

cybersecurity and detection 

mechanisms. 

The partial regulatory overlap has led 

to frustration among some stakeholders 

in the explosives community and has 

led CISA to conduct a comprehensive 

review of the respective programs’ 

regulatory requirements. As a result, 

CISA is considering modifications to 

Appendix A to remove Division 1.1 

explosive chemicals from the COI listed 

in Appendix A. 

III. Discussion 

It is the policy of the executive branch 

to prudently manage the costs 

associated with governmental 

imposition of private expenditures 

required to comply with Federal 

regulations.16 Agencies have long been 

charged to ‘‘avoid regulations that are 

inconsistent, incompatible, or 

duplicative with [their] other 

regulations or those of other Federal 

agencies.’’ 17 Given these and other 

polices, and given the partial overlap 

between DHS and ATF regulations on 

Division 1.1 explosives, as well as the 

relatively small number of facilities 

subject to this overlap, CISA is 

reconsidering whether to regulate 

facilities that possess explosives subject 

to ATF regulations is ‘‘prudent and 

financially responsible in the 

expenditure of funds, from both public 

and private sources.’’ 

At this time, CISA is considering 

whether the elimination of the burden 

of dual regulation of Division 1.1 

explosive chemicals between CISA and 

ATF programs could be warranted. To 

this end, CISA is soliciting comments 

on amending Appendix A to remove all 

Division 1.1 explosives from the list of 

COI listed in Appendix A. If Appendix 

A is so amended, facility operators 

would no longer be required to count 

Division 1.1 explosives when 

determining whether their facilities are 

subject to the Top-Screen requirements 

pursuant to 6 CFR 27.200. 

At the time of the promulgation of 

CFATS, DHS believed that the increased 

security value of having high-risk 

facilities that possessed Division 1.1 

explosives regulated under CFATS was 

worth the increased cost. In 2007, DHS 

distinguished its approach from the 

deference that the Environmental 

Protection Agency (EPA) had shown 

ATF regulations by noting that ‘‘EPA’s 

decisions were based on safety and the 

prevention of an accidental release [and 

that] DHS is concerned with an 


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Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Proposed Rules 497 

18 72 FR 65396, 65403 (emphasis added). 

19Release-Explosive chemicals have potential to 

affect populations within and beyond the facility if 

intentionally denotated. 72 FR 65396, 65397 (Nov. 

20, 2007). 

20Theft/Diversion-Explosives EXP/IEDP 

chemicals could be stolen or diverted and used in 

explosives or IEDs. Id. at 65397. 

21List of Regulated Substances and Thresholds 

for Accidental Release Prevention; Amendments, 63 

FR 640, 641 (Jan. 6, 1998) (announcing effective 

date of final rule amending 40 CFR part 68). 

22 Id. 

23See 27 CFR part 555. 

24See 27 CFR 555.207–211 and 555.30. 

25United States Bomb Data Center, 2019 

Explosives Incident Report, 15 (2019), https://

www.atf.gov/file/143481/download. 

26 Id. at 16. The number of reported losses at 

commercial facilities nationwide has increased 

somewhat in the past five years, from 95 in 2015 

to 113 in 2019. 

27CFATS Advance Notice of Proposed 

Rulemaking, 79 FR 48693 (Aug. 18, 2014). 

28CFATS Appendix A, Notice of Public Meeting, 

80 FR 62504 (Oct. 16, 2015). 

29The public comments provided in response to 

the August 2014 ANPRM are posted on 

www.regulations.gov under docket number DHS– 

2014–0016. 

30Retrospective Analysis of the Chemical Facility 

Anti-Terrorism Standards, 85 FR 37393 (Jun. 22, 

2020). 

intentional attack on an explosives 

facility.’’ 18 For these reasons, CFATS 

listed Division 1.1 explosives as 

presenting both Release-Explosive 19

and Theft/diversion-EXP/IEDP 20

security issues. 

However, since implementation of the 

CFATS program, CISA has found that, 

for many facilities, possession of 

Division 1.1 explosives at the quantity 

triggering reporting for the ReleaseExplosive security issue under CFATS 

(i.e., 5,000 pounds or more) would not 

result in the risk of a large number of 

fatalities if attacked. Thus, CISA does 

not currently regulate any facilities for 

possession of Division 1.1 explosives for 

the Release-Explosive security concern. 

This is because facilities that possess 

Division 1.1 explosives are required to 

comply with ATF’s table of distances for 

storage of explosive materials (i.e. 

standoff distances) at 27 CFR 555.218– 

224. The enhanced CFATS risk-tiering 

methodology implemented beginning in 

October 2016 accounts for the increased 

security resulting from ATF’s table-ofdistance regulations, which protects 

against offsite impacts of an explosive 

release, whether accidental or 

intentional. 

We note that while ATF’s and CISA’s 

regulations differ substantially, other 

agencies have deferred to ATF’s 

explosives expertise when considering 

regulation of explosives facilities. In 

1998, while developing the Risk 

Management Plan regulations, the EPA 

issued a final rule removing Division 1.1 

explosives from its list of regulated 

substances for accidental release 

prevention.21 In removing Division 1.1 

explosives from regulation, the EPA 

concluded that the ‘‘. . . current [ATF 

and other] regulations and current and 

contemplated industry practices 

promote safety and accident prevention 

in storage, handling, transportation, and 

use of explosives,’’ making them 

adequate for EPA’s purposes.22 While 

the ATF regulates explosives materials 

and the CFATS regulates the chemical 

facilities possessing explosive materials, 

CISA notes that ATF’s current 

regulations address a number of the 

same safety and security precautions as 

the CFATS regulations for Division 1.1 

explosives. 

Other facilities that possess Division 

1.1 explosives are considered high-risk 

under CFATS under the Theft/ 

diversion-EXP/IEDP security issue, in 

part because of the concerns presented 

by the prospect of physical or cyberfocused security breaches. CISA 

currently regulates 85 facilities that 

possess Division 1.1 explosive COI 

under the Theft/diversion-EXP/IEDP 

security issue. Many of these facilities 

possess other COI regulated by CFATS 

that are not Division 1.1 explosives. If 

Division 1.1 explosives were removed 

from Appendix A, CISA estimates that 

24 facilities would no longer be 

regulated as high-risk under CFATS. 

Though CFATS includes 

cybersecurity and some other 

requirements such as security plans, 

security equipment, training, or 

recording/reporting of threats that are 

not accounted for in ATF’s framework, 

ATF regulations include some 

important theft-prevention and 

inventory-tracking standards 23 and 

adherence with ATF requirements is 

verified through periodic regulatory 

inspections of ATF’s construction and 

locking requirements for magazines as 

well as reporting of theft/loss.24 For 

these reasons, it may be appropriate to 

rely solely on ATF’s standards to 

address the threat that Division 1.1 

explosives could be diverted. Further 

supporting this argument is the fact that 

ATF’s secure-storage and related 

requirements appear to have 

successfully driven down the number of 

thefts of commercial explosives 

nationwide—with only three such thefts 

having been reported during the 2019 

calendar year.25 However, there has 

been a slight increase in the number of 

reported losses.26 ATF’s standards are 

applied across the explosives industry, 

covering thousands of entities that 

manufacture, distribute, receive, ship, 

and/or import explosives, while DHS’ 

standards are applied only to a small 

number of the highest-risk facilities (85 

chemical facilities). Given the wide 

application of ATF regulations across 

the explosives industry and their 

success in limiting thefts of commercial 

explosives, we believe there may be 

value in uniform application of security 

measures for these materials. 

IV. Request for Comments 

Prior to implementing the enhanced 

tiering methodology in October of 2016, 

DHS published a CFATS ANPRM on 

August 18, 2014, to seek public 

comment on ways in which the CFATS 

regulation and program might be 

improved.27 The ANPRM solicited 

public comments on any and all aspects 

of 6 CFR part 27, including Appendix A. 

The Department also conducted seven 

listening sessions for the ANPRM. In 

addition, the Department published a 

notice on October 16, 2015 in the 

Federal Register soliciting additional 

public comments through November 30, 

2015 about Appendix A to the CFATS 

regulation and conducted a roundtable 

discussion and public listening session 

on October 27, 2015.28

In response to the 2014 CFATS 

ANPRM, the Department received 

several detailed comments relevant to 

the coverage of Division 1.1 explosives 

under CFATS generally encouraging the 

Department to remove Division 1.1 

explosives for both release-explosive 

and theft/diversion-EXP/IEDP security 

issues.29 Commenters also generally 

suggested that ATF’s regulations 

governing commerce in explosives 

located at 27 CFR part 555 are sufficient 

and that the security obligations 

imposed by CFATS under 6 CFR part 27 

are unnecessary. CISA also published a 

retrospective economic analysis of the 

CFATS program and received one 

responsive comment about facilities that 

are regulated by CFATS and the ATF.30

In light of the time that has passed 

since 2015, and the changes to the 

tiering methodology made since then, 

CISA is soliciting comments from 

stakeholders on the current coverage of 

release-explosive and theft/diversionEXP/IEDP COI under CFATS and on the 

proposed elimination of these COI from 

Appendix A. Specifically: 

(1) Should CISA remove Division 1.1 

explosives for consideration as a 

release-explosive security concern? Why 

or why not? 

(2) Should CISA remove Division 1.1 

explosives for consideration as a theft/ 

diversion-EXP/IEDP security concern? 

Why or why not? 


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498 Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Proposed Rules 

(3) How would the removal of 

Division 1.1 explosives impact the 

security posture of chemical facilities? 

(4) Would the removal of Division 1.1 

explosives impact the regulatory burden 

of CFATS on chemical facilities? If so, 

in what ways and to what extent? 

V. Signature 

The Acting Secretary of Homeland 

Security, Chad F. Wolf, having reviewed 

and approved this document, has 

delegated the authority to electronically 

sign this document to Chad R. Mizelle, 

who is the Senior Official Performing 

the Duties of the General Counsel for 

DHS, for purposes of publication in the 

Federal Register. 

Chad R. Mizelle, 

Senior Official Performing the Duties of the 

General Counsel Department of Homeland 

Security. 

[FR Doc. 2020–27768 Filed 1–5–21; 8:45 am] 

BILLING CODE 4410–10–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 310 

[Docket ID DoD–2020–OS–0095] 

RIN 0790–AK96 

Privacy Act of 1974; Implementation 

AGENCY: Department of Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: The DoD is giving concurrent 

notice of an updated system of records 

pursuant to the Privacy Act of 1974 for 

the DoD 0004 ‘‘Defense Repository for 

Common Enterprise Data (DRCED)’’ 

system of records and this proposed 

rulemaking. In this proposed 

rulemaking, the Department proposes to 

exempt portions of the DRCED system of 

records from certain provisions of the 

Privacy Act because of national security 

requirements. 

DATES: Send comments on or before 

March 8, 2021. 

ADDRESSES: You may submit comments, 

identified by docket number and title, 

by any of the following methods: 

• Federal Rulemaking Portal: https:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: The DoD cannot receive 

written comments at this time due to the 

COVID–19 pandemic. Comments should 

be sent electronically to the docket 

listed above. 

Instructions: All submissions received 

must include the agency name and 

docket 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. 

Lyn Kirby, Chief, Defense Privacy, Civil 

Liberties, and Transparency Division, 

Directorate for Oversight and 

Compliance, Department of Defense, 

4800 Mark Center Drive, Mailbox #24, 

Suite 08D09, Alexandria, VA 22350– 

1700; OSD.DPCLTD@mail.mil; (703) 

571–0070. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The DoD 0004 DRCED system of 

records is a DoD-wide system of records 

that supports multiple information 

systems that provide DoD-wide and 

component-level enterprise solutions for 

integrating and analyzing targeted data 

from existing DoD systems to develop 

timely, actionable, and insightful 

conclusions in support of national 

strategies. These systems are used to 

automate financial and business 

transactions, perform cost-management 

analysis, produce oversight and audit 

reports, and provide critical data linking 

to improve performance of mission 

objectives. These systems are also 

capable of creating predictive analytic 

models based upon specific data 

streams to equip decision makers with 

critical data necessary for execution of 

fiscal and operational requirements. 

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 the 

provisions providing 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 typically first 

go through the rulemaking process to 

provide public notice and an 

opportunity to comment on the 

proposed exemption. 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 0004 

DRCED system of records. The DoD 

proposes an exemption for DoD 0004 

DRCED because some of its 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. DoD is 

proposing to claim an exemption from 

the access and amendment 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 (DoDI) 5200.01 and 

DoD Manual (DoDM) 5200.01, Volumes 

1 and 3. 

If implemented, this proposed rule 

will deny an individual access under 

the Privacy Act to only those portions 

of records for which the claimed 

exemption applies. In addition, records 

in the DoD 0004 DRCED 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 modified system of 

records for DoD 0004 DRCED 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 proposed rule is not a significant 

regulatory action. 

Executive Order 13771, ‘‘Reducing 

Regulation and Controlling Regulatory 

Costs’’ 

This proposed rule has been deemed 

not significant under Executive Order 

(E.O.) 12866, ‘‘Regulatory Planning and 

Review,’’ therefore, the requirements of 

E.O. 13771, ‘‘Reducing Regulation and 

Controlling Regulatory Costs’’ do not 

apply. 

Congressional Review Act 

This proposed rule is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 


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