Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 60411 

Dated: August 29, 2023. 

Anna Davis, 

General Counsel. 

[FR Doc. 2023–18970 Filed 8–31–23; 8:45 am] 

BILLING CODE 6732–01–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 310 

[Docket ID: DoD–2023–OS–0060] 

RIN 0790–AL64 

Privacy Act of 1974; Implementation 

AGENCY: Office of the Secretary of 

Defense (OSD), Department of Defense 

(DoD). 

ACTION: Proposed rule. 

SUMMARY: The Department of Defense 

(Department or DoD) is giving 

concurrent notice of a new Departmentwide system of records pursuant to the 

Privacy Act of 1974 for the DoD–0019, 

‘‘Information Technology Access and 

Audit 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 of 1974, as 

amended, because of national security 

requirements and to avoid interference 

during the conduct of criminal, civil, or 

administrative actions or investigations. 

DATES: Send comments on or before 

October 31, 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: 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, OSD.DPCLTD@mail.mil; 

(703) 571–0070. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In accordance with the Privacy Act of 

1974, the DoD is establishing a new 

Department-wide system of records 

titled ‘‘Information Technology Access 

and Audit Records,’’ DoD–0019. The 

purpose of this system of records is to 

support information systems being 

established within the DoD using the 

same categories of data for the same 

purposes. This system of records covers 

DoD’s maintenance of records related to 

requests for user access, attempts to 

access, granting of access, records of 

user actions for DoD information 

technology (IT) systems, and user 

agreements. This includes details of 

programs, databases, functions, and 

sites accessed and/or used, and the 

information products created, received, 

or altered during the use of IT systems. 

The system consists of both electronic 

and paper records and will be used by 

DoD components and offices to 

maintain records about individuals who 

have user agreements, user access to and 

activity on networks, computer systems, 

applications, databases, or other digital 

technologies. 

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 that 

provide 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 DoD–0019, 

‘‘Information Technology Access and 

Audit Records.’’ The DoD proposes to 

exempt portions of this system of 

records from certain provisions of the 

Privacy Act because information in this 

system of records may fall within the 

scope of the following Privacy Act 

exemptions: (k)(1) and (k)(2). 

The DoD proposes to exempt this 

system of records because some of these 

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. 

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 

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 and DoD Manual 

5200.01, Volumes 1 and 3. 

The DoD is also proposing this 

exemption rule because this system of 

records may contain investigatory 

material compiled for law enforcement 

purposes within the scope of 5 U.S.C. 

552a(k)(2). This exemption allows DoD 

entities to claim an exemption for 

systems of records that contain 

investigatory materials compiled for law 

enforcement purposes, other than 

material within the scope of 5 U.S.C. 

552a(j)(2), which describes certain 

material related to the enforcement of 

criminal laws maintained by principalfunction criminal law enforcement 

agencies. The Department 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 

DoD–0019, ‘‘Information Technology 

Access and Audit 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 


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60412 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 

(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. 

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(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 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 us 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 

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’’ 

It has been determined that this rule 

does not have federalism implications. 

This rule does not have substantial 

direct effects on the States, on the 

relationship between the Federal 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

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 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 AMENDEMENT 

OF INDIVIDUAL RECORDS UNDER 

THE PRIVACY ACT OF 1974 

■ 1. The authority citation for part 310 

continues to read as follows: 

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

■ 2. Amend § 310.13 by adding 

paragraph (e)(14) to read as follows: 

§ 310.13 Exemptions for DoD-wide 

systems. 

* * * * * 

(e) * * * 

(14) System identifier and name. 

DoD–0019, ‘‘Information Technology 

Access and Audit Records.’’ 

(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) and 

(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). 

(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)(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 he might disclose the 

records or the 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; 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. Amendment of such 

records could also impose a highly 

impracticable administrative burden by 

requiring investigations to be 

continuously reinvestigated. 

(B) Subsections (d)(3) and (4). These 

subsections are inapplicable to the 

extent an exemption is claimed from 

subsections (d)(1) and (2). Accordingly, 

exemptions from subsections (d)(3) and 


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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 60413 

1 17 U.S.C. 407, 407(b). 

2 Id. at 101. 

3 Id. at 408(b)(2). Section 408(b) also sets out the 

deposit requirements for the registration of 

unpublished works (id. at 408(b)(1)), works first 

published outside of the United States (id. at 

408(b)(3)), and contributions to collective works (id. 

at 408(b)(4)). 

4 Id. at 408(b). Although section 408 states that 

copies deposited pursuant to the mandatory deposit 

provision in section 407 may be used to satisfy the 

registration deposit requirement in section 408, in 

practice, the Office treats copies of works submitted 

for registration as satisfying the mandatory deposit 

requirement (assuming the deposit requirements are 

the same), and not vice versa. 37 CFR 202.19(f)(1), 

202.20(e); see Registration of Claims to Copyright 

Deposit Requirements, 43 FR 763, 768 (Jan. 4, 1978). 

5 17 U.S.C. 704(b), 704(d). Deposits of works 

submitted under either sections 407 and 408 are 

‘‘property of the United States Government’’ and 

can be used by the Library for its collections. Id. 

at 704(a), 704(b). 

(d)(4) are claimed pursuant to (k)(1) and 

(k)(2). 

(C) Subsection (e)(1). Additionally, 

records within this system may be 

properly classified pursuant to 

executive order. The collection of 

information pertaining to the use of 

government information technology and 

data systems may include classified 

records, and it is not always possible to 

conclusively determine the relevance 

and necessity of such information in the 

early stages of a collection. In some 

instances, it will be only after the 

collected information is evaluated in 

light of other information that its 

relevance and necessity can be assessed. 

Further, disclosure of classified records 

to an individual may cause damage to 

national security. Additionally, in the 

collection of information for 

investigatory or law enforcement 

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 investigatory or 

law enforcement determinations. 

Accordingly, application of exemptions 

(k)(1) and (2) may be necessary. 

(D) Subsections (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 national security, 

the confidentiality of sources of 

information and to protect the privacy 

and physical safety of witnesses and 

informants. Accordingly, application of 

exemptions (k)(1) and (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 exemptions (k)(1) and (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: August 24, 2023. 

Aaron T. Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2023–18681 Filed 8–31–23; 8:45 am] 

BILLING CODE 5001–06–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 202 

[Docket No. 2023–3] 

Access to Electronic Works 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Copyright Office is 

issuing a notice of proposed rulemaking 

to update its regulation governing 

electronic deposits of published works 

submitted to the Office that have been 

selected for addition to the collections 

of the Library of Congress. The current 

regulation permits the Library to collect 

and provide limited on-site access to 

groups of newspapers electronically 

submitted for registration, as well as 

electronic serials and books submitted 

for mandatory deposit. The proposed 

rule expands the categories of electronic 

deposits covered by the regulation with 

the same limitations on access as are 

currently in place. The proposed 

changes are part of ongoing steps by the 

Library and the Office to encourage the 

submission of works in electronic form 

and reduce the need for copyright 

owners to deposit physical copies. 

DATES: Written comments must be 

received by no later than 11:59 p.m. 

Eastern Time on October 2, 2023. Reply 

written comments must be received no 

later than 11:59 p.m. Eastern Time on 

October 16, 2023. 

ADDRESSES: For reasons of government 

efficiency, the Copyright Office is using 

the regulations.gov system for the 

submission and posting of public 

comments in this proceeding. All 

comments are therefore to be submitted 

electronically through regulations.gov. 

Specific instructions for submitting 

comments are available on the 

Copyright Office website at https://

www.copyright.gov/rulemaking/ 

edeposit-access. 

FOR FURTHER INFORMATION CONTACT: 

Rhea Efthimiadis, Assistant to the 

General Counsel, by email at meft@

copyright.gov or telephone at 202–707– 

8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Copyright Act provides two 

sources of materials that can be selected 

by the Library of Congress for its 

collections. The first is the ‘‘mandatory 

deposit’’ requirement set forth in section 

407 of title 17. Under section 407, 

owners of copyright-protected works 

published in the United States must 

generally deposit two complete copies 

of the best edition of the work ‘‘for the 

use or disposition of the Library of 

Congress.’’ 1 ‘‘The ‘best edition’ of a 

work’’ is defined as ‘‘the edition, 

published in the United States at any 

time before the date of deposit, that the 

Library of Congress determines to be 

most suitable for its purposes.’’ 2 The 

Office’s regulations, including § 202.19 

and Appendix B of part 202, set forth 

rules and criteria for the different types 

of works subject to mandatory deposit. 

The second source of materials is 

section 408, which requires applicants 

seeking to register the copyright in 

published works to provide the Office 

with ‘‘two complete copies or 

phonorecords of the best edition.’’ 3 To 

avoid the duplication of deposits, 

section 408 specifies that copies or 

phonorecords deposited under section 

407 ‘‘may be used to satisfy the deposit 

provisions’’ of section 408 if they ‘‘are 

accompanied by the prescribed 

application and fee.’’ 4 Registration 

deposits are ‘‘available to the Library of 

Congress for its collections,’’ and items 

not selected by the Library are retained 

by the Office for a period of time.5

Both sections 407 and 408 grant the 

Register of Copyrights broad regulatory 

authority to specify the nature of the 


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