Federal Register / Vol. 88, No. 182 / Thursday, September 21, 2023 / Rules and Regulations 65129 

Original amendment submission 

date Date of final publication Citation/description 

*******

November 25, 2019 ....................... September 21, 2023 ...................... KAR Chapter 10:001 Section 1, Definitions, subsection (4)—Adjacent 

area. 

* * * * * 

■ 3. Amend § 917.17 by adding 

paragraph (e) to read as follows: 

§ 917.17 State regulatory program 

amendments not approved. 

* * * * * 

(e) We are not approving the 

following provision of the proposed 

Kentucky program amendments dated 

November 25, 2019: KAR Chapter 

10:001 Section 1, Subsection 26— 

Definition of ‘‘Long term treatment’’. 

[FR Doc. 2023–20013 Filed 9–20–23; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 310 

[Docket ID: DoD–2022–OS–0142] 

RIN 0790–AL62 

Privacy Act of 1974; Implementation 

AGENCY: Office of the Secretary of 

Defense (OSD), Department of Defense 

(DoD). 

ACTION: Final rule. 

SUMMARY: The Department of Defense 

(Department or DoD) is issuing a final 

rule to amend its regulations to exempt 

portions of the system of records titled 

CIG–16, ‘‘Inspector General 

Administrative Investigation Records,’’ 

(IGAIR) from certain provisions of the 

Privacy Act of 1974. 

DATES: This rule will be effective on 

October 23, 2023. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Rahwa Keleta, Privacy and Civil 

Liberties Division, Directorate for 

Privacy, Civil Liberties and Freedom of 

Information, Office of the Assistant to 

the Secretary of Defense for Privacy, 

Civil Liberties, and Transparency, 

Department of Defense, 4800 Mark 

Center Drive, Mailbox #24, Suite 08D09, 

Alexandria, VA 22350–1700; 

OSD.DPCLTD@mail.mil; (703) 571– 

0070. 

SUPPLEMENTARY INFORMATION: 

Discussion of Comments and Changes 

The proposed rule published in the 

Federal Register (88 FR 7375–7378) on 

February 3, 2023. Comments were 

accepted for 60 days until April 4, 2023. 

One comment was received which 

stated support for the exemption rule. 

I. Background 

In finalizing this rule, OSD is 

exempting portions of this system of 

records titled, CIG–16, ‘‘Inspector 

General Administrative Investigation 

Records,’’ from certain provisions of the 

Privacy Act of 1974. This system 

contains records of DoD Office of 

Inspector General mission activities 

such as: the identification, referral, and 

investigation of DoD Hotline 

complaints; administrative 

investigations of both military and 

civilian senior officials accused of 

misconduct; oversight and investigation 

of whistleblower reprisal cases against 

Service members, DoD contractor 

employees, and DoD civilian employees 

(appropriated and non-appropriated 

fund); and improper command referrals 

of Service member mental health 

evaluations. 

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). 

OSD is amending 32 CFR 310.28(c)(4) 

to change the system name and to 

exempt portions of this system of 

records from certain provisions of the 

Privacy Act because information in this 

system of records may also fall within 

the scope of the following Privacy Act 

exemptions: 5 U.S.C. 552a(j)(2) and 

(k)(1). 

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 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(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 


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65130 Federal Register / Vol. 88, No. 182 / Thursday, September 21, 2023 / Rules and Regulations 

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 (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 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 imposes substantial direct 

requirement costs on State and local 

governments, preempts State law, or 

otherwise has federalism implications. 

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 AMENDEMENT 

OF INDIVIDUAL RECORDS UNDER 

THE PRIVACY ACT OF 1974 

■ 1. The authority citation for 32 CFR 

part 310 continues to read as follows: 

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

■ 2. Section 310.28 is amended by 

revising paragraph (c)(4) to read as 

follows: 

§ 310.28 Office of the Inspector General 

(OIG) exemptions. 

* * * * * 

(c) * * * 

(4) System identifier and name. CIG– 

16, Inspector General Administrative 

Investigation Records (IGAIR). 

(i) Exemptions. This system of records 

is exempt from 5 U.S.C. 552a(c)(3) and 

(4); (d)(1), (2), (3), and (4); (e)(1); (e)(2); 

(e)(3); (e)(4)(G), (H), and (I); (e)(5); (e)(8); 

(f) and (g) of the Privacy Act pursuant 

to 5 U.S.C. 552a(j)(2). 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) and (H); and (f) of the Privacy 

Act to the extent the records are subject 

to exemption pursuant to 5 U.S.C. 

552a(k)(1), (k)(2), and (k)(5). This system 

of records is also exempt from 5 U.S.C. 

552a(e)(4)(I) to the extent the records are 

subject to exemption pursuant to 5 

U.S.C. 552a(k)(1), (k)(2), and (k)(5). 

(ii) Authority. 5 U.S.C. 552a(j)(2), 

(k)(1), (k)(2) and (k)(5). 

(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 (j)(2). Records in this 

system of records may contain 

investigatory material compiled for 

criminal law enforcement purposes, 

including information identifying 

criminal offenders and alleged 

offenders, information compiled for the 

purpose of criminal investigation, or 

reports compiled during criminal law 

enforcement proceedings. Application 

of exemption (j)(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 or 

prosecutorial efforts by permitting the 

record subject and other persons to 

whom he might disclose the records to 

avoid criminal penalties or disciplinary 

measures; 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. 

(2) 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. 

(3) 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 or 

prosecutorial 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 which may impede those 

actions or investigations; 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. 

(4) Exemption (k)(5). Records in this 

system of records may contain 

information concerning investigatory 

material compiled solely for 

determining suitability, eligibility, and 

qualifications for Federal civilian 

employment, military service, Federal 

contracts, or access to classified 

information. 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)(5) 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 come forward 

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. 

Amendment of such records could also 

impose a highly impracticable 

administrative burden by requiring 


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Federal Register / Vol. 88, No. 182 / Thursday, September 21, 2023 / Rules and Regulations 65131 

investigations to be continuously 

reinvestigated. 

(B) Subsection (c)(4), (d)(3) and (4). 

These subsections are inapplicable to 

the extent that an exemption is being 

claimed from subsections (d)(1) and (2). 

Accordingly, exemption from 

subsection (c)(4) is claimed pursuant to 

(j)(2) and exemptions from subsections 

(d)(3) and (d)(4) are claimed pursuant to 

(j)(2), (k)(1), (k)(2), and (k)(5). 

(C) Subsection (e)(1). In the collection 

of information for investigatory and 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 disciplinary and prosecutorial 

determinations. Additionally, records 

within this system may be properly 

classified pursuant to Executive order. 

Accordingly, application of exemptions 

(j)(2), (k)(1), (k)(2), and (k)(5) may be 

necessary. 

(D) Subsection (e)(2). To collect 

information from the subject individual 

could serve notice that he or she is the 

subject of a criminal investigation and 

thereby present a serious impediment to 

such investigations. Collection of 

information only from the individual 

accused of criminal activity or 

misconduct could also subvert 

discovery of relevant evidence and 

subvert the course of justice. 

Accordingly, application of exemption 

(j)(2) may be necessary. 

(E) Subsection (e)(3). To inform 

individuals as required by this 

subsection could reveal the existence of 

a criminal investigation and 

compromise investigative efforts. 

Accordingly, application of exemption 

(j)(2) may be necessary. 

(F) Subsection (e)(4)(G) and (H). 

These subsections are inapplicable to 

the extent exemption is claimed from 

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

application of exemptions (j)(2), (k)(1), 

(k)(2), and (k)(5) may be necessary. 

(G) 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 

witnesses and informants. Accordingly, 

application of exemptions (j)(2), (k)(1), 

(k2), and (k)(5) may be necessary. 

(H) Subsection (e)(5). It is often 

impossible to determine in advance if 

investigatory records contained in this 

system are accurate, relevant, timely 

and complete, but, in the interests of 

effective law enforcement, it is 

necessary to retain this information to 

maintain an accurate record of the 

investigatory activity to preserve the 

integrity of the investigation and satisfy 

various Constitutional and evidentiary 

requirements, such as mandatory 

disclosure of potentially exculpatory 

information in the investigative file to a 

defendant. It is also necessary to retain 

this information to aid in establishing 

patterns of activity and provide 

investigative leads. With the passage of 

time, seemingly irrelevant or untimely 

information may acquire new 

significance as further investigation 

brings new details to light and the 

accuracy of such information can only 

be determined through judicial 

processes. Accordingly, application of 

exemption (j)(2) may be necessary. 

(I) Subsection (e)(8). To serve notice 

of records being made available under 

compulsory legal process could give 

persons sufficient warning to evade 

investigative efforts. Accordingly, 

application of exemption (j)(2) may be 

necessary. 

(J) Subsection (f). The agency’s rules 

are inapplicable to those portions of the 

system that are exempt. Accordingly, 

application of exemptions (j)(2), (k)(1), 

(k)(2) and (k)(5) may be necessary. 

(K) Subsection (g). This subsection is 

inapplicable to the extent that the 

system is exempt from other specific 

subsections of the Privacy Act. 

Accordingly, an exemption from 

subsection (g) is claimed pursuant to 

(j)(2). 

(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: September 15, 2023. 

Aaron T. Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2023–20434 Filed 9–20–23; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket No. USCG–2023–0666] 

Special Local Regulations; Marine 

Events Within the Captain of the Port 

of Charleston 

AGENCY: Coast Guard, DHS. 

ACTION: Notification of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

a special local regulation for the Swim 

around Charleston on September 24, 

2023, to provide for the safety of life on 

navigable waterways during this event. 

Our regulation for marine events within 

the Captain of the Port Charleston 

identifies the regulated area for this 

event in Charleston, SC. During the 

enforcement periods, the operator of any 

vessel in the regulated area must 

comply with directions from the 

Captain of the Port Charleston or a 

designated representative. 

DATES: The regulations in 33 CFR 

100.704 will be enforced for the location 

identified in Item 9 of Table 1 to 

§ 100.704, from 9 a.m. through 4 p.m. on 

September 24, 2023. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

notification of enforcement, call or 

email Petty Officer Adam Krukowski, 

Sector Charleston, Waterways 

Management Division, U.S. Coast 

Guard; 843–740–3186, email 

Adam.B.Krukowski@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce special local 

regulations in 33 CFR 100.704, Table 1 

to § 100.704, Item 9, for the Swim 

Around Charleston regulated area from 

9 a.m. to 4 p.m. on September 24, 2023. 

This action is being taken to provide for 

the safety of life on navigable waterways 

during this event. Our regulation for 

marine events within the Captain of the 

Port Charleston § 100.704, specifies the 

location of the Swim Around Charleston 

as a moving safety zone including all 

waters 50 yards in front of the lead 

safety vessel preceding the first race 

participants, 50 yards behind the safety 

vessel trailing the last race participants, 


ddrumheller on DSK120RN23PROD with RULES1