[Federal Register Volume 77, Number 52 (Friday, March 16, 2012)]
[Rules and Regulations]
[Pages 15585-15587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6169]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DoD-2010-OS-0183]

32 CFR Part 311


Privacy Act; Implementation

AGENCY: Office of the Secretary, DoD.

ACTION: Final rule.

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SUMMARY: The Office of the Secretary of Defense is exempting those 
records contained in DMDC 15 DoD, entitled ``Armed Services Military 
Accession Testing'' when the record includes the specific answers 
submitted and the answer key. Releasing this information to the 
individual will compromise the

[[Page 15586]]

objectivity or fairness of the test if the correct or incorrect answers 
are released.

DATES: This rule is effective March 16, 2012.

FOR FURTHER INFORMATION CONTACT: Mrs. Cindy Allard at (703) 588-6830.

SUPPLEMENTARY INFORMATION: The Proposed Rule was published on January 
3, 2011, in the Federal Register (76 FR 56-57). During the comment 
period, two public comments were received.
    The first commenter asserted that the proposed Privacy Act 
exemption rule ``could possibly be viewed as a violation of [the] 
constitutional rights * * * [of] U.S. citizen[s],'' making reference to 
the Third, Fifth, Sixth, and Fourteenth Amendments of the Constitution. 
Also the first commenter commented that the provision ``of the answers 
and/or answer keys should be at the discretion of the test taker, i.e., 
U.S. citizens.''
    The Privacy Act exemption rule addresses an individual's answers to 
the Armed Services Vocational Aptitude Battery (ASVAB) and the 
appropriate answer key, allowing the Department of Defense to exempt an 
individual's ASVAB answers and the answer key from the access 
provisions of the Privacy Act of 1974.
    The exemption rule is intended to ensure that individuals will not 
compromise the purpose of the ASVAB--to ascertain the skills and 
abilities of individuals joining the military or seeking to join the 
military. If individuals were allowed to have the specific responses to 
the questions as well as the correct answers, the Department of Defense 
would be unable to ensure that individuals were placed in jobs for 
which they had an aptitude, or more importantly, placed in jobs for 
which they had no aptitude. If individuals were allowed to have their 
individual responses as well as the correct answers, the integrity and 
scoring of the battery would be compromised rendering the testing 
worthless.
    Individuals taking the test are provided a copy of their scores 
along with an explanation of what the given scores indicate.
    The exemption rule is consistent with the Privacy Act, its 
underlying purposes, and the U.S. Constitution. Further, the rules 
published at 32 CFR part 311, The OSD Privacy Program, provide 
individuals an opportunity to appeal the denial of access to their 
records, which could include the consideration of alleged 
constitutional rights violations arising out of the denial of access to 
requested records.
    The second commenter did not address the proposed exemption rule 
but addressed the first commenter's comments.

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    It has been determined that Privacy Act rules for the Department of 
Defense are not significant rules. The rules do not (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy; a sector of the economy; productivity; 
competition; jobs; the environment; public health or safety; or State, 
local, or tribal governments or communities; (2) Create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another Agency; (3) Materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) Raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in these Executive orders.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    It has been determined that this Privacy Act rule for the 
Department of Defense does not have significant economic impact on a 
substantial number of small entities because it is concerned only with 
the administration of Privacy Act systems of records within the 
Department of Defense.

Public Law 95-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that this Privacy Act rule for the 
Department of Defense imposes no information requirements beyond the 
Department of Defense and that the information collected within the 
Department of Defense is necessary and consistent with 5 U.S.C. 552a, 
known as the Privacy Act of 1974.

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been determined that this Privacy Act rulemaking for the 
Department of Defense does not involve a Federal mandate that may 
result in the expenditure by State, local and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more and 
that such rulemaking will not significantly or uniquely affect small 
governments.

Executive Order 13132, ``Federalism''

    It has been determined that the Privacy Act rules for the 
Department of Defense do not have federalism implications. The rule 
does not have substantial direct effects on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.

List of Subjects in 32 CFR Part 311

    Privacy.

    Accordingly, 32 CFR part 311 is amended to read as follows:

PART 311--OFFICE OF THE SECRETARY OF DEFENSE AND JOINT STAFF 
PRIVACY PROGRAM

0
1. The authority citation for 32 CFR part 311 continues to read as 
follows:

    Authority:  Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 522a).


0
2. Section 311.8 is amended by adding paragraph (c)(16) to read as 
follows:


Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) * * *
    (16) System identifier and name: DMDC 15 DoD, Armed Services 
Military Accession Testing.
    (i) Exemption: Testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
Federal service or military service may be exempt pursuant to 5 U.S.C. 
552a(k)(6), if the disclosure would compromise the objectivity or 
fairness of the test or examination process. Therefore, portions of the 
system of records may be exempt pursuant to 5 U.S.C. 552a(d).
    (ii) Authority: 5 U.S.C. 552a(k)(6).
    (iii) Reasons: (A) An exemption is required for those portions of 
the Skill Qualification Test system pertaining to individual item 
responses and scoring keys to preclude compromise of the test and to 
ensure fairness and objectivity of the evaluation system.
    (B) From subsection (d)(1) when access to those portions of the 
Skill Qualification Test records would reveal the individual item 
responses and scoring keys. Disclosure of the individual item responses 
and scoring keys will compromise the objectivity and fairness of the 
test as well as the validity of future tests resulting in the 
Department being unable to use the testing battery as an individual 
assessment tool.
* * * * *


[[Page 15587]]


    Dated: February 28, 2012.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2012-6169 Filed 3-15-12; 8:45 am]
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