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[Federal Register Volume 89, Number 246 (Monday, December 23, 2024)]
[Proposed Rules]
[Pages 104468-104471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29639]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2024-OS-0135]
RIN 0790-AL55

Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense (OSD), 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 new Department-wide system of records pursuant 
to the Privacy Act of 1974 for the DoD-0023, ``Military Corrections and 
Parole Board 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 
because of national security and law enforcement requirements.

DATES: Send comments on or before February 21, 2025.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods.

[[Page 104469]]

    * Federal eRulemaking 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 Regulation Identifier Number (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, Defense Privacy and 
Civil Liberties Directorate, Office of the Assistant to the Secretary 
of Defense for Privacy, Civil Liberties, and Transparency, 4800 Mark 
Center Drive, Mailbox #24, Suite 05F16, Alexandria, VA 22350-1700; 
[email protected]; (703) 571-0070.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, the DoD is establishing 
a new system of records titled, ``Military Corrections and Parole Board 
Records,'' DoD-0023. This system of records describes DoD's collection, 
use, and maintenance of records covering military Service members 
confined for violation of the Uniform Code of Military Justice. These 
records include information on prisoner's confinement, health 
assessment, disciplinary actions while in confinement, observations by 
confinement staff and United States probation officers, and confinement 
utilization assessments such as basis for correctional treatment and 
education programs. The records also include information used for 
clemency and parole decisions conducted by the military Departments' 
Clemency and Parole Boards.

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 undertake 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-0023, ``Military Corrections and Parole 
Board Records'' system of records. The DoD proposes this exemption 
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. The DoD is proposing to claim an exemption from the 
access and amendment requirements and certain disclosure accounting 
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 5200.01 and DoD 
Manual 5200.01, Volumes 1 and 3.
    The DoD also proposes to exempt this system of records because 
these records support the conduct of criminal law enforcement 
activities, and certain requirements of the Privacy Act may interfere 
with the effective execution of these activities, and undermine, good 
order and discipline. The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), 
authorizes agencies with a principal law enforcement function 
pertaining to the enforcement of criminal laws (including activities of 
prosecutors, courts, etc.) to claim an exemption for systems of records 
that contain information identifying criminal offenders and alleged 
offenders, information compiled for the purpose of criminal 
investigation, or reports compiled during criminal law enforcement 
proceedings. Additionally, the Privacy Act, pursuant to 5 U.S.C. 
552a(k)(2), authorizes agencies to compile investigatory material for 
law enforcement purposes, other than materials within the scope of 5 
U.S.C. 552a(j)(2). The DoD is proposing to claim exemptions from 
several provisions of the Privacy Act, including various access, 
amendment, disclosure accounting, and notice requirements, pursuant to 
5 U.S.C. 552a(j)(2) and 552a(k)(2), to prevent the harms articulated in 
this rulemaking from occurring.
    If implemented, this rulemaking will deny an individual access 
under the Privacy Act to only those portions of records for which one 
or more claimed exemptions apply. In addition, 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-0023, ``Military 
Corrections and Parole Board Records,'' is published elsewhere 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 rulemaking is not a significant regulatory action.

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 rulemaking 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. Chapter 6)

    The Assistant to the Secretary of Defense for Privacy, Civil 
Liberties, and Transparency has certified that this rulemaking 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

[[Page 104470]]

rulemaking 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. Chapter 35)

    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 rulemaking 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 proposed rule (and subsequent 
final 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 rulemaking 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 rulemaking will not have a substantial effect on Indian 
Tribal governments.

List of Subjects in 32 CFR Part 310

    Privacy.

    Accordingly, the Department of Defense proposes to amend 32 CFR 
part 310 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 part 310 continues to read as follows:

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

0
2. Amend Sec.  310.13 by:
0
a. Adding reserved paragraphs (e)(15) and (16).
0
b. Adding paragraph (e)(17).
    The additions read as follows:

Sec.  310.13   Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (15)-(16) [Reserved]
    (17) System identifier and name. DoD-0023, ``Military Correction 
and Parole Board Records''.
    (i) Exemptions. When applying exemption (j)(2), this system of 
records is exempt from 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), 
and (4); (e)(1), (2), (3), (4)(G), (4)(H), and 4(I), (5), and (8); (f); 
and (g). When applying exemption (k)(1) and (k)(2), this system of 
records is exempt from 5 U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); 
(e)(1), (2), (3), (4)(G), (4)(H), (4)(I), and (5), and (f).
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsection (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 to include 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 as 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, prosecutorial, or 
disciplinary 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 concerning DoD personnel or disciplinary activities that is 
properly classified pursuant to executive order. Application of 
exemption (k)(1) for such records 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) for such records 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, disciplinary, 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.
    (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).
    (C) Subsection (e)(1). 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 disciplinary and prosecutorial 
determinations. Additionally, records within this system may be 
properly classified pursuant to executive order. Accordingly, 
application of exemptions

[[Page 104471]]

(j)(2), (k)(1), and (k)(2) 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 
subsection (e)(3) could reveal the existence of a criminal 
investigation and compromise investigative efforts. Accordingly, 
application of exemption (j)(2) may be necessary.
    (F) Subsections (e)(4)(G) and (H). These subsections are 
inapplicable to the extent an exemption is claimed from subsections 
(d)(1) and (2).
    (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 privacy and physical safety of witnesses 
and informants.
    (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 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 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), and (k)(2) 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, application of exemption (j)(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 11, 2024.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2024-29639 Filed 12-20-24; 8:45 am]
BILLING CODE 6001-FR-P
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