[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Rules and Regulations]
[Pages 38560-38562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15600]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2021-OS-0054]
RIN 0790-AL14


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense, Department of Defense 
(DoD).

ACTION: Direct final rule with request for comments.

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SUMMARY: The Department of Defense (DoD or Department) is giving 
concurrent notice of a new Department-wide system of records DoD 0007, 
``Defense Reasonable Accommodation and Assistive Technology Records,'' 
and this rulemaking, which exempts portions of this system of records 
from certain provisions of the Privacy Act of 1974, as amended, because 
of national security requirements. This rule is being published as a 
direct final rule as the Department does not expect to receive any 
adverse comments. If such comments are received, this direct final rule 
will be withdrawn and a proposed rule for comments will be published.

DATES: The rule is effective on September 30, 2021 unless comments are 
received that would result in a contrary determination. Comments will 
be accepted on or before September 20, 2021. If adverse comment is 
received, the Department will publish a timely withdrawal of the rule 
in the Federal Register.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods.
    * Federal eRulemaking 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 or Regulatory Information 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. Lyn Kirby, <a href="/cdn-cgi/l/email-protection#aae5f9ee84eefae9e6feeeeac7cbc3c684c7c3c6"><span class="__cf_email__" data-cfemail="fab5a9bed4beaab9b6aebeba979b9396d4979396">[email protected]</span></a>, 
(703) 571-0070.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, DoD is establishing a 
new Department-wide system of records titled DoD 0007, ``Defense 
Reasonable Accommodation and Assistive Technology Records.'' This 
system of records covers both electronic and paper records and will be 
used by DoD components and offices to maintain records about 
accommodations based on disability requested by or provided to 
employees and applicants for employment and participants in DoD 
programs and activities. The Rehabilitation Act of 1973, as amended, 
generally requires Federal agencies to provide accommodations which 
enable individuals with disabilities to perform DoD employment and 
participate in DoD programs and activities, unless such accommodation 
would impose an undue burden. In addition, DoD's Computer/Electronic 
Accommodations Program (CAP) provides assistive (computer/electronic) 
technology solutions to individuals--including injured, wounded, or ill 
Service members--with hearing, vision, dexterity, cognitive, and/or 
communications impairments in the form of an accessible work 
environment. This also includes the request and delivery of personal 
assistance services for covered individuals. Such disability 
accommodations include: (1) Making existing facilities readily 
accessible to and usable by individuals with disabilities; (2) job 
restructuring, modification of work schedules or place of work, 
extended leave, telecommuting, or reassignment to a vacant position; 
and/or (3) acquisition or modification of equipment or devices, 
including computer software and hardware, appropriate adjustments or 
modifications of examinations, training materials or policies, the 
provision of qualified readers and/or interpreters, personal 
assistants, service animals, and other similar accommodations.

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 
the provisions providing 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 to provide 
public notice and an opportunity to comment on the proposed exemption. 
The Office of the Secretary is amending 32 CFR part 310 to add a new 
Privacy Act exemption rule for this system of records. The DoD is 
adding an exemption for this system of records because some of its 
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. The DoD is claiming 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.

III. Direct Final Rulemaking

    This rule is being published as a direct final rule as the 
Department does not expect to receive any significant adverse comments. 
If such comments are received, this direct final rule will be withdrawn 
and a proposed rule for comments will be published. If no such comments 
are received, this direct final rule will become effective ten days 
after the comment period expires.
    For purposes of this rule, a significant adverse comment is one 
that explains (1) why the rule is inappropriate, including challenges 
to the rule's underlying premise or approach; or (2) why the direct 
final rule will be ineffective or unacceptable without a change. In 
determining whether a significant adverse comment necessitates 
withdrawal of this direct final rule, the Department will consider 
whether the comment raises an issue serious enough to warrant a 
substantive response had it been submitted in a

[[Page 38561]]

standard notice-and-comment process. A comment recommending an addition 
to the rule will not be considered significant and adverse unless the 
comment explains how this direct final rule would be ineffective 
without the addition.
    An agency typically uses direct final rulemaking when it 
anticipates the rule will be non-controversial. The Department has 
determined that this rule is suitable for direct final rulemaking. The 
rule exempts this Privacy Act system of records on the basis that it 
may contain classified information. This exemption relieves the 
Department from the requirements of several provisions of the Privacy 
Act, including various access, amendment, disclosure of accounting, and 
certain recordkeeping and notice requirements. The purpose of the rule 
is to prevent disclosure of any information properly classified 
pursuant to executive order and protect against harm to the national 
security. This exemption should not be controversial and is consistent 
with federal law and policy regarding the appropriate handling and 
protection of national security information. Accordingly, pursuant to 5 
U.S.C. 553(b), the Department has for good cause determined that the 
notice and comment requirements are unnecessary.
    This direct final rule adds to the DoD's Privacy Act exemptions for 
Department-wide systems of records found in 32 CFR 310.13. 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 0007 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 also emphasizes the importance of quantifying both costs 
and benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. It has been determined that Privacy Act rules for the DoD 
are not significant rules under these Executive orders.

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

    It has been determined that the Privacy Act rules for the DoD does 
not involve Federal mandates 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 rules will not 
significantly or uniquely affect small governments.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that Privacy Act rules for the DoD impose no 
additional reporting or recordkeeping requirements on the public under 
the Paperwork Reduction Act of 1995.

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

    It has been certified that this Privacy Act rule for the DoD does 
not have significant economic impacts on a substantial number of small 
entities because they are concerned only with the administration of 
Privacy Act systems of records within the DoD.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), it 
has been determined that this direct final rule is not a major rule, as 
defined by 5 U.S.C. 804(2).

Executive Order 13132, ``Federalism''

    It has been determined that the Privacy Act rules for the DoD do 
not have federalism implications. The rules do 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 310

    Privacy.

    Accordingly, 32 CFR part 310 is amended as follows:

PART 310--[AMENDED]

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 adding reserve paragraph (e)(3), (4), and (5) 
and paragraph (e)(6) to read as follows:


Sec.  310.13   Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (6) System identifier and name. DoD 0007, ``Defense Reasonable 
Accommodation and Assistive Technology Records.''
    (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)(4)(G), (H), and (I); 
and (f).
    (ii) Authority. 5 U.S.C. 552a(k)(1).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections pursuant to exemption (k)(1) is justified for 
the following reasons:
    (A) Subsections (c)(3), (c)(4), (d)(1), and (d)(2). Records in this 
system of records may contain information concerning individuals 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. Accordingly, application of exemption (k)(1) may be 
necessary.
    (B) Subsections (d)(3) and (4). Subsections (d)(3) and (4) are 
inapplicable to the extent an exemption is claimed from (d)(2).
    (C) Subsections (e)(4)(G) and (H) and Subsection (f). Subsections 
(e)(4)(G) and (H) and subsection (f) are inapplicable to the extent 
exemption is claimed from the access and amendment provisions of 
subsection (d). Because portions of this system are exempt from the 
individual access and amendment provisions of subsection (d) for the 
reasons noted in paragraphs (e)(6)(iii)(A) and (B) of this section, DoD 
is not required to establish requirements, rules, or procedures with 
respect to such access or amendment provisions. Providing notice to 
individuals with respect to the existence of records pertaining to them 
in the system of records or otherwise setting up procedures pursuant to 
which individuals may access, view, and seek to amend records 
pertaining to themselves in the system would potentially undermine 
national security and the confidentiality of classified information. 
Accordingly, application of exemption (k)(1) may be necessary.
    (D) Subsection (e)(4)(I). To the extent that subsection (e)(4)(I) 
is construed to require more detailed disclosure than the broad 
information currently published in the system notice concerning 
categories of sources of records in the system, an exemption from this 
provision is necessary to protect national security and the 
confidentiality of sources and methods, and other classified 
information.
    (iv) Exempt records from other systems. In the course of carrying 
out

[[Page 38562]]

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: July 19, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-15600 Filed 7-21-21; 8:45 am]
BILLING CODE 5001-06-P


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