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Proposed Rules
Federal Register Vol. 86, No. 243
Wednesday, December 22, 2021

This section of the FEDERAL REGISTER
contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules.

DEPARTMENT OF DEFENSE
Office of the Secretary 32 CFR Part 310
Docket ID: DoD2021OS0048
RIN 0790AL13

Privacy Act of 1974; Implementation Office of the Secretary of Defense OSD, Department of Defense DoD.
ACTION: Proposed rule.
AGENCY:

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 DoD0008, Freedom of Information Act and Privacy Act 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 requirements; to avoid interference during the conduct of criminal, civil, or administrative actions or investigations; to prevent the compromise of protective services processes; to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations;
and to prevent the undermining of testing and evaluation materials.
DATES: Send comments on or before February 22, 2022.
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 COVID19 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
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SUMMARY:

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Information Number 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.
Tracy Rogers, 703 5710070, OSD.DPCLTD@mail.mil.
SUPPLEMENTARY INFORMATION:
I. Background In accordance with the Privacy Act of 1974, the DoD is establishing a new DoD-wide system of records titled Freedom of Information Act and Privacy Act Records, DoD0008. This system of records notice describes access requests and administrative appeals under the Freedom of Information Act FOIA, and access and amendment requests and administrative appeals under the Privacy Act. The system consists of both electronic and paper records and will be used by DoD
components and offices to maintain records about individuals who submit FOIA access requests, Privacy Act access and amendment requests, administrative appeals to the Department under either the FOIA or Privacy Act, and individual requests referred from other agencies. These records may include information regarding the requesters and their attorneys or representatives, the original request for access, amendment, and administrative appeal, and other supporting documentation to include related memoranda, correspondence, notes, statements of disagreement, and, in some instances, copies of requested records and records under administrative appeal.
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. 553b1
3, c, and e. This proposed rule explains why an exemption is being
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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 DoD0008, Freedom of Information Act and Privacy Act Records system of records. In this proposed rulemaking, the Department proposes to exempt portions of this system of records from certain provisions of the Privacy Act because records and information in this system of records may fall within the scope of the Privacy Act exemptions. As stated in the DoD0008 system of records notice, this system of records generally will not be deemed to cover underlying records that are responsive to an access or amendment request; rather, the system covers the access, amendment, or appeal requests themselves, correspondence created as a result of such requests, and certain other categories of records identified in the notice. In certain limited instances, however, entire records, portions thereof, or information from such underlying records may be recompiled to become part of this system. Certain records may also be recompiled from other exempt systems of records as a result of a request for access to such records under the Privacy Act or the Freedom of Information Act, or a request for amendment of a record under the Privacy Act. Recompiled records and information may fall within the scope of the Privacy Act exemptions claimed for those systems of records, specifically the exemptions set forth in 5 U.S.C. 552aj2, k1, k2, k3, k5, k6, and k7.
The DoD proposes this exemption rule for several reasons. First, some of the records in this system of records may contain information recompiled from other systems of records maintained by a DoD component or other agency which performs as its principal function activities pertaining to the enforcement of criminal laws and the records contain investigatory material compiled for criminal law enforcement purposes. The Privacy Act, pursuant to 5 U.S.C. 552aj2, authorizes agencies to claim an exemption for systems of records that contain this type of information. The DoD therefore is proposing to claim an exemption from several provisions of the Privacy Act, including various
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