90 FR 142 pgs. 35434-35436 - Privacy Act of 1974; Implementation
Type: RULEVolume: 90Number: 142Pages: 35434 - 35436
Pages: 35434, 35435, 35436Docket number: [Docket ID: DoD-2024-OS-0049]
FR document: [FR Doc. 2025-14134 Filed 7-25-25; 8:45 am]
Agency: Defense Department
Official PDF Version: PDF Version
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD-2024-OS-0049]
RIN 0790-AL30
Privacy Act of 1974; Implementation
AGENCY:
Office of the Secretary of Defense (OSD), Department of Defense (DoD).
ACTION:
Final rule.
SUMMARY:
[top] The Department of Defense (Department or DoD) is issuing a final rule to amend its regulations to exempt portions of DoD-0020, Military Human
DATES:
This rule is effective on August 27, 2025.
FOR FURTHER INFORMATION CONTACT:
Ms. Rahwa Keleta, Privacy and Civil Liberties Directorate, 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 05F16, Alexandria, VA 22350-1700; osd.mc-alex.oatsd-pclt.mbx.pcld-sorn@mail.mil; (703) 571-0070.
SUPPLEMENTARY INFORMATION:
Discussion of Comments and Changes
This proposed rule published in the Federal Register (89 FR 42408) on May 15, 2024. Comments were accepted for 60 days until July 15, 2024. Only two comments were received, neither of which necessitated any changes to the rule. One commenter appeared to generally agree with DoD's proposed rule. The other commenter acknowledged the necessity for the exemptions being claimed, but also offered some suggestions seemingly designed to enhance transparency, accountability, record accuracy, and safeguarding. DoD agrees with these general goals and responds that it follows the requirements of the Privacy Act and DoD policy for maintaining a system of records, both of which serve to effectuate similar objectives. This final rule adds to the DoD's Privacy Act exemptions for Department-wide systems of records found in 32 CFR 310.13.
I. Background
In finalizing this rule, DoD is seeking to exempt portions of this system of records titled, DoD-0020, Military Human Resource Records, from certain provisions of the Privacy Act. This system of records describes DoD's collection, use, and maintenance of records about members of the armed forces, including active duty, reserve, and guard personnel. Records support Department requirements and individual Service members' careers, through the collection and management of personnel and employment data. This information includes individual's pay and compensation, education, assignment history, rank and promotion determinations, separation and retirement actions, and career milestones.
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). The DoD is amending 32 CFR part 310 to add a new Privacy Act exemption rule for the DoD-0020, Military Human Resource Records system of records. The DoD is adding exemptions for this system of records pursuant to 5 U.S.C. 552a(k)(1) and (k)(7) because some of its records may contain classified national security information or evaluation material, including from other systems of records, that is used to determine potential for promotion in the armed services. 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). The DoD is claiming an exemption from several provisions of the Privacy Act, including various access, amendment, disclosure of accounting, and certain recordkeeping and notice requirements, to avoid, among other harms, frustrating the underlying purposes for which the information was gathered.
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.
Executive Order 14192, "Unleashing Prosperity Through Deregulation"
This rule is not an Executive Order 14192 regulatory action because this rule is not significant under Executive Order 12866.
Congressional Review Act (5 U.S.C. 801 et seq. )
Pursuant to the Congressional Review Act, this rule has not been designated a major rule, as defined by 5 U.S.C. 804(2). This rule does not have an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
Section 202, Public Law 104-4, "Unfunded Mandates Reform Act"
Section 202(a) of the Unfunded Mandates Reform Act of 1995 (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. Chapter 6)
The Acting 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 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. Chapter 35)
[top] The Paperwork Reduction Act (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
Executive Order 13132, "Federalism"
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a 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 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 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 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 AMENDMENT 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. Amend §?310.13 by adding paragraph (e)(15) to read as follows:
§?310.13 Exemptions for DoD-wide systems.
(e) * * *
(15) System identifier and name. DoD-0020, "Military Human Resource Records."
(i) Exemptions. This system of records is exempt from 5 U.S.C. 552a(c)(3); (d)(1)-(4); (e)(1); (e)(4)(G), (H), and (I); and (f).
(ii) Authority. 5 U.S.C. 552a(k)(1) and (k)(7).
(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 (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.
(2) Exemption (k)(7). Records in this system of records may contain evaluation material, including from other systems of records, used to determine potential for promotion in the Armed Forces of the United States. 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)(7) 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 provided information 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.
(B) Subsection (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 evaluation material used to determine potential for promotion in the Military Services, which may be incorporated into and/or maintained in military personnel records, it is not always possible to conclusively determine the relevance and necessity of particular information in the early stages of the evaluation process. 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 decision-making can be assessed. Collection of such information may permit more informed decision-making by the Department when making required disciplinary or personnel determinations. Additionally, the information collected may be properly classified pursuant to executive order. Accordingly, application of exemptions (k)(1) or (k)(7) may be necessary.
(D) Subsection (e)(4)(G) and (H). These subsections are inapplicable to the extent exemption is claimed from subsections (d)(1) and (2).
(E) Subsection (e)(4)(I). To the extent that this provision 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 the confidentiality of sources of information, the privacy and physical safety of witnesses and informants, and testing or examination material used solely to determine individual qualifications for appointment of promotion in the Federal service. Additionally, records in this system may be properly classified pursuant to executive order. Accordingly, application of exemptions (k)(1) and (k)(7) may be necessary.
(F) Subsection (f). To the extent that portions of the system are exempt from the provisions of the Privacy Act concerning individual access and amendment of records, DoD is not required to establish rules concerning procedures and requirements relating to such provisions. Accordingly, application of exemptions (k)(1) and (k)(7) may be necessary.
Dated: July 23, 2025.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2025-14134 Filed 7-25-25; 8:45 am]
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