[Federal Register Volume 78, Number 179 (Monday, September 16, 2013)]
[Proposed Rules]
[Pages 56852-56855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22370]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 005-2013]
Exemption of Records Systems Under the Privacy Act
AGENCY: Executive Office for Organized Crime Drug Enforcement Task
Forces (OCDETF), Department of Justice.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice (the Department or DOJ) proposes to
amend its Privacy Act regulations for two systems of records entitled
the ``Drug Enforcement Task Force Evaluation and Reporting System,
JUSTICE/DAG-003,'' last published, March 10, 1992 in the Federal
Register, and the ``Organized Crime Drug Enforcement Task Force Fusion
Center and International Organized Crime Intelligence and Operations
Center System, JUSTICE/CRM-028,'' last published, June 3, 2009 in the
Federal Register. These Privacy Act regulations are being amended to
reflect a recent reorganization of the Department establishing the
Executive Office for OCDETF as a separate DOJ component, and
transferring responsibility for these systems from the Office of the
Deputy Attorney General (ODAG) and the Criminal Division to this
component. In light of this departmental reorganization, JUSTICE/DAG-
003 is being renumbered to JUSTICE/OCDETF-001 and will be renamed as
the ``Organized Crime Drug Enforcement Task Forces Management
Information System (OCDETF MIS).'' JUSTICE/CRM-028 is being renumbered
to JUSTICE/OCDETF-002 but will retain its system name. When under the
responsibility of ODAG and the Criminal Division, these systems were
exempted from certain provisions of the Privacy Act of 1974 by
exemptions placed in the Code of Federal Regulations (CFR) sections
containing
[[Page 56853]]
exemptions for ODAG's and the Criminal Division's Privacy Act systems.
These proposed amendments will remove references to these systems from
the CFR sections for ODAG and Criminal Division exemptions and add a
new section for OCDETF exemptions. Public comment is invited.
DATES: Comments must be received by October 16, 2013.
ADDRESSES: Address all comments to Privacy Analyst, Office of Privacy
and Civil Liberties, National Place Building, 1331 Pennsylvania Avenue
NW., Suite 1000, Washington, DC 20530, or by facsimile to 202-307-0693.
To ensure proper handling, please reference the CPCLO Order Number on
your correspondence. You may review an electronic version of the
proposed rule at http://www.regulations.gov, and you may also comment
by using that Web site's comment form for this regulation. Please
include the CPCLO Order Number in the subject box.
Please note that the Department is requesting that electronic
comments be submitted before midnight Eastern Time on the day the
comment period closes because this is when http://www.regulations.gov
terminates the public's ability to submit comments. Commenters in time
zones other than Eastern Time may want to consider this so that their
electronic comments are received. All comments sent via regular or
express mail will be considered timely if postmarked on or before the
day the comment period closes.
Posting of Public Comments: Please note that all comments received
are considered part of the public record and made available for public
inspection online at http://www.regulations.gov and in the Department's
public docket. Such information includes personally identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personally identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online or made available in the public docket, you must
include the phrase ``PERSONALLY IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You must also place all the personally
identifying information you do not want posted online or made available
in the public docket in the first paragraph of your comment and
identify what information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information to be
redacted within the comment. If a comment has so much confidential
business information that it cannot be effectively redacted, all or
part of that comment may not be posted online or made available in the
public docket.
Personally identifying information and confidential business
information identified and located as set forth above will be redacted
and the comment, in redacted form, will be posted online and placed in
the Department's public docket file. Please note that the Freedom of
Information Act applies to all comments received. If you wish to
inspect the agency's public docket file in person by appointment,
please see the FOR FURTHER INFORMATION CONTACT paragraph.
FOR FURTHER INFORMATION CONTACT: Jill Aronica, Chief Information
Systems Section, Executive Office for OCDETF, U.S. Department of
Justice, 1331 Pennsylvania Avenue NW., Suite 1060, Washington, DC
20530, phone 202-514-1860.
SUPPLEMENTARY INFORMATION: In the Notices section of today's Federal
Register, the Department has published two modified systems of records
notices for the ``Organized Crime Drug Enforcement Task Force Fusion
Center and International Organized Crime Intelligence and Operations
Center System'' (last published at 74 FR 26733 (June 3, 2009)) and the
``Organized Crime Drug Enforcement Task Forces Management Information
System'' (last published at 57 FR 8473 (March 10, 1992)). Previously,
when these systems were under the purview of ODAG and of the Criminal
Division, these systems of records were exempted from certain
provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k).
These exemptions were promulgated in the sections of the CFR for
exemptions of ODAG systems (28 CFR 16.71) and of Criminal Division
systems (28 CFR 16.91). The Department is now proposing to establish a
new section for exemptions of OCDETF systems (28 CFR 16.135); to delete
references to the exemptions for the Drug Enforcement Task Force
Evaluation and Reporting System, JUSTICE/DAG-003 in 28 CFR 16.71; and
to delete references to the Organized Crime Drug Enforcement Task Force
Fusion Center and International Organized Crime Intelligence and
Operations Center System, JUSTICE/CRM-028 in 28 CFR 16.91. The
Department intends that the exemptions previously established under 28
CFR 16.71 and 28 CFR 16.91 will continue to apply to these systems and
all their records until the effective date of 28 CFR 16.135.
Regulatory Flexibility Act
This proposed rule relates to individuals, as opposed to small
business entities. Nevertheless, pursuant to the requirements of the
Regulatory Flexibility Act, 5 U.S.C. 601-612, the proposed rule will
not have a significant economic impact on a substantial number of small
entities.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), 5 U.S.C. 801 et seq., requires the Executive Office for
OCDETF to comply with small entity requests for information and advice
about compliance with statutes and regulations within the Executive
Office for OCDETF's jurisdiction. Any small entity that has a question
regarding this document may contact the person listed in FOR FURTHER
INFORMATION CONTACT. Persons can obtain further information regarding
SBREFA on the Small Business Administration's Web page at http://www.sba.gov/advocacy/825.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
that the Executive Office for OCDETF consider the impact of paperwork
and other information collection burdens imposed on the public. There
are no current or new information collection requirements associated
with this proposed rule. The records that are contributed to this
system would be created in any event by law enforcement entities and
their sharing of this information electronically will not increase the
paperwork burden on these entities.
Analysis of Regulatory Impacts
This proposed rule is not a ``significant regulatory action''
within the meaning of Executive Order 12866 and therefore further
regulatory evaluation is not necessary. This proposed rule will not
have a significant economic impact on a substantial number of small
entities, because it applies only to information about individuals.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, 109 Stat. 48, requires Federal agencies to assess the
effects of
[[Page 56854]]
certain regulatory actions on State, local, and tribal governments, and
the private sector. UMRA requires a written statement of economic and
regulatory alternatives for proposed and final rules that contain
Federal mandates. A ``Federal mandate'' is a new or additional
enforceable duty imposed on any State, local, or tribal government or
the private sector. If any Federal mandate causes those entities to
spend, in aggregate, $100 million or more in any one year, the UMRA
analysis is required. This proposed rule would not impose Federal
mandates on any State, local, or tribal government or the private
sector.
List of Subjects in 28 CFR Part 16
Administrative practice and procedure, Courts, Freedom of
information, Privacy, Sunshine Act.
Pursuant to the authority vested in the Attorney General by 5
U.S.C. 552a and delegated to me by Attorney General Order 2940-2008,
the Department of Justice proposes to amend 28 CFR part 16 as follows:
PART 16--[AMENDED]
0
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C.
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.
Subpart E--Exemption of Records Systems Under the Privacy Act
Sec. 16.71 [Amended]
0
2. Amend Sec. 16.71 as follows:
0
a. Remove the existing paragraphs (c)(1) and (c)(2) and amend paragraph
(c) to read as follows: ``The General Files System of the Office of the
Deputy Attorney General (JUSTICE/DAG-013) is exempt from 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (2), (3) and (5); and (g).''
0
b. Remove the first two sentences of paragraph (d);
0
c. Remove existing paragraph (e)(7); and
0
d. Redesignate paragraph (e)(8) as paragraph (e)(7).
Sec. 16.91 [Amended]
0
3. Amend Sec. 16.91 by removing paragraphs (u) and (v)
Sec. 16.135 [Added]
0
4. Add Sec. 16.135 to subpart E to read as follows:
Sec. 16.135 Exemptions of Executive Office for Organized Crime Drug
Enforcement Task Forces Systems.
(a) The following systems of records are exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3),
(4)(G), (H), and (I), (5), and (8); (f); and (g):
(1) The Organized Crime Drug Enforcement Task Forces Management
Information System (OCDETF MIS) (JUSTICE/OCDETF-001); and
(2) The Organized Crime Drug Enforcement Task Force Fusion Center
and International Organized Crime Intelligence and Operations Center
System (JUSTICE/OCDETF-002).
(b) These exemptions apply only to the extent that information is
subject to exemption under 5 U.S.C. 552a(j) and/or (k).
(c) Exemptions from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3) because to provide the subject with an
accounting of disclosures of records in these systems could inform that
individual of the existence, nature, or scope of an actual or potential
law enforcement or counterintelligence investigation by the Organized
Crime Drug Enforcement Task Forces, the Organized Crime Drug
Enforcement Task Force Fusion Center, the International Organized Crime
Intelligence and Operations Center, or the recipient agency, and could
permit that individual to take measures to avoid detection or
apprehension, to learn of the identity of witnesses and informants, or
to destroy evidence, and would therefore present a serious impediment
to law enforcement or counterintelligence efforts. In addition,
disclosure of the accounting would amount to notice to the individual
of the existence of a record. Moreover, release of an accounting may
reveal information that is properly classified pursuant to Executive
Order.
(2) From subsection (c)(4) because this subsection is inapplicable
to the extent that an exemption is being claimed for subsections
(d)(1), (2), (3), and (4).
(3) From subsection (d)(1) because disclosure of records in the
system could alert the subject of an actual or potential criminal,
civil, or regulatory violation of the existence of that investigation,
of the nature and scope of the information and evidence obtained as to
his or her activities, of the identity of confidential witnesses and
informants, of the investigative interest of the Organized Crime Drug
Enforcement Task Forces, the Organized Crime Drug Enforcement Task
Force Fusion Center, the International Organized Crime Intelligence and
Operations Center, and other intelligence or law enforcement agencies
(including those responsible for civil proceedings related to laws
against drug trafficking or related financial crimes or international
organized crime); could lead to the destruction of evidence, improper
influencing of witnesses, fabrication of testimony, and/or flight of
the subject; could reveal the details of a sensitive investigative or
intelligence technique, or the identity of a confidential source; or
could otherwise impede, compromise, or interfere with investigative
efforts and other related law enforcement and/or intelligence
activities. In addition, disclosure could invade the privacy of third
parties and/or endanger the life, health, and physical safety of law
enforcement personnel, confidential informants, witnesses, and
potential crime victims. Access to records could also result in the
release of information properly classified pursuant to Executive Order.
(4) From subsection (d)(2) because amendment of the records thought
to be inaccurate, irrelevant, incomplete, or untimely would also
interfere with ongoing investigations, criminal or civil law
enforcement proceedings, and other law enforcement activities; would
impose an impossible administrative burden by requiring investigations,
analyses, and reports to be continuously reinvestigated and revised;
and may impact information properly classified pursuant to Executive
Order.
(5) From subsections (d)(3) and (4) because these subsections are
inapplicable to the extent that exemption is claimed from subsections
(d)(1) and (2) and for the reasons stated in paragraphs (b)(3) and
(b)(4), above.
(6) From subsection (e)(1) because, in the course of their
acquisition, collation, and analysis of information under the statutory
authority granted, the Organized Crime Drug Enforcement Task Forces,
the Organized Crime Drug Enforcement Task Force Fusion Center, and the
International Organized Crime Intelligence and Operations Center will
occasionally obtain information, including information properly
classified pursuant to Executive Order, that concerns actual or
potential violations of law that are not strictly within their
statutory or other authority or may compile and maintain information
which may not be relevant to a specific investigation or prosecution.
This is because it is impossible to determine in advance what
information collected during an investigation or in support of these
mission activities will be important or crucial to an investigation. In
the interests of effective law enforcement, it is necessary to retain
such information in this system of records because it can aid in
establishing patterns of criminal activity of a suspect and can provide
valuable leads for federal and other law
[[Page 56855]]
enforcement agencies. This consideration applies equally to information
acquired from, or collated or analyzed for, both law enforcement
agencies and agencies of the U.S. foreign intelligence community and
military community.
(7) From subsection (e)(2) because in a criminal, civil, or
regulatory investigation, prosecution, or proceeding, the requirement
that information be collected to the greatest extent practicable from
the subject individual would present a serious impediment to law
enforcement because the subject of the investigation, prosecution, or
proceeding would be placed on notice as to the existence and nature of
the investigation, prosecution, or proceeding and would therefore be
able to avoid detection or apprehension, to influence witnesses
improperly, to destroy evidence, or to fabricate testimony. Moreover,
thorough and effective investigation and prosecution may require
seeking information from a number of different sources.
(8) From subsection (e)(3) because to comply with the requirements
of this subsection during the course of an investigation could impede
the information-gathering process, thus hampering the investigation or
intelligence gathering. Disclosure to an individual of investigative
interest would put the subject on notice of that fact and allow the
subject an opportunity to engage in conduct intended to impede that
activity or avoid apprehension. Disclosure to other individuals would
likewise put them on notice of what might still be a sensitive law
enforcement interest and could result in the further intentional or
accidental disclosure to the subject or other inappropriate recipients,
convey information that might constitute unwarranted invasions of the
personal privacy of other persons, unnecessarily burden law enforcement
personnel in information-collection activities, and chill the
willingness of witnesses to cooperate.
(9) From subsections (e)(4)(G) and (H) because this system is
exempt from the access and amendment provisions of subsection (d).
(10) From subsection (e)(4)(I) to the extent that this subsection
could be interpreted to require more detail regarding system record
sources than has been published in the Federal Register. Should this
subsection be so interpreted, exemption from this provision is
necessary to protect the sources of law enforcement and intelligence
information and to protect the privacy and safety of witnesses and
informants and other information sources. Further, greater specificity
could compromise other sensitive law enforcement information,
techniques, and processes.
(11) From subsection (e)(5) because the acquisition, collation, and
analysis of information for law enforcement purposes from various
agencies does not permit a determination in advance or a prediction of
what information will be matched with other information and thus
whether it is accurate, relevant, timely, and complete. 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 often only be
determined in a court of law. The restrictions imposed by subsection
(e)(5) would restrict the ability of trained investigators,
intelligence analysts, and government attorneys to exercise their
judgment in collating and analyzing information and would impede the
development of criminal or other intelligence necessary for effective
law enforcement.
(12) From subsection (e)(8) because the individual notice
requirements could present a serious impediment to law enforcement by
revealing investigative techniques, procedures, evidence, or interest,
and by interfering with the ability to issue warrants or subpoenas;
could give persons sufficient warning to evade investigative efforts;
and would pose an unacceptable administrative burden on the maintenance
of these records and the conduct of the underlying investigations.
(13) From subsections (f) and (g) because these subsections are
inapplicable to the extent that the system is exempt from other
specific subsections of the Privacy Act.
Dated: August 21, 2013.
Joo Y. Chung,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2013-22370 Filed 9-13-13; 8:45 am]
BILLING CODE 4410-NY-P