[Federal Register Volume 78, Number 179 (Monday, September 16, 2013)]
[Proposed Rules]
[Pages 56852-56855]
From the Federal Register Online via the Government Printing 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