[Federal Register Volume 68, Number 16 (Friday, January 24, 2003)]
[Rules and Regulations]
[Pages 3392-3395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1575]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 002-2003]


Privacy Act of 1974; Implementation

AGENCY: Department of Justice.

ACTION: Interim Rule with Request for Comments.

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SUMMARY: This interim rule with request for comments implements the 
Privacy Act of 1974, as amended (5 U.S.C. 552a, Pub. L. 93-579). This 
regulation exempts five Privacy Act systems of records of the 
Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and 
Explosives (ATF), from the subsections of the Privacy Act listed below. 
The five systems of records listed below are described in today's 
notice section of the Federal Register. As described in the rule, the 
exemptions are necessary to protect law enforcement and investigatory 
information and functions of ATF, and will be applied only to the 
extent that information in a record is subject to exemption pursuant to 
5 U.S.C. 552a(j) and (k).

DATES: This rule is effective on January 24, 2003. Written comments 
must be submitted on or before March 25, 2003.

ADDRESSES: All comments concerning this interim rule should be mailed 
to: Mary Cahill, Management and Planning Staff, Justice Management 
Division, Department of Justice, Washington, DC 20530 (1400 National 
Place Building).

FOR FURTHER INFORMATION CONTACT: Mary Cahill (202) 307-1823.

SUPPLEMENTARY INFORMATION: On November 25, 2002, the President signed 
into law the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 
2135 (2002). Under Title XI, Subtitle B of the Act, the ``authorities, 
functions, personnel, and assets'' of the Bureau of Alcohol, Tobacco, 
and Firearms are transferred to the Department of Justice, with the 
exception of certain enumerated authorities that were retained by the 
Department of the Treasury. The functions retained by the Department of 
the Treasury are the responsibility of a new Alcohol and Tobacco Tax 
and Trade Bureau. Section 1111 of the Homeland Security Act

[[Page 3393]]

further provides that the Bureau will retain its identity as a separate 
entity within the Department of Justice known as the Bureau of Alcohol, 
Tobacco, Firearms, and Explosives (ATF). The transfer takes effect 
January 24, 2003.
    In accordance with the requirements of the Privacy Act of 1974, as 
amended, 5 U.S.C. 552a, ATF is publishing its Privacy Act systems of 
records and converting certain ATF systems of records from Department 
of the Treasury systems to Department of Justice systems pursuant to 
the reorganization and transfer of ATF to the Department of Justice. 
(The publication of these systems of records as Justice systems does 
not rescind the Treasury/ATF systems of records, as they govern the 
Alcohol and Tobacco Tax and Trade Bureau within the Department of the 
Treasury.) There has been no change in the maintenance or operations of 
the systems of records by ATF, nor has there been a change in the 
exemptions claimed. Rather, these systems notices are being published 
to reflect the transfer of ATF to the Department of Justice.
    Because the transfer of ATF to the Department of Justice is 
effective on January 24, 2003, it is necessary to immediately establish 
all appropriate exemptions to the Privacy Act in order to protect law 
enforcement and investigatory information and functions of ATF. These 
exemptions must be effective on January 24, 2003, the date of the 
transfer. It would be contrary to the public interest to allow the 
disclosure of information that could compromise ongoing investigations 
and law enforcement activities of the ATF. Accordingly, pursuant to the 
good cause exceptions found at 5 U.S.C. 553(b)(3)(B) and (d)(3), the 
Department finds that notice and public procedure on this rule are 
impracticable and contrary to the public interest.
    After considering the comments received, the Department will issue 
a final rule.

Regulatory Flexibility Act

    This interim 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 interim rule will not 
have a significant economic impact on a substantial number of small 
entities.

List of Subjects in 28 CFR Part 16

    Administrative practices and procedures, Courts, Freedom of 
Information, and Privacy.

    Pursuant to the authority vested in the Attorney General by 5 
U.S.C. 552a and delegated to me by Attorney General Order 793-78, it is 
proposed to amend 28 CFR part 16 as follows:

PART 16--[AMENDED]

Subpart E--Exemption of Records Systems under the Privacy Act

    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.

    2. Section 16.106 is added to subpart E to read as follows:

Subpart E--Exemptions of Records Systems Under the Privacy Act


Sec.  16.106  Exemption of the Bureau of Alcohol, Tobacco, Firearms, 
and Explosives (ATF)--Limited Access.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d)(1), (2), (3) and (4), (e)(1), (2), and (3), 
(e)(4)(G), (H) and (I), (e)(5) and (8), (f) and (g).
    (1) Criminal Investigation Report System (JUSTICE/ATF-003).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, ATF may waive the applicable 
exemption.
    (b) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest not only of ATF, but also of the 
recipient agency. This would permit the record subject to take measures 
to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses or flee the area to avoid the thrust of the 
investigation.
    (2) From subsection (c)(4) because an exemption being claimed for 
subsection (d) makes this subsection inapplicable.
    (3) From subsections (d)(1), (e)(4)(G) and (H), (f) and (g) because 
these provisions concern individual access to investigative records, 
compliance with which could compromise sensitive information, interfere 
with the overall law enforcement process by revealing a pending 
sensitive investigation, possibly identify a confidential source or 
disclose information, including actual or potential tax information, 
which would constitute an unwarranted invasion of another individual's 
personal privacy, reveal a sensitive investigative technique, or 
constitute a potential danger to the health or safety of law 
enforcement personnel.
    (4) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is 
maintained, to require ATF to amend information thought to be 
incorrect, irrelevant or untimely, would create an impossible 
administrative and investigative burden by forcing the agency to 
continuously retrograde its investigations attempting to resolve 
questions of accuracy, etc.
    (5) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (6) From subsection (e)(1) because: (i) It is not possible in all 
instances to determine relevancy or necessity of specific information 
in the early stages of a criminal or other investigation.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative activity can be 
established.
    (iii) In any investigation, ATF might obtain information concerning 
violations of law not under its jurisdiction, but in the interest of 
effective law enforcement, dissemination will be made to the agency 
charged with enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or to 
an investigative activity under the jurisdiction of another agency.
    (7) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can only be obtained from other persons who are familiar 
with such individual and his/her activities. In such investigations it 
is not feasible to rely upon information furnished by the individual 
concerning his own activities.
    (8) From subsection (e)(3) because disclosure would provide the 
subject with substantial information that could impede or compromise 
the investigation. The individual could seriously interfere with 
undercover investigative activities and could take steps to evade the 
investigation or flee a specific area.

[[Page 3394]]

    (9) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal 
Register in broad generic terms in the belief that this is all that 
subsection (e)(4)(I) of the Act requires. In the event, however, that 
this subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from 
this provision is necessary in order to protect the confidentiality of 
the sources of criminal and other law enforcement information. Such 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (10) From subsection (e)(5) because in the collection of 
information for law enforcement purposes it is impossible to determine 
in advance what information 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. The restrictions imposed by subsection (e)(5) would 
restrict the ability of trained investigators and intelligence analysts 
to exercise their judgment in reporting on investigations and impede 
the development of criminal intelligence necessary for effective law 
enforcement.
    (11) From subsection (e)(8) because the notice requirements of this 
provision could seriously interfere with a law enforcement activity by 
alerting the subject of a criminal or other investigation of existing 
investigative interest.
    (c) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d)(1), (2), (3) and (4), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (1) Internal Security Record System (JUSTICE/ATF-006).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2) and 
(k)(5). Where compliance would not appear to interfere with or 
adversely affect the overall law enforcement process, ATF may waive the 
applicable exemption.
    (d) 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 this system could inform that 
individual of the existence, nature, or scope of an actual or potential 
law enforcement investigation, and thereby seriously impede law 
enforcement efforts by permitting the record subject and other persons 
to whom he might disclose the records to avoid criminal penalties, 
civil remedies, or other measures.
    (2) From subsection (d)(1) because disclosure of records in the 
system could reveal the identity of confidential sources and result in 
an unwarranted invasion of the privacy of others. Disclosure may also 
reveal information relating to actual or potential criminal 
investigations. Such breaches would restrict the free flow of 
information which is vital to the law enforcement process and the 
determination of an applicant's qualifications.
    (3) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is 
maintained, to require ATF to amend information thought to be 
incorrect, irrelevant or untimely, would create an impossible 
administrative and investigative burden by forcing the agency to 
continuously retrograde its investigations attempting to resolve 
questions of accuracy, etc.
    (4) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (5) From subsection (e)(1) because it is often impossible to 
determine in advance if investigative records contained in this system 
are accurate, relevant, timely, complete, or of some assistance to 
either effective law enforcement investigations, or to the 
determination of the qualifications and suitability of an applicant. It 
also is necessary to retain this information to aid in establishing 
patterns of activity and provide investigative leads. Information that 
may appear irrelevant, when combined with other apparently irrelevant 
information, can on occasion provide a composite picture of a subject 
or an applicant which assists the law enforcement process and the 
determination of an applicant's suitability qualifications.
    (6) From subsection (e)(4)(G) and (H), and (f) because these 
provisions concern individual access to investigative records, 
compliance with which could compromise sensitive information, interfere 
with the overall law enforcement or qualification process by revealing 
a pending sensitive investigation, possibly identify a confidential 
source or disclose information which would constitute an unwarranted 
invasion of another individual's personal privacy, reveal a sensitive 
investigative technique, or constitute a potential danger to the health 
or safety of law enforcement personnel. In addition, disclosure of 
information collected pursuant to an employment suitability or similar 
inquiry could reveal the identity of a source who provided information 
under an express promise of confidentiality, or could compromise the 
objectivity or fairness of a testing or examination process.
    (7) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal 
Register in broad generic terms in the belief that this is all that 
subsection (e)(4)(I) of the Act requires. In the event, however, that 
this subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from 
this provision is necessary in order to protect the confidentiality of 
the sources of criminal and other law enforcement information. Such 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (e) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d)(1), (2), (3) and (4), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (1) Personnel Record System (JUSTICE/ATF-007).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, ATF may waive the applicable 
exemption.
    (f) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal the existence, nature, or scope of an actual or potential 
personnel action. This would permit the record subject to take measures 
to hamper or impede such actions.
    (2) From subsections (d)(1), (e)(4)(G) and (H), and (f) because 
many persons are contacted who, without an assurance of anonymity, 
refuse to provide information concerning a candidate for a position 
with ATF. Access could reveal the identity of the source of the 
information and constitute a breach of the promise of confidentiality 
on the part of ATF. Such breaches ultimately would restrict the free 
flow of information vital to a determination of a candidate's 
qualifications and suitability.
    (3) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is 
maintained, to require ATF to amend information thought to be 
incorrect, irrelevant or untimely, would

[[Page 3395]]

create an impossible administrative and investigative burden by forcing 
the agency to continuously retrograde its investigations attempting to 
resolve questions of accuracy, etc.
    (4) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (5) From subsection (e)(1) because:
    (i) It is not possible in all instances to determine relevancy or 
necessity of specific information in the early stages of a personnel-
related action.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative activity can be 
established.
    (iii)ATF might obtain information concerning violations of law not 
under its jurisdiction, but in the interest of effective law 
enforcement, dissemination will be made to the agency charged with 
enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or to 
an investigative activity under the jurisdiction of another agency.
    (6) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal 
Register in broad generic terms in the belief that this is all that 
subsection (e)(4)(I) of the Act requires. In the event, however, that 
this subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from 
this provision is necessary in order to protect the confidentiality of 
the sources of criminal and other law enforcement information. Such 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (g) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3), (d)(1), (2), (3) and (4), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (1) Regulatory Enforcement Record System (JUSTICE/ATF-008).
    (2) Technical and Scientific Services Record System (JUSTICE/ATF-
009).
    (3) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, ATF may waive the applicable 
exemption.
    (h) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest, whether civil, criminal or 
regulatory, not only of ATF, but also of the recipient agency. This 
would permit the record subject to take measures to impede the 
investigation, e.g., destroy evidence, intimidate potential witnesses 
or flee the area to avoid the thrust of the investigation thus 
seriously hampering the regulatory and law enforcement functions of 
ATF.
    (2) From subsections (d)(1), (e)(4)(G) and (H), and (f) because 
these provisions concern individual access to investigative and 
compliance records, disclosure of which could compromise sensitive 
information, interfere with the overall law enforcement and regulatory 
process by revealing a pending sensitive investigation, possibly 
identify a confidential source or disclose information, including 
actual or potential tax information, which would constitute an 
unwarranted invasion of another individual's personal privacy, reveal a 
sensitive investigative technique, or constitute a potential danger to 
the health or safety of law enforcement personnel.
    (3) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is 
maintained, to require ATF to amend information thought to be 
incorrect, irrelevant or untimely, would create an impossible 
administrative and investigative burden by forcing the agency to 
continuously retrograde its investigations and compliance actions 
attempting to resolve questions of accuracy, etc.
    (4) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (5) From subsection (e)(1) because:
    (i) It is not possible in all instances to determine relevancy or 
necessity of specific information in the early stages of a criminal, 
civil, regulatory, or other investigation.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative or regulatory 
activity can be established.
    (iii) In any investigation or compliance action ATF might obtain 
information concerning violations of law not under its jurisdiction, 
but in the interest of effective law enforcement, dissemination will be 
made to the agency charged with enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or 
compliance action or to an investigative activity under the 
jurisdiction of another agency.
    (6) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal 
Register in broad generic terms in the belief that this is all that 
subsection (e)(4)(I) of the Act requires. In the event, however, that 
this subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from 
this provision is necessary in order to protect the confidentiality of 
the sources of criminal, regulatory, and other law enforcement 
information. Such exemption is further necessary to protect the privacy 
and physical safety of witnesses and informants.

    Dated: January 17, 2003.
Paul R. Corts,
Assistant Attorney General for Administration.
[FR Doc. 03-1575 Filed 1-23-03; 8:45 am]
BILLING CODE 4410-FB-P