[Federal Register Volume 69, Number 200 (Monday, October 18, 2004)]
[Proposed Rules]
[Pages 61323-61325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23243]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 014-2004]


Privacy Act of 1974; Implementation

AGENCY: Criminal Division, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Criminal Division (CRM), Department of Justice, proposes 
to amend its Privacy Act regulations to add exemptions for a newly-
created Privacy Act system of records entitled ``Organized Crime Drug 
Enforcement Task Force Fusion Center System,'' JUSTICE/CRM-028, as 
described in today's notice section of the Federal Register. The 
``Organized Crime Drug Enforcement Task Force Fusion Center System,'' 
JUSTICE/CRM-028, will be exempt from the subsections of the Privacy Act 
listed below for the reasons set forth in the following text. 
Information in this system of records relates to matters of law 
enforcement, and the exemptions are necessary to avoid interference 
with law enforcement responsibilities and to protect the privacy of 
third parties.

DATES: Submit any comments by November 17, 2004.

ADDRESSES: Address all comments to Mary Cahill, Management and Planning 
Staff, Justice Management Division, Department of Justice, Washington, 
DC 20530 (1400 National Place Building), Facsimile Number (202) 307-
1853. To ensure proper handling, please reference the AAG/A Order No. 
on your correspondence. You may view an electronic version of this 
proposed rule at www.regulations.gov. You may also comment via the 
Internet to the DOJ/Justice Management Division at the following e-mail 
address: [email protected]; or by using the 
www.regulations.gov comment form for this regulation. When submitting 
comments electronically, you must include the AAG/A Order No. in the 
subject box.

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

SUPPLEMENTARY INFORMATION: This proposed rule seeks to amend 28 CFR 
16.91 to add paragraphs (u) and (v) as set forth below. These new 
paragraphs exempt the ``Organized Crime Drug Enforcement Task Force 
Fusion Center System,'' JUSTICE/CRM-028, from certain provisions of the 
Privacy Act of 1974, as amended.
    This order relates to individuals rather than small business 
entities. Nevertheless, pursuant to the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, this order 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, Sunshine Act 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 No. 793-78, 
it is proposed to amend 28 CFR part 16 as follows:

PART 16--[AMENDED]

    1. The authority citation for Part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g), and 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717 and 9701.

    2. Section 16.91 is amended by adding paragraphs (u) and (v) as 
follows:


Sec.  16.91  Exemption of Criminal Division Systems--limited access, as 
indicated.

* * * * *

[[Page 61324]]

    (u) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j) and/or (k) from subsections (c)(3) and 
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5), and (8); and (g) 
of 5 U.S.C. 552a.
    Organized Crime Drug Enforcement Task Force Fusion Center System 
(JUSTICE/CRM-028). These exemptions apply only to the extent that 
information in this system is subject to exemption pursuant to 5 U.S.C. 
552a(j) and/or (k).
    (v) 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 or counterintelligence investigation by the Organized 
Crime Drug Enforcement Task Force Fusion Center or the recipient 
agency, and could permit that individual to take measures to avoid 
detection or apprehension, to learn 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 12958 (or successor or prior Executive Order) or a 
statute and could compromise the national defense or foreign policy.
    (2) From subsection (c)(4) because this subsection is inapplicable 
to the extent that an exemption is being claimed for subsection (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 activities, of the identity of confidential witnesses and 
informants, of the investigative interest of Organized Crime Drug 
Enforcement Task Force Fusion Center and other intelligence or law 
enforcement agencies (including those responsible for civil proceedings 
related to laws against drug trafficking or related financial crimes); 
lead to the destruction of evidence, improper influencing of witnesses, 
fabrication of testimony, and/or flight of the subject; reveal the 
details of a sensitive investigative or intelligence technique, or the 
identity of a confidential source; or 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 12958 (or successor or prior Executive Order) or by 
statute, thereby compromising the national defense or foreign policy.
    (4) From subsection (d)(2) because amendment of the records thought 
to be incorrect, irrelevant, or untimely would also interfere with 
ongoing investigations, criminal or civil law enforcement proceedings, 
and other law enforcement activities and impose an impossible 
administrative burden by requiring investigations, analyses, and 
reports to be continuously reinvestigated and revised.
    (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, in the course of its 
acquisition, collation, and analysis of information under the statutory 
authority granted to it, the Organized Crime Drug Enforcement Task 
Force Fusion Center will occasionally obtain information concerning 
actual or potential violations of law that are not strictly within its 
statutory or other authority or may compile information in the course 
of an investigation which may not be relevant to a specific 
prosecution. It is impossible to determine in advance what information 
collected during an investigation will be important or crucial to the 
apprehension of fugitives. 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 and can provide valuable leads for federal and other law 
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, and 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) (to the extent applicable) because the 
requirement that individuals supplying information be provided a form 
stating the requirements of subsection (e)(3) would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants and endanger their lives, health, 
and physical safety. The individual could seriously interfere with 
undercover investigative techniques and could take appropriate steps to 
evade the investigation or flee a specific area.
    (9) 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.
    (10) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement by revealing investigative techniques, procedures, 
evidence, or interest and interfering with the ability to issue 
warrants or subpoenas, and could give persons sufficient warning to 
evade investigative efforts.
    (11) From subsection (g) because this subsection is inapplicable to 
the extent that the system is exempt from other specific subsections of 
the Privacy Act.
    (12) In addition, exemption is claimed for this system of records 
from compliance with the following

[[Page 61325]]

provisions of 5 U.S.C. 552a pursuant to the provisions of 5 U.S.C. 
552a(k): subsections (c)(3), (d), (e)(1), to the extent that the 
records contained in this system are specifically authorized to be kept 
secret in the interests of national defense and foreign policy.

    Dated: October 9, 2004.
Paul R. Corts,
Assistant Attorney General for Administration.
[FR Doc. 04-23243 Filed 10-15-04; 8:45 am]
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