[Federal Register Volume 71, Number 122 (Monday, June 26, 2006)]
[Proposed Rules]
[Pages 36294-36295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9976]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

28 CFR Part 16

[AAG/A Order No. 010-2006]


Privacy Act of 1974: Implementation

AGENCY: Drug Enforcement Administration, DOJ.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice (DOJ), Drug Enforcement 
Administration (DEA), proposes to exempt a new system of records 
entitled the El Paso Intelligence Center (EPIC) Seizure System (ESS) 
(JUSTICE/DEA-022) from subsections (c)(3) and (4); (d)(1), (2), (3), 
and (4); (e)(1), (2), (3), (5), and (8); and (g) of the Privacy Act of 
1974 pursuant to 5 U.S.C. 552a(j) and (k). The exemption is necessary 
to avoid interference with the law enforcement, intelligence, counter-
drug, counterterrorism functions and responsibilities of the DEA and 
its El Paso Intelligence Center (EPIC). Public comment is invited.

DATES: Comments must be received by August 7, 2006.

ADDRESSES: Address all comments to Mary E. Cahill, Management Analyst, 
Management and Planning Staff, Justice Management Division, Department 
of Justice, Washington, DC 20530 (Room 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 review an 
electronic version of this proposed rule at http://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 http://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 E. Cahill, (202) 307-1823.

SUPPLEMENTARY INFORMATION: In the notice section of today's Federal 
Register, the DEA provides a description of the ``El Paso Intelligence 
Center (EPIC) Seizure System (ESS), JUSTICE/DEA-022'' in compliance 
with the Privacy Act, 5 U.S.C. 552a(e)(4) and (11). The ESS is a system 
of records established to support the mission of the El Paso 
Intelligence Center to support criminal investigations conducted by 
Federal, state, local, tribal, and international law enforcement 
agencies. EPIC maintains information in databases obtained from 
contributing law enforcement agencies and provides information upon 
request from authorized law enforcement agencies and officers in 
support of criminal investigations. Additional information about EPIC 
and its operations is provided in the Federal Register notice 
referenced above.

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 (SBREFA) of 
1996 requires the DEA to comply with small entity requests for 
information and advice about compliance with statutes and regulations 
within DEA 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/advo/laws/law_lib.html.

List of Subjects in 28 CFR Part 16

    Administrative practices and procedures, Courts, Freedom of 
Information Act, Government in the Sunshine Act, Privacy Act.

    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--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

    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 16.98 is amended to add new paragraphs (g) and (h) to 
read as follows:


Sec.  16.98  Exemption of Drug Enforcement Administration Systems--
limited access.

* * * * *
    (g) 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), (3), (5), and 
(8); and (g): EPIC Seizure System (ESS) (JUSTICE/DEA-022). 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), (k)(1), and 
(k)(2). Where compliance would not appear to interfere with or 
adversely affect the law enforcement and counter-drug purposes of this 
system, and the overall law enforcement process, the applicable 
exemption may be waived by the DEA in its sole discretion.
    (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 specifically reveal any investigative interest in the individual. 
Revealing this information would permit the subject of an investigation 
of an actual or potential criminal, civil, or regulatory violation to 
determine whether he is the subject of investigation, or to obtain 
valuable information concerning the nature of that investigation, and 
the information obtained, or the identity of witnesses and informants. 
Similarly, disclosing this information could reasonably be expected to 
compromise ongoing investigatory efforts by notifying the record 
subject that he/she is under investigation. This information could also 
permit the record subject to take measures to impede the investigation, 
e.g., destroy evidence, intimidate potential witnesses, or flee the 
area to avoid or impede the investigation.
    (2) From subsection (c)(4) because this system is exempt from the 
access and amendment provisions of subsection (d).
    (3) From subsections (d)(1), (2), (3), and (4) because these 
provisions concern individual access to and amendment of records 
contained in this system, which consists of counter-drug and criminal 
investigatory records. Compliance with these provisions could alert the 
subject of an investigation of an actual or potential criminal, civil, 
or regulatory violation of the existence of that investigation, or the 
nature and scope of the information and evidence obtained as to his 
activities, of the identity of witnesses and informants, or would 
provide information that could enable the subject to avoid detection or 
apprehension. These factors would present a serious impediment to

[[Page 36295]]

effective law enforcement because they could prevent the successful 
completion of the investigation; endanger the physical safety of 
witnesses or informants; or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of 
testimony.
    (4) From subsection (e)(1) because it is not always possible to 
know in advance what information is relevant and necessary to complete 
an identity comparison between the individual being screened and a 
known or suspected criminal or terrorist. Also, it may not always be 
known what information will be relevant to law enforcement for the 
purpose of conducting an operational response or on-going 
investigation.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to law enforcement and counter-drug 
efforts in that it would put the subject of an investigation, study or 
analysis on notice of that fact, thereby permitting the subject to 
engage in conduct designed to frustrate or impede that activity. The 
nature of counter-drug investigations is such that vital information 
about an individual frequently can be obtained only 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.
    (6) From subsection (e)(3), to the extent that this subsection is 
interpreted to require EPIC to provide notice to an individual if EPIC 
receives information about that individual from a third party. Should 
the subsection be so interpreted, exemption from this provision is 
necessary to avoid impeding counter-drug efforts by putting the subject 
of an investigation, study or analysis on notice of that fact, thereby 
permitting the subject to engage in conduct intended to frustrate or 
impede that activity.
    (7) From subsection (e)(5) because many of the records in this 
system are derived from other domestic record systems and therefore it 
is not possible for the DEA and EPIC to vouch for their compliance with 
this provision; however, EPIC has implemented internal quality 
assurance procedures to ensure that ESS data is as thorough, accurate, 
and current as possible. In addition, EPIC supports but does not 
conduct investigations; therefore, it must be able to collect 
information related to illegal drug and other criminal activities and 
encounters for distribution to law enforcement and intelligence 
agencies that do conduct counter-drug investigations. In the collection 
of information for law enforcement and counter-drug 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 (e)(5) would limit the ability of those agencies' trained 
investigators and intelligence analysts to exercise their judgment in 
conducting investigations and impede the development of intelligence 
necessary for effective law enforcement and counterterrorism efforts. 
EPIC has, however, implemented internal quality assurance procedures to 
ensure that ESS data is as thorough, accurate, and current as possible. 
ESS is also exempt from the requirements of subsection (e)(5) in order 
to prevent the use of a challenge under subsection (e)(5) as a 
collateral means to obtain access to records in the ESS. ESS records 
are exempt from the access and amendment requirements of subsection (d) 
of the Privacy Act in order to protect the integrity of investigations. 
Exempting ESS from subsection (e)(5) serves to prevent the assertion of 
challenges to a record's accuracy, timeliness, completeness, and/or 
relevance under subsection (e)(5) to circumvent the exemption claimed 
from subsection (d).
    (8) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on the DEA and EPIC and could alert 
the subjects of counter-drug, counterterrorism, law enforcement, or 
intelligence investigations to the fact of those investigations when 
not previously known. Additionally, compliance could present a serious 
impediment to law enforcement as this could interfere with the ability 
to issue warrants or subpoenas and could reveal investigative 
techniques, procedures, or evidence.
    (9) From subsection (g) to the extent that the system is exempt 
from other specific subsections of the Privacy Act.

    Dated: June 19, 2006.
Lee J. Lofthus,
Acting Assistant Attorney General for Administration.
 [FR Doc. E6-9976 Filed 6-23-06; 8:45 am]
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