[Federal Register Volume 72, Number 187 (Thursday, September 27, 2007)]
[Rules and Regulations]
[Pages 54825-54826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19129]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

28 CFR PART 16

[AAG/A Order No. 032-2007]


Privacy Act of 1974: Implementation

AGENCY: Drug Enforcement Administration, DOJ.

ACTION: Final rule.

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SUMMARY: The Department of Justice (DOJ), Drug Enforcement 
Administration (DEA), is exempting a Privacy Act system of records from 
the following subsections of the Privacy Act: (c)(3) and (4), (d)(1), 
(2), (3), and (4); (e)(1), (2), (3), (5), and (8); and (g), pursuant to 
5 U.S.C. 552a (j) and (k). The Privacy Act system of records is the 
``El Paso Intelligence Center (EPIC) Seizure System, (JUSTICE/DEA-
022).'' The exemptions are necessary to prevent the compromise of 
ongoing investigative efforts, to help ensure the integrity of law 
enforcement and investigatory information, to ensure third party 
privacy, and to protect the physical safety of sources of information 
and law enforcement personnel.

DATES: Effective Date: This final rule is effective September 27, 2007.

FOR FURTHER INFORMATION CONTACT: Joo Chung, Counsel, Privacy and Civil 
Liberties Office, 202-514-4921.

SUPPLEMENTARY INFORMATION: On June 26, 2006 (71 FR 36294), a proposed 
rule was published in the Federal Register with an invitation to 
comment. No comments were received. This final rule contains 
corrections to typographic errors appearing in the proposed rule and a 
revised justification for the exemption claimed from subsection (e)(3), 
found at (h)(6). The revised justification more specifically addresses 
the Privacy Act's notice requirement of subsection (e)(3) and, 
therefore increases the accuracy and clarity of the final rule.
    This rule relates to individuals rather than to small business 
entities. Nevertheless, pursuant to the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, this 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 Procedure, Freedom of Information Act, 
Government in the Sunshine Act, and Privacy Act.

0
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, 28 CFR 
part 16 is amended as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

0
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.


0
2. Section 16.98 is amended by adding 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): El Paso Intelligence Center (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 potentially reveal any investigative interest in the individual. 
Revealing this information would permit the subject of an

[[Page 54826]]

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, of 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 
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) because the requirements thereof would 
constitute a serious impediment to law enforcement in that they could 
compromise the existence of an actual or potential confidential 
investigation and/or permit the record subject to speculate on the 
identity of a potential confidential source, and endanger the life, 
health or physical safety of either actual or potential confidential 
informants and witnesses, and of investigators/law enforcement 
personnel. In addition, the notification requirement of subsection 
(e)(3) could impede collection of that information from the record 
subject, making it necessary to collect the information solely from 
third party sources and thereby inhibiting law enforcement efforts.
    (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. 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: September 20, 2007.
Lee J. Lofthus,
Assistant Attorney General for Administration.
[FR Doc. E7-19129 Filed 9-26-07; 8:45 am]
BILLING CODE 4410-09-P