[Federal Register Volume 74, Number 105 (Wednesday, June 3, 2009)]
[Proposed Rules]
[Pages 26598-26600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12859]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 002-2009]


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 for a newly modified Privacy Act 
system of records entitled ``Organized Crime Drug Enforcement Task 
Force Fusion Center and International Organized Crime Intelligence and 
Operations 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 and International Organized Crime 
Intelligence and Operations 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 July 6, 2009.

ADDRESSES: Address all comments to Robin Moss, Privacy Analyst, Office 
of Privacy and Civil Liberties, Department of Justice, 1331 
Pennsylvania Avenue, Room 940, Washington, DC 20530. To ensure proper 
handling, please reference the CPCLO 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 
Office of Privacy and Civil Liberties 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 CPCLO Order No. in the 
subject box.

FOR FURTHER INFORMATION CONTACT: Robin Moss, 202-514-0208.

SUPPLEMENTARY INFORMATION: This proposed rule seeks to amend 28 CFR 
16.91 paragraphs (u) and (v) as set forth below. These modified 
paragraphs exempt the ``Organized Crime Drug Enforcement Task Force 
Fusion Center and International Organized Crime Intelligence and 
Operations 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. 2940-
2008, it is proposed to amend 28 CFR part 16 as follows:

[[Page 26599]]

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), 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 revising paragraphs (u) and (v) to 
read as follows:


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

    (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), (4)(G), (H) and (I), 
(5) and (8); (f) and (g) of 5 U.S.C. 552a: Organized Crime Drug 
Enforcement Task Force Fusion Center and International Organized Crime 
Intelligence and Operations 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, 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 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 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 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 activities, of the identity of confidential witnesses and 
informants, of the investigative interest of Organized Crime Drug 
Enforcement Task Force Fusion Center, 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); 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, 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, as well as may 
impact information properly classified pursuant to Executive Order.
    (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 them, both the Organized Crime Drug Enforcement 
Task Force Fusion Center and International Organized Crime Intelligence 
and Operations Center will occasionally obtain information, including 
information properly classified pursuant to Executive Order, that 
concern 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 subsections (e)(4)(G), (H) and (I) because this system is 
exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (10) 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

[[Page 26600]]

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.
    (11) 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.
    (12) 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: May 28, 2009.
Kirsten J. Moncada,
Acting Chief Privacy and Civil Liberties Officer.
[FR Doc. E9-12859 Filed 6-2-09; 8:45 am]
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