[Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)]
[Proposed Rules]
[Pages 23173-23176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8769]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 006-2012]
Privacy Act of 1974: Implementation
AGENCY: Drug Enforcement Administration, United States Department of
Justice.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice (DOJ), Drug Enforcement
Administration (DEA) proposes to amend its Privacy Act regulations for
the modified system of records entitled the Investigative Reporting and
Filing System (IRFS) (JUSTICE/DEA-008), published April 11, 2012 in the
Federal Register. This system will be exempt from subsections (c)(3)
and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G), (H), (I),
(5), and (8); (f); (g); and (h) of the Privacy Act of 1974 for the
reasons set forth in the following text. The exemptions are necessary
to avoid interference with the law enforcement and counterterrorism
functions and responsibilities of the DEA.
DATES: Comments must be received by May 18, 2012.
ADDRESSES: Address all comments to the Department of Justice, Attn:
Privacy Analyst, Office of Privacy and Civil Liberties, Department of
Justice, National Place Building, 1331 Pennsylvania Avenue NW., Suite
1000, Washington, DC 20530 or by facsimile (202) 307-0693. To ensure
proper handling, please reference the CPCLO Order number in your
correspondence. You may review an electronic version of the proposed
rule at http://www.regulations.gov and may also comment at http://www.regulations.gov.
[[Page 23174]]
Please include the CPCLO Order number in the subject box.
Please note that the Department is requesting that electronic
comments be submitted before midnight Eastern Standard Time on the day
the comment period closes because http://www.regulations.gov terminates
the public's ability to submit comments at that time. Commenters in
time zones other than Eastern Standard Time may want to consider this
so that their electronic comments are received. All comments sent via
regular or express mail will be considered timely if postmarked on the
day the comment period closes.
Posting of Public Comments: Please note that all comments received
are considered part of the public record and made available for public
inspection online at http://www.regulations.gov and in the Department's
public docket. Such information includes personally identifying
information (such as your name, address, etc.) voluntarily submitted by
you as the commenter.
If you want to submit personally identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online or made available in the public docket, you must
include the phrase ``PERSONALLY IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You must also place all the personally
identifying information you do not want posted online or made available
in the public docket in the first paragraph of your comment and
identify what information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information to be
redacted within the comment. If a comment has so much confidential
business information that it cannot be effectively redacted, all or
part of that comment may not be posted online or made available in the
public docket.
Personally identifying information and confidential business
information identified and located as set forth above will be redacted
and the comment, in redacted form, will be posted online and placed in
the Department's public docket file. Please note that the Freedom of
Information Act applies to all comments received. If you wish to
inspect the agency's public docket file in person by appointment,
please see the FOR FURTHER INFORMATION CONTACT paragraph.
FOR FURTHER INFORMATION CONTACT: DEA Headquarters, Attn: Bettie E.
Goldman, CCA/Chief, 8701 Morrissette Drive, Springfield, VA 22152, 202-
307-3624.
SUPPLEMENTARY INFORMATION: This proposed rule seeks to amend 28 CFR
16.98 to add paragraphs (i) and (j) as set forth below and to delete
all references to ``Investigative Reporting and Filing System (Justice/
DEA-008)'' from paragraphs (c) and (d) and to renumber the
subparagraphs in paragraph (c) accordingly. These modified paragraphs
exempt the ``Investigative Reporting and Filing System (IRFS), JUSTICE/
DEA-008'' (77 FR 21808) from certain provisions of the Privacy Act, as
amended.
In this rulemaking, the Department of Justice proposes to exempt
certain records in this Privacy Act system of records from certain
provisions of the Privacy Act because the system contains material
compiled for law enforcement purposes.
Regulatory Flexibility Act
This proposed rule relates to individuals as opposed to small
business entities. 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.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
that the Department of Justice consider the impact of paperwork and
other information collection burdens imposed on the public. There is no
current or new information collection requirements associated with this
proposed rule.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, 109 Stat. 48, requires federal agencies to assess the
effects of certain regulatory actions on State, local, and tribal
governments, and the private sector. UMRA requires a written statement
of economic and regulatory alternatives for proposed and final rules
that contain Federal mandates. A ``federal mandate'' is a new or
additional enforceable duty, imposed on any state, local, or tribal
government, or the private sector. If any federal mandate causes those
entities to spend, in aggregate, $100 million or more in any one year
the UMRA analysis is required. This proposed rule would not impose
federal mandates on any state, local, or tribal government or the
private sector.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of
Information Act, Government in the Sunshine Act, and the 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 2940-2008, 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), 553; 18 U.S.C.
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.
Subpart E--Exemption of Records Systems Under the Privacy Act
2. In Sec. 16.98, revise paragraphs (c) and (d) introductory text
and add paragraphs (i) and (j) to read as follows:
Sec. 16.98 Exemption of Drug Enforcement Administration (DEA)--
limited access.
* * * * *
(c) Systems of records identified in paragraphs (c)(1) through
(c)(6) of this section are exempted pursuant to the provisions of 5
U.S.C. 552a(j)(2) 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. In
addition, systems of records identified in paragraphs (c)(1), (c)(2),
(c)(3), (c)(4), and (c)(5) of this section are also exempted pursuant
to the provisions of 5 U.S.C. 552a(k)(1) from subsections (c)(3);
(d)(1), (2), (3) and (4); and (e)(1):
(1) Air Intelligence Program (Justice/DEA-001)
(2) Clandestine Laboratory Seizure System (CLSS) (Justice/DEA-002)
(3) Planning and Inspection Division Records (Justice/DEA-010)
(4) Operation Files (Justice/DEA-011)
(5) Security Files (Justice/DEA-013)
(6) System to Retrieve Information from Drug Evidence (STRIDE/
Ballistics) (Justice/DEA-014)
(d) Exemptions apply to the following systems of records only to
the extent that information in the systems is subject to exemption
pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2): Air Intelligence
Program (Justice/DEA-001); Clandestine Laboratory Seizure System (CLSS)
(Justice/DEA-002); Planning and Inspection Division Records (Justice/
DEA-010); and Security Files (Justice/DEA-013). Exemptions apply to the
Operations Files (Justice/DEA-011) only to the extent that information
in the
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system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and
(k)(2). Exemptions apply to the System to Retrieve Information from
Drug Evidence (STRIDE/Ballistics) (Justice/DEA-014) only to the extent
that information in the system is subject to exemption pursuant to 5
U.S.C. 552a(j)(2). Exemption from the particular subsections is
justified for the following reasons:
* * * * *
(i) 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),
(4)(G), (H), (I), (5), and (8); (f); (g); and (h): Investigative
Reporting and Filing System (IRFS) (JUSTICE/DEA-008). 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), or (k)(2). Where
compliance would not appear to interfere with or adversely affect the
law enforcement or counterterrorism purposes of this system, or the
overall law enforcement process, the applicable exemption may be waived
by the DEA in its sole discretion.
(j) 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 disclosure of records in this system could impede or
compromise an ongoing investigation, interfere with a law enforcement
activity, lead to the disclosure of properly classified information
which could compromise the national defense or disrupt foreign policy,
invade the privacy of a person who provides information in connection
with a particular investigation, or result in danger to an individual's
safety, including the safety of a law enforcement officer.
(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 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 confidential
witnesses and informants, of the investigative interest of the DEA, and
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 it, an agency may occasionally obtain information,
including information properly classified pursuant to Executive Order,
that concerns 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 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) because the requirement that individuals
supplying information be provided a form stating the requirements of
subsection (e)(3) would constitute a serious impediment to criminal 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 criminal 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.
(11) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
criminal 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 this subsection is
inapplicable
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to the extent that the system is exempt from other specific subsections
of the Privacy Act.
(13) From subsection (h) when application of those provisions could
impede or compromise an ongoing criminal investigation, interfere with
a law enforcement activity, reveal an investigatory technique or
confidential source, invade the privacy of a person who provides
information for an investigation, or endanger law enforcement
personnel.
Dated: March 12, 2012.
Nancy C. Libin,
Chief Privacy and Civil Liberties Officer, United States Department of
Justice.
[FR Doc. 2012-8769 Filed 4-17-12; 8:45 am]
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