[Federal Register Volume 86, Number 139 (Friday, July 23, 2021)]
[Proposed Rules]
[Pages 38955-38958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14995]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 005-2020]


Privacy Act of 1974; Implementation

AGENCY: Office of Legal Policy, United States Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: On July 14, 2021, the Office of Legal Policy (OLP), a 
component within the United States Department of Justice (DOJ or 
Department), published in the Federal Register a notice of a modified 
system of records for the OLP system of records, Judicial Nominations 
Files, JUSTICE/OLP-002. In this notice of proposed rulemaking, OLP 
proposes to modify the exemptions from certain

[[Page 38956]]

provisions of the Privacy Act claimed for this system of records, as 
well as other administrative modifications. For the reasons provided 
below, the Department proposes to amend its Privacy Act regulations. 
Public comments are invited.

DATES: Comments must be received by August 23, 2021.

ADDRESSES: You may send comments by any of the following methods:
     Email: [email protected]. To ensure proper 
handling, please reference the CPCLO Order No. in the subject line of 
the message.
     Fax: 202-307-0693.
     Mail: United States Department of Justice, Office of 
Privacy and Civil Liberties, ATTN: Privacy Analyst, Two Constitution 
Square (2Con), 145 N Street NE, Suite 8W.300, Washington, DC 20530. All 
comments sent via regular or express mail will be considered timely if 
postmarked on the day the comment period closes. To ensure proper 
handling, please reference the CPCLO Order No. in your correspondence.
     Federal eRulemaking Portal: http://www.regulations.gov. 
When submitting comments electronically, you must include the CPCLO 
Order No. in the subject box. Please note that the Department is 
requesting that electronic comments be submitted before midnight 
Eastern Daylight Savings 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 Time may want to consider this to ensure that their electronic 
comments are received.
    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 
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 personally 
identifying information that 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, may 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, below.

FOR FURTHER INFORMATION CONTACT: Matrina Matthews, Executive Officer, 
Office of Legal Policy, U.S. Department of Justice, 950 Pennsylvania 
Avenue NW, Room 4234, Washington, DC 20530-0001; telephone: (202) 616-
0040; email: [email protected].

SUPPLEMENTARY INFORMATION: The Assistant Attorney General, OLP, is 
responsible for assisting the Attorney General in, inter alia, advising 
and assisting in the selection and appointment of Federal judges. OLP 
is comprised of attorneys and other DOJ personnel responsible for 
assisting the Assistant Attorney General in executing the 
responsibilities of the office. DOJ established the recently renamed 
system of records, ``Judicial Nominations Files,'' JUSTICE/OLP-002, to 
maintain records primarily needed to assist the Assistant Attorney 
General, OLP, and the personnel within OLP, in assessing candidates for 
potential nomination to be a Federal judge and securing a judicial 
nominee's confirmation and appointment.
    OLP updated the system of records notice for JUSTICE/OLP-002, 86 FR 
37192 (July 14, 2021), to account for a number of organizational, 
procedural, and technological changes that have modernized the 
information and information system used to collect, maintain, and 
disseminate these records. The Department determined that these updates 
to the system of records notice were necessary to accurately describe 
the Department's organizational, procedural, and technological changes.
    As part of the existing process for reviewing an individual's 
potential nomination to a Federal judgeship or other related Executive 
Branch position, and securing confirmation, individuals agree to a 
number of evaluations, including but not limited to, a full background 
investigation. As disclosed in JUSTICE/OLP-002, OLP will maintain 
records relating to these investigations in its system of records. 
Given the law enforcement and national security information maintained 
in these records, as well as the examination materials used to assess a 
potential nominee, the Department has determined that it is appropriate 
to claim additional exemptions from certain Privacy Act provisions for 
these records.
    Specifically, certain classified information may be maintained in 
JUSTICE/OLP-002, including but not limited to, records related to a 
potential nominee that maintained a previous or current position with 
access to classified information and/or assigned to a national security 
sensitive position. Given the law enforcement information that may be 
discovered as part of the nomination investigation and/or evaluations, 
certain investigatory materials for law enforcement purposes may be 
maintained in this system of records. Investigatory material may also 
be used in determining suitability, eligibility, or qualification 
decisions, and such information may require exemption to the extent 
that the disclosure of such material would reveal the identity of a 
source who furnished information to the Department under an express 
promise that the identity of the source would be held in confidence. 
The Department also utilizes various examination materials to determine 
individual qualifications for appointment, which if disclosed, could 
compromise the objectivity or fairness of the Department's examination 
and vetting process.
    Finally, as an administrative matter, the Department proposes to 
modify 28 CFR 16.73 as a result of the rescindment of JUSTICE/OLP-001, 
``Freedom of Information and Privacy Appeals Index,'' and JUSTICE/OLP-
004, ``Declassification Review System.'' See 66 FR 29994 (June 6, 
2001). Specifically, the administrative edits proposed in this rule 
would: (1) Remove the current paragraphs (g), and (h); and (2) revise 
28 CFR 16.73(a), (b), (c), and (d), to account for OLP's two remaining 
systems of records that claim Privacy Act exemptions--JUSTICE/OLP-002 
and the

[[Page 38957]]

``General Files System of the Office of Legal Policy,'' JUSTICE/OLP-
003.

Executive Orders 12866 and 13563-Regulatory Review

    In accordance with 5 U.S.C. 552a(j) and 552a(k), this proposed 
action is subject to formal rulemaking procedures by giving interested 
persons an opportunity to participate in the rulemaking process 
``through submission of written data, views, or arguments,'' pursuant 
to 5 U.S.C. 553. The Department has determined that this proposed rule 
is not a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), and accordingly this proposed rule has not been reviewed 
by the Office of Information and Regulatory Affairs within the Office 
of Management and Budget pursuant to Executive Order 12866.

Regulatory Flexibility Act

    This proposed rule will only impact Privacy Act-protected records, 
which are personal and generally do not apply to an individual's 
entrepreneurial capacity, subject to limited exceptions. Accordingly, 
the Chief Privacy and Civil Liberties Officer, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact on a substantial number of small 
entities.

Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle E-
Congressional Review Act)

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996, 5 U.S.C. 801 et seq., requires the Department to comply with 
small entity requests for information and advice about compliance with 
statutes and regulations within the Department's jurisdiction. Any 
small entity that has a question regarding this document may contact 
the person listed in the FOR FURTHER INFORMATION CONTACT paragraph, 
above. Persons can obtain further information regarding SBREFA on the 
Small Business Administration's web page at https://www.sba.gov/advocacy. This proposed rule is not a major rule as defined by 5 U.S.C. 
804 of the Congressional Review Act.

Executive Order 13132--Federalism

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this proposed rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Executive Order 12988--Civil Justice Reform

    This proposed regulation meets the applicable standards set forth 
in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
drafting errors and ambiguity, minimize litigation, provide a clear 
legal standard for affected conduct, and promote simplification and 
burden reduction.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    This proposed rule will have no implications for Indian Tribal 
governments. More specifically, it does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian tribes. 
Therefore, the consultation requirements of Executive Order 13175 do 
not apply.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000, as adjusted for inflation, or more in any one 
year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires 
the Department to consider the impact of paperwork and other 
information collection burdens imposed on the public. There are no 
current or new information collection requirements associated with this 
proposed rule.

List of Subjects in 28 CFR Part 16

    Administrative Practices and Procedures, Courts, Freedom of 
Information, 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, 
the Department of Justice proposes to amend 28 CFR part 16 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, 553; 28 U.S.C. 509, 510, 
534; 31 U.S.C. 3717.

Subpart E--Exemption of Records Systems Under the Privacy Act

0
2. Revise Sec.  16.73 to read as follows:


Sec.  16.73  Exemption of Office of Legal Policy Systems.

    (a) The Judicial Nominations Files (JUSTICE/OLP-002) system of 
records is exempt from subsections (c)(3); (d); (e)(1), (e)(4)(G), (H), 
and (I); and (f) of the Privacy Act, pursuant to 5 U.S.C. 552a(k)(1), 
(k)(2), (k)(5), and (k)(6). These exemptions apply only to the extent 
that information in this system of records is subject to an exemption, 
pursuant to 5 U.S.C. 552a(k). Where compliance would not appear to 
interfere with or adversely affect OLP's processes, OLP may waive the 
applicable exemption.
    (b) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3), the requirement that an accounting be 
made available to the named subject of a record, because release of 
disclosure accountings could alert the subject of an investigation and/
or evaluation to the extent of an investigation and/or evaluation. Such 
a disclosure could also reveal investigative interests by not only OLP, 
but also other recipient agencies or components. Since release of such 
information to the subjects of an investigation would provide them with 
significant information concerning the nature of the investigation and/
or evaluation, release could result in the destruction of documentary 
evidence, improper influencing of witnesses, endangerment of the 
physical safety of confidential sources, witnesses, and law enforcement 
personnel, the fabrication of testimony, and other activities that 
could impede or compromise the investigation and/or evaluation. In 
addition, providing the individual an accounting for each disclosure 
could result in the release of properly classified information which 
would compromise the national defense or disrupt foreign policy.
    (2) From subsection (d), the access and amendment provisions, 
because many persons are contacted who, without an assurance of 
anonymity, refuse to provide information concerning the subject of an

[[Page 38958]]

investigation and/or evaluation. Access could reveal the identity of 
the source of the information and constitute a breach of the promised 
confidentiality on the part of the Department. Such breaches ultimately 
would restrict the free flow of information vital to the determination 
of a candidate's qualifications and suitability, among other 
determinations. The Department also relies on certain examination 
materials to assess and evaluate an individual's qualifications for an 
applicable position. Access and/or amendment to such material could 
reveal information about the examination and vetting process and could 
compromise its objectivity and/or fairness. Access and/or amendment to 
such material could also inappropriately advantage future candidates 
with knowledge of the examination materials. Finally, providing the 
individual access or amendment rights could result in the release of 
properly classified information which would compromise the national 
defense or disrupt foreign policy.
    (3) From subsection (e)(1), because in the collection of 
information for investigative and evaluative purposes, it is impossible 
to determine in advance what exact information may be of assistance in 
determining the qualifications and suitability of the subject of an 
investigation and/or evaluation. Information which may seem irrelevant, 
when combined with other seemingly irrelevant information, can on 
occasion provide a composite picture of a candidate which assists in 
determining whether that candidate should be nominated for appointment. 
Relevance and necessity are questions of judgment and timing, and it is 
only after the information is evaluated that the relevance and 
necessity of such information can be established. In interviewing 
individuals or obtaining other forms of information during OLP 
processes, information may be supplied to OLP which relates to matters 
incidental to the primary purpose of OLP's processes, but also relates 
to matters under the investigative jurisdiction of another agency. Such 
information cannot readily be segregated.
    (4) From subsections (e)(4)(G) and (H), and subsection (f), because 
this system is exempt from the access and amendment provisions of 
subsection (d).
    (c) The General Files System of the Office of Legal Policy 
(JUSTICE/OLP-003) system of records is exempt from subsections 
552a(c)(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H), and 
(e)(5); and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), 
(k)(1), (k)(2) and (k)(5). These exemptions apply only to the extent 
that information in this system is subject to exemption pursuant to 5 
U.S.C. 552(j), (k). Where compliance would not appear to interfere with 
or adversely affect OLP's processes, the applicable exemption may be 
waived by OLP.
    (d) 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 reveal investigative interest on the part of the Department as 
well as the recipient agency. This would permit record subjects to 
impede the investigation, e.g., destroy evidence, intimidate potential 
witnesses, or flee the area to avoid inquiries or apprehension by law 
enforcement personnel.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From subsection (d) because the records contained in this 
system relate to official Federal investigations. Individual access to 
these records might compromise ongoing investigations, reveal 
confidential informants, or constitute unwarranted invasions of the 
personal privacy of third parties who are involved in a certain 
investigation. Amendment of records would interfere with ongoing 
criminal law enforcement proceedings and impose an impossible 
administrative burden by requiring criminal investigations to be 
continuously reinvestigated.
    (4) From subsections (e)(1) and (5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced, the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
since it may aid in establishing patterns of criminal activity. 
Moreover, it would impede the specific investigation process if it were 
necessary to assure the relevance, accuracy, timeliness and 
completeness of all information obtained.
    (5) From subsections (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and would therefore be able to avoid detection, apprehension, or legal 
obligations and duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4)(G) and (H) because this system is 
exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (8) From subsection (g) because this system is exempt from the 
access and amendment provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.

    Dated: July 1, 2021.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States 
Department of Justice.
[FR Doc. 2021-14995 Filed 7-22-21; 8:45 am]
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