[Federal Register Volume 86, Number 213 (Monday, November 8, 2021)]
[Rules and Regulations]
[Pages 61687-61689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24315]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 010-2021]


Privacy Act of 1974; Implementation

AGENCY: United States Department of Justice.

ACTION: Final rule.

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SUMMARY: The United States Department of Justice (DOJ or Department) is 
finalizing without changes its Privacy Act exemption regulations for 
the system of records titled, Department of Justice Information 
Technology, Information System, and Network Activity and Access 
Records, JUSTICE/DOJ-002, which were published as a notice of proposed 
rulemaking (NPRM) (July 22, 2021). Specifically, the Department's 
regulations will exempt the records maintained in JUSTICE/DOJ-002 from 
one or more provisions of the Privacy Act. The exemptions are necessary 
to avoid interference with the efforts of DOJ and others to prevent the 
unauthorized access, use, disclosure, disruption, modification, or 
destruction of DOJ information and information systems, and to protect 
information on DOJ classified networks. The Department received no 
comments during the notice-and-comment period and is finalizing the 
rule without change.

DATES: This final rule is effective December 8, 2021.

FOR FURTHER INFORMATION CONTACT: Nickolous Ward, DOJ Chief Information 
Security Officer, (202) 514-3101, 145 N Street NE, Washington, DC 
20530.

SUPPLEMENTARY INFORMATION: In accordance with the Federal Information 
Security Modernization Act of 2014, among other authorities, DOJ is 
responsible for complying with information security policies and 
procedures requiring information security protections commensurate with 
the risk and magnitude of harm resulting from the unauthorized access, 
use, disclosure, disruption, modification, or destruction of DOJ 
information and information systems. See, e.g., 44 U.S.C. 3554 (2018). 
Consistent with these requirements, DOJ must ensure that it maintains 
accurate audit and activity records of the observable occurrences on 
its information systems and networks (also referred to as ``events'') 
that are significant and relevant to the security of DOJ information 
and information systems. These audit and activity records may include, 
but are not limited to, information that establishes what type of event 
occurred, when the event occurred, where the event occurred, the

[[Page 61688]]

source of the event, the outcome of the event, and the identity of any 
individuals or subjects associated with the event. Additionally, 
monitored events--whether detected utilizing information systems 
maintaining audit and activity records, reported to the Department by 
information system users, or reported to the Department by the 
cybersecurity research community and members of the general public 
conducting good faith vulnerability discovery activities--may 
constitute occurrences that (1) actually or imminently jeopardize, 
without lawful authority, the integrity, confidentiality, or 
availability of information or an information system; or (2) constitute 
a violation or imminent threat of violation of law, security policies, 
security procedures, or acceptable use policies. The Department has 
developed a formal process to track and document these reported 
``incidents,'' which may, in limited circumstances, include records of 
individuals reporting, or otherwise associated with, an actual or 
suspected event or incident.
    In the Federal Register of July 14, 2021 (86 FR 37188), the 
Department modified a Department-wide system of records retitled, 
``Department of Justice Information Technology, Information System, and 
Network Activity and Access Records,'' JUSTICE/DOJ-002. This system of 
records covers the Department's tracking of all DOJ information 
technology, DOJ information system, and DOJ network activity and access 
by users. These records assist Department information security 
professionals in protecting DOJ information, ensuring the secure 
operation of DOJ information systems, and tracking and documenting 
incidents reported to the agency. The revisions to this notice reflect 
changes in technology, including the increased ability of the 
Department to link individuals to information technology, information 
system, or network activity, and to better describe the Department's 
records linking individuals to reported cybersecurity incidents or 
their access to certain information technologies, information systems, 
and networks through the internet or other authorized connections.
    The Department received no comments in response to the NPRM for 
JUSTICE/DOJ-002 (86 FR 38624 (July 22, 2021)), and now finalizes this 
rule without changes. In this rulemaking, the Department exempts 
JUSTICE/DOJ-002 from certain provisions of the Privacy Act in order to 
avoid interference with the responsibilities of the Department to 
prevent the unauthorized access, use, disclosure, disruption, 
modification, or destruction of DOJ information and information 
systems. Additionally, the Department exempts JUSTICE/DOJ-002 from 
certain provisions of the Privacy Act to protect activity and audit log 
records on DOJ classified networks.
    The Department notes that the name of the system of records which 
is the subject of this rule was changed from ``Department of Justice 
Computer Systems Activity and Access Records'' to ``Department of 
Justice Information Technology, Information System, and Network 
Activity and Access Records'' in the notice that was published on July 
14, 2021. The NPRM, which was published on July 21, 2021, inadvertently 
referred to the system of records by the previous name. Additionally, 
the NPRM indicated in one place an exemption from subsection (d), and 
in another place an exemption from subsections (d)(1)-(4). In an effort 
to reduce potential confusion, the language in the final rule has been 
modified to consistently identify the system of records as being 
exempted from subsections (d)(1)-(4). Further, corrections have been 
inserted in the final rule in multiple places where the NPRM had used 
the term ``system,'' although ``system of records'' was clearly 
intended. Finally, the proposed rule stated that, in determining the 
relevance and utility of certain exempted information, it would be 
vetted and matched with other information necessarily and lawfully 
maintained by the DOJ, external federal agency subscribers, or other 
entities. Such information need only be maintained lawfully by the DOJ, 
external federal agency subscribers, or other entities for use in the 
vetting and matching described. The Department has determined that 
these changes do not significantly alter the efficacy of the notice 
that was provided to the public. The Department has made the 
adjustments in the final rule, which is published herein.

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
Principles of Regulation, and Executive Order 13563 ``Improving 
Regulation and Regulatory Review'' section 1(b), General Principles of 
Regulation.
    The Department of Justice has determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and accordingly this 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 regulation 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.

Executive Order 13132--Federalism

    This regulation 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 rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This 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 regulation 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 regulation 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.

[[Page 61689]]

Therefore, no actions were deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

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 FOR FURTHER INFORMATION CONTACT section, above. 
Persons can obtain further information regarding SBREFA on the Small 
Business Administration's web page at https://www.sba.gov/advocacy. 
This rule is not a major rule as defined by 5 U.S.C. 804 of the 
Congressional Review Act.

Paperwork Reduction Act

    This rule imposes no information collection or recordkeeping 
requirements.

List of Subjects in 28 CFR Part 16

    Administrative practices and procedures, Courts, Freedom of 
information, Privacy.

    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 amends 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. Add Sec.  16.138 to read as follows:


Sec.  16.138  Exemption of the Department of Justice Information 
Technology, Information System, and Network Activity and Access 
Records, JUSTICE/DOJ-002.

    (a) The Department of Justice Information Technology, Information 
System, and Network Activity and Access Records (JUSTICE/DOJ-002) 
system of records is exempted from subsections (c)(3); (d)(1), (2), (3) 
and (4); (e)(1), (e)(4)(G), (H), and (I); and (f) of the Privacy Act of 
1974, as amended. The exemptions in this paragraph (a) apply only to 
the extent that information in this system is subject to exemption 
pursuant to 5 U.S.C. 552a(k)(1) or (k)(2). The applicable exemption may 
be waived by the DOJ in its sole discretion where DOJ determines 
compliance with the exempted provisions of the Act would not interfere 
with or adversely affect the purpose of this system of records to 
ensure that the Department can track information system access and 
implement information security protections commensurate with the risk 
and magnitude of harm that could result from the unauthorized access, 
use, disclosure, disruption, modification, or destruction of DOJ 
information and DOJ information systems.
    (b) Exemptions from the particular subsections listed in paragraph 
(a) of this section 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 this system of 
records is exempt from the access provisions of subsection (d). Also, 
because making available to a record subject the accounting of 
disclosures of records concerning the subject would specifically reveal 
investigative interests in the records by the DOJ or other entities 
that are recipients of the disclosures. Revealing this information 
could compromise sensitive information classified in the interest of 
national security, or interfere with the overall law enforcement 
process by revealing a pending sensitive cybersecurity investigation. 
Revealing this information could also permit the record subject to 
obtain valuable insight concerning the information obtained during any 
investigation and to take measures to impede the investigation, e.g., 
destroy evidence or alter techniques to evade discovery.
    (2) From subsection (d)(1), (2), (3) and (4), (e)(4)(G) and (H), 
and (f) because these provisions concern individual access to and 
amendment of records, compliance with which regarding certain law 
enforcement and classified records could alert the subject of an 
authorized law enforcement activity about that particular activity and 
the interest of the DOJ and/or other law enforcement or intelligence 
agencies. Providing access could compromise information classified to 
protect national security, or reveal sensitive cybersecurity 
investigative techniques; provide information that would allow a 
subject to avoid detection; or constitute a potential danger to the 
health or safety of law enforcement personnel or confidential sources.
    (3) From subsection (e)(1) because it is not always possible to 
know in advance what information is relevant and necessary for law 
enforcement and intelligence purposes. The relevance and utility of 
certain information that may have a nexus to cybersecurity threats may 
not always be fully evident until and unless it is vetted and matched 
with other information lawfully maintained by the DOJ or other 
entities.
    (4) From subsection (e)(4)(I), to the extent that this subsection 
is interpreted to require more detail regarding the record sources in 
this system than has been published in the Federal Register. Should the 
subsection be so interpreted, exemption from this provision is 
necessary to protect the sources of law enforcement and intelligence 
information. Further, greater specificity of sources of properly 
classified records could compromise national security.

    Dated: October 26, 2021.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States 
Department of Justice.
[FR Doc. 2021-24315 Filed 11-5-21; 8:45 am]
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