[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

[[Page 23176]]

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]
BILLING CODE 4410-09-P