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###### Department of Justice

          - 28 CFR Part 16
          - [CPCLO Order No. 003-2021]

# AGENCY:

United States Department of Justice.

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

                        On July 14, 2021 in the publication of the                         **Federal Register**                         at 86 FR 37188, the Department of Justice (Department or DOJ), has published a notice of a modified system of records that was retitled as, “Department of Justice Information Technology, Information System, and Network Activity and Access Records,” JUSTICE/DOJ-002. In this notice of proposed rulemaking, DOJ proposes to exempt this system of records from certain provisions of the Privacy Act in order 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. For the reasons provided below, the Department proposes to amend its Privacy Act regulations by establishing an exemption for records in this system from certain provisions of the Privacy Act. Public comment is invited.                    

# DATES:

Comments must be received by August 23, 2021.

# ADDRESSES:

You may send comments by any of the following methods:
      -  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 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.                    
      -  Mail:                          United States Department of Justice, Office of Privacy and Civil Liberties, ATTN: Privacy Analyst, Office of Privacy and Civil Liberties, 145 N St. 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.                    

*Posting of Public Comments:*                         Interested persons are invited to                               ( print page 38625)                            participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule by one of the methods and by the deadline stated above. All comments must be submitted in English, or accompanied by an English translation. The Department also invites comments that relate to the economic, environmental, or federalism effects that might result from this rule. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.                    

                        Please note that all comments received are considered part of the public record and made available for public inspection at                         *www.regulations.gov.*                         Such information includes personally identifying information (PII) (such as your name, address, etc.). Interested persons are not required to submit their PII in order to comment on this rule. However, any PII that is submitted is subject to being posted to the publicly-accessible                         *www.regulations.gov*                         site without redaction.                    

Confidential business information clearly identified in the first paragraph of the comment as such will not be placed in the public docket file.

                        The Department may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of                         *http://www.regulations.gov.*                         To inspect the agency's public docket file in person, you must make an appointment with the agency. Please see the                         **FOR FURTHER INFORMATION CONTACT**                         paragraph, below, for agency contact information.                    

# 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 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.                

                    The DOJ notice that published in the July 14, 2021 issue of the                     **Federal Register**                    , at 86 FR 37188 has proposed modifications to 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 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.                

In this rulemaking, the Department proposes to exempt 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 proposes to exempt JUSTICE/DOJ-002 from certain provisions of the Privacy Act to protect activity and audit log records on DOJ classified networks.

## Executive Orders 12866 and 13563—Regulatory Review

In accordance with 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. This proposed rule will promulgate certain Privacy Act exemptions for a DOJ system of records titled, “Department of Justice Information Technology, Information System, and Network Activity and Access Records,” JUSTICE/DOJ-002. This proposed rule does not raise novel legal or policy issues, nor does it adversely affect the economy, the budgetary impact of entitlements, grants, user fees, loan programs, or the rights and obligations of recipients thereof in a material way. 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 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.                          ( print page 38626)    

## 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**                     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 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

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

2. Add § 16.138 to subpart E to read as follows: 

§ 16.138 

(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); (e)(1), (e)(4)(G), (H), and (I); and (f) of the Privacy Act of 1974, as amended. These exemptions 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 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 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 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 certain law enforcement and classified records, compliance of which 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 necessarily and 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                               ( print page 38627)                            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: July 1, 2021.

Peter A. Winn,

Acting Chief Privacy and Civil Liberties Officer, United States Department of Justice.

[FR Doc. 2021-14987 Filed 7-21-21; 8:45 am]

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