[Federal Register Volume 86, Number 144 (Friday, July 30, 2021)]
[Proposed Rules]
[Pages 40972-40974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15884]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 008-2021]


Privacy Act of 1974; Implementation

AGENCY: Justice Management Division (JMD), United States Department of 
Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice (Department or DOJ), Justice 
Management Division (JMD), in the Notices section of this issue of the 
Federal Register, is publishing a new system of records, ``Security 
Monitoring and Analytics Service Records,'' JUSTICE/JMD-026. In this 
notice of proposed rulemaking, DOJ proposes to exempt this system of 
records from certain provisions of the Privacy Act to avoid 
interference with efforts to prevent the unauthorized access, use, 
disclosure, disruption, modification, or destruction of information, 
information systems, and networks of DOJ and external federal agency 
subscribers. For the reasons provided below, the Department proposes to 
amend its Privacy Act regulations by establishing an exemption from 
certain provisions of the Privacy Act for this system of records. 
Public comment is invited.

DATES: Comments must be received by August 30, 2021.

ADDRESSES: You may send comments by any of the following methods:
    <bullet> 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.
    <bullet> 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 
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, agencies 
are 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). 
Executive Order No. 13800, Strengthening the Cybersecurity of Federal 
Networks and Critical Infrastructure (May 2017), directs agency heads 
to show preference in their procurement for shared IT services, to the 
extent permitted by law, including email, cloud, and cybersecurity 
services. Office of Management and Budget (OMB) Memorandum M-19-16, 
Centralized Mission Support Capabilities for the Federal Government 
(April 26, 2019), establishes the framework for implementing the 
``Sharing Quality Services'' across agencies. The Economy Act of 1932, 
as amended, 31 U.S.C. 1535, authorizes agencies to enter into 
agreements to obtain supplies or services from another agency. 
Consistent with these authorities, the JMD, Office of the Chief 
Information Officer (OCIO), Cybersecurity Services Staff (CSS), 
developed the Security Monitoring and Analytics Service (SMAS) system 
to provide DOJ-managed information technology service offerings to 
other federal agencies wishing to leverage DOJ's cybersecurity 
services, referred to as ``external federal agency subscribers.'' This 
system provides external federal agency subscribers with the technical 
capability to protect their data from malicious or accidental threats 
using a DOJ-managed system. Elsewhere in the Federal Register, JMD 
published a notice of a new system of records titled, ``Security 
Monitoring and Analytics Service Records,'' JUSTICE/JMD-026, to provide 
the public notice of the records maintained by DOJ while implementing 
SMAS.
    In this rulemaking, the Department proposes to exempt JUSTICE/JMD-
026 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 external federal agency subscribers' information and 
information systems. Additionally, the

[[Page 40973]]

Department proposes to exempt JUSTICE/JMD-026 from certain provisions 
to assist DOJ and external federal agency subscribers with protecting 
such data and ensuring the secure operation of information systems.

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. This proposed rule will promulgate certain Privacy Act 
exemptions for a DOJ system of records titled, ``Security Monitoring 
and Analytics Service Records,'' JUSTICE/JMD-026. 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.

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

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. Amend Sec.  16.76 by adding paragraphs (e) and (f) to read as 
follows:


Sec.  16.76  Exemption of Justice Management Division.

* * * * *
    (e) The following system of records is exempted from 5 U.S.C. 
552a(c)(3); (d); (e)(1), (e)(4)(G), (H), and (I); and (f): Department 
of Justice Security Monitoring and Analytics System (JUSTICE/JMD-025). 
These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). Where 
DOJ determines compliance would not appear to 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 information systems, the applicable exemption may be waived by the 
DOJ in its sole discretion.
    (f) 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, external federal agency

[[Page 40974]]

subscribers, or other entities that are recipients of the disclosures. 
Revealing this information could compromise sensitive information 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 sensitive records, compliance 
of which could alert the subject of an authorized law enforcement 
activity about that particular activity and the interest of the DOJ, 
external federal agency subscribers, and/or other entities that are 
recipients of the disclosure. Providing access could compromise 
sensitive information, 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 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, external 
federal agency subscribers, 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 information.

    Dated: July 20, 2021.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States 
Department of Justice.
[FR Doc. 2021-15884 Filed 7-29-21; 8:45 am]
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