Privacy Act of 1974; Implementation, 66125-66128 [2018-27798]
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Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations
Commissioners conduct parole hearings
and also vote in the same proceeding is
a more efficient use of resources to
balance the agency’s workload and
promote continuity of the agency’s
business. This is a procedural change
only, and will not implicate the merits
of any prisoner’s case for parole or affect
the way in which hearings are
conducted. Hence, notice and public
comment is not required.
The revised rule will take effect on
December 26, 2018.
Executive Orders 12866 and 13563
This regulation has been drafted and
reviewed in accordance with Executive
Order 12866, ‘‘Regulation Planning and
Review,’’ section 1(b), Principles of
Regulation, and in accordance with
Executive Order 13565, ‘‘Improving
Regulation and Regulatory Review,’’
section 1(b), General Principles of
Regulation. The Commission has
determined that this rule is not a
‘‘significant regulatory action’’ under
Executive Order 12866, section 3(f),
Regulatory Planning and Review, and
accordingly this rule has not been
reviewed by the Office of Management
and Budget.
Executive Order 13132
This rule will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Under Executive
Order 13132, this rule does not have
sufficient federalism implications
requiring a Federalism Assessment.
Regulatory Flexibility Act
This rule will not have a significant
economic impact upon a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 605(b).
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Small Business Regulatory Enforcement
Fairness Act of 1996 (Subtitle E—
Congressional Review Act)
This rule is not a ‘‘major rule’’ as
defined by Section 804 of the Small
Business Regulatory Enforcement
Fairness Act of 1996 Subtitle E—
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Jkt 247001
List of Subjects in 28 CFR Part 2
Administrative practice and
procedure, Prisoners, Probation and
parole.
The Final Rule
Accordingly, the U. S. Parole
Commission amends 28 CFR part 2 as
follows:
PART 2—[AMENDED]
1. The authority citation for part 2
continues to read as follows:
■
Authority: 18 U.S.C. 4203(a)(1) and
4204(a)(6).
■
2. Revise § 2.59 to read as follows:
§ 2.59
Delegation to Commissioners.
There is hereby delegated to
Commissioners the authority to conduct
hearings, with the Commissioner’s
consent, and the powers enumerated in
18 U.S.C. 4203(b) to grant or deny
parole or mandatory release, impose
reasonable conditions of parole or
mandatory release, modify or revoke
parole or mandatory release.
Dated: December 18, 2018.
Patricia K. Cushwa,
Chairman (Acting), U.S. Parole Commission.
Unfunded Mandates Reform Act of
1995
This rule will not cause State, local,
or tribal governments, or the private
sector, to spend $100,000,000 or more in
any one year, and it will not
significantly or uniquely affect small
governments. No action under the
Unfunded Mandates Reform Act of 1995
is necessary.
VerDate Sep<11>2014
Congressional Review Act, now codified
at 5 U.S.C. 804(2). The rule will not
result in an annual effect on the
economy of $100,000,000 or more; a
major increase in costs or prices; or
significant adverse effects on the ability
of United States-based companies to
compete with foreign-based companies.
Moreover, this is a rule of agency
practice or procedure that does not
substantially affect the rights or
obligations of non-agency parties, and
does not come within the meaning of
the term ‘‘rule’’ as used in Section
804(3)(C), now codified at 5 U.S.C.
804(3)(C). Therefore, the reporting
requirement of 5 U.S.C. 801 does not
apply.
[FR Doc. 2018–27803 Filed 12–21–18; 8:45 am]
BILLING CODE 4410–31–P
DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 006–2018]
Privacy Act of 1974; Implementation
Office of the Inspector General,
United States Department of Justice.
ACTION: Final rule.
AGENCY:
The Office of the Inspector
General (OIG), a component within the
United States Department of Justice
(DOJ or Department), is finalizing its
SUMMARY:
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66125
Privacy Act exemption regulations for
the system of records titled, ‘‘Data
Analytics Program Records System,’’
JUSTICE/OIG–006, which were
published as a Notice of Proposed
Rulemaking (NPRM) on March 28, 2018.
Specifically, the Department’s
regulations will exempt the records
maintained in JUSTICE/OIG–006 from
one or more provisions of the Privacy
Act and implement other administrative
changes. The exemptions are necessary
to avoid interference with the law
enforcement functions and
responsibilities of OIG. The Department
received 21 comments on the NPRM,
none of which addressed the substance
of the proposed Privacy Act exemption
regulations for JUSTICE/OIG–006.
DATES: This final rule is effective
January 25, 2019.
FOR FURTHER INFORMATION CONTACT:
Jonathan M. Malis, General Counsel,
Office of the Inspector General,
Department of Justice, 950 Pennsylvania
Avenue NW, Washington, DC 20530,
phone: (202) 514–3435.
SUPPLEMENTARY INFORMATION: Pursuant
to the Inspector General Act of 1978, as
amended, Inspectors General, including
the DOJ Inspector General, are
responsible for conducting, supervising,
and coordinating audits and
investigations to recognize and mitigate
fraud, waste, and abuse by programs
and operations of the Federal agency for
which their office is established. On
March 28, 2018, OIG published a
System of Records Notice (SORN) for its
system of records titled, ‘‘Data Analytics
Program Records System,’’ JUSTICE/
OIG–006, 83 FR 13309 (March 28, 2018),
for the records collected to implement
its data analytics (DA) program. The DA
program will assist with the
performance of OIG audits,
investigations, and reviews, and
accommodate the requirements of the
Digital Accountability and
Transparency Act of 2014, Public Law
113–101, 128 Stat. 1146. Specifically,
the DA program will provide OIG:
timely insights from the data already
stored in DOJ databases that OIG has
legal authorization to access and
maintain; the ability to monitor and
analyze data for patterns and
correlations that signal wasteful,
fraudulent, or abusive activities
impacting Department performance and
operations; the ability to find, acquire,
extract, manipulate, analyze, connect,
and visualize data; the capability to
manage vast amounts of data; the ability
to identify significant information that
can improve decision quality; and the
ability to mitigate risk of waste, fraud,
and abuse.
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Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations
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On the same day OIG published
JUSTICE/OIG–006, OIG published a
Notice of Proposed Rulemaking
(NPRM), 83 FR 13208 (March 28, 2018),
proposing to exempt records maintained
in JUSTICE/OIG–006 from certain
provisions of the Privacy Act pursuant
to 5 U.S.C. 552a(j) and (k). Additionally,
as an administrative matter, OIG
proposed replacing the current
regulations promulgated in paragraphs
(c) and (d) of 28 CFR 16.75 with the
proposed regulations for JUSTICE/OIG–
006. The current regulations
promulgated in paragraphs (c) and (d)
exempt from certain provisions of the
Privacy Act a previously rescinded OIG
SORN, ‘‘Office of the Inspector General,
Freedom of Information/Privacy Acts
(FOI/PA) Records,’’ JUSTICE/OIG–003,
66 FR 29994 (June 4, 2001), and are no
longer needed. The Department invited
public comment on the proposed
regulations. The comment period was
open through April 27, 2018. DOJ
received 21 comments on the NPRM,
none of which addressed the substance
of the proposed Privacy Act exemption
regulations for JUSTICE/OIG–006. Two
of the comments mentioned concerns
with ‘‘data mining,’’ but those concerns
were expressed in the context of
applications on web servers collecting
information about shoppers’ and users’
habits, which is not relevant to the use
or purpose of the DA program. The
remaining comments touched on
numerous other, unrelated topics such
as the Environmental Protection Agency
and environmental concerns, Russia’s
attempt to stop American oil and gas
drilling, the commodities exchange, and
the Consumer Financial Protection
Bureau.
After consideration of these public
comments, the Department will codify
in this final rule the regulations
proposed in the NPRM to protect the
ability of the OIG to properly engage in
its law enforcement functions. Three
administrative changes have been made
to the regulations proposed in the
NPRM. First, in § 16.75(d)(1), the term
‘‘interest’’ in the second sentence is
revised to read, ‘‘interests.’’ Second, in
§ 16.75(d)(3), the term ‘‘his’’ in the first
sentence is revised to read, ‘‘the
subject’s.’’ Third, in § 16.75(d)(8), a
duplicative use of the word ‘‘could’’ has
been removed.
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
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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 final rule has not been
reviewed by the Office of Management
and Budget, Office of Information and
Regulatory Affairs, in accordance with
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.
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.
Therefore, no actions were deemed
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995.
Congressional Review Act
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, 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 amends 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:
■
Executive Order 12988—Civil Justice
Reform
Authority: 5 U.S.C. 301, 552, 552a, 553;
28 U.S.C. 509, 510, 534; 31 U.S.C. 3717.
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.
Subpart E—Exemption of Records
Systems Under the Privacy Act
Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
This regulation will not impact 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.
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2. Amend § 16.75 by revising
paragraphs (c) and (d) to read as follows:
■
§ 16.75 Exemption of the Office of the
Inspector General Systems/Limited Access.
*
*
*
*
*
(c) The Data Analytics Program
Records System (JUSTICE/OIG–006)
system of records is exempt from 5
U.S.C. 552a(c)(3) and (4); (d); (e)(1), (2),
(3), (5) and (8); and (g) of the Privacy
Act. These exemptions apply only to the
extent that information in this system is
subject to exemption pursuant to 5
U.S.C. 552a(j) and/or (k). Where
compliance would not appear to
interfere with or adversely affect the law
enforcement process, and/or where it
may be appropriate to permit
individuals to contest the accuracy of
the information collected, e.g., public
source materials, the applicable
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Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations
exemption may be waived, either
partially or totally, by OIG.
(d) 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
accounting could alert the subject of an
investigation of an actual or potential
criminal, civil, or regulatory violation to
the existence of an investigation and the
fact that the individual is the subject of
the investigation. Such a disclosure
could also reveal investigative interests
by not only OIG, but also by the
recipient agency or component. Since
release of such information to the
subjects of an investigation would
provide them with significant
information concerning the nature of the
investigation, 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, flight of the subject from
the area, and other activities that could
impede or compromise the
investigation. 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 (c)(4) notification
requirements, for the same reasons that
justify exempting this system from the
access and amendment provisions of
subsection (d), and similarly, from the
accounting of disclosures provision of
subsection (c)(3). The DOJ takes
seriously its obligation to maintain
accurate records despite its assertion of
this exemption, and to the extent it, in
its sole discretion, agrees to permit
amendment or correction of DOJ
records, it will share that information in
appropriate cases.
(3) From subsection (d), the access
and amendment provisions, because
access to the records contained in this
system of records could inform the
subject of an investigation of an actual
or potential criminal, civil, or regulatory
violation, of the existence of the
investigation; of the nature and scope of
the information and evidence obtained
as to the subject’s activities; of the
identity of confidential sources,
witnesses, and law enforcement
personnel, and of information that may
enable the subject to avoid detection or
apprehension. These factors would
present a serious impediment to
effective law enforcement where they
prevent the successful completion of the
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investigation, endanger the physical
safety of confidential sources, witnesses,
and law enforcement personnel, and/or
lead to the improper influencing of
witnesses, the destruction of evidence,
or the fabrication of testimony. In
addition, granting access to such
information could disclose securitysensitive or confidential business
information or information that would
constitute an unwarranted invasion of
the personal privacy of third parties.
Finally, access to the records could
result in the release of properly
classified information that would
compromise the national defense or
disrupt foreign policy. Amendment of
the records would interfere with
ongoing investigations and law
enforcement activities and impose an
impossible administrative burden by
requiring investigations to be
continuously reinvestigated.
(4) From subsection (e)(1), because the
application of this provision could
impair investigations and interfere with
the law enforcement responsibilities of
the OIG for the following reasons:
(i) It is not possible to determine the
relevance or necessity of specific
information in the early stages of a civil,
criminal or other law enforcement
investigation, case, or matter, including
investigations in which use is made of
properly classified information.
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.
(ii) During the course of any
investigation, the OIG may obtain
information concerning actual or
potential violations of laws other than
those within the scope of its
jurisdiction. In the interest of effective
law enforcement, the OIG should retain
this information in accordance with
applicable record retention procedures,
as it may aid in establishing patterns of
criminal activity, and can provide
valuable leads for Federal and other law
enforcement agencies.
(iii) In interviewing individuals or
obtaining other forms of evidence
during an investigation, information
may be supplied to an investigator
which relates to matters incidental to
the primary purpose of the investigation
but which may also relate to matters
under the investigative jurisdiction of
another agency. Such information
cannot readily be segregated.
(5) From subsection (e)(2), because, in
some instances, the application of this
provision would present a serious
impediment to law enforcement for the
following reasons:
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66127
(i) The subject of an investigation
would be placed on notice as to the
existence of an investigation and would
therefore be able to avoid detection or
apprehension, to improperly influence
witnesses, to destroy evidence, or to
fabricate testimony.
(ii) In certain circumstances the
subject of an investigation cannot be
required to provide information to
investigators, and information relating
to a subject’s illegal acts, violations of
rules of conduct, or any other
misconduct must be obtained from other
sources.
(iii) In any investigation it is
necessary to obtain evidence from a
variety of sources other than the subject
of the investigation in order to verify the
evidence necessary for successful
litigation.
(6) From subsection (e)(3), because the
application of this provision would
provide the subject of an investigation
with substantial information which
could impede or compromise the
investigation. Providing such notice to a
subject of an investigation could
interfere with an undercover
investigation by revealing its existence,
and could endanger the physical safety
of confidential sources, witnesses, and
investigators by revealing their
identities.
(7) From subsection (e)(5), because the
application of this provision would
prevent the collection of any data not
shown to be accurate, relevant, timely,
and complete at the moment it is
collected. In the collection of
information for law enforcement
purposes, it is impossible to determine
in advance what information is
accurate, relevant, timely, and complete.
Material that may seem unrelated,
irrelevant, or incomplete when collected
may take on added meaning or
significance as an investigation
progresses. The restrictions of this
provision could interfere with the
preparation of a complete investigative
report, and thereby impede effective law
enforcement.
(8) From subsection (e)(8), because to
require individual notice of disclosure
of information due to compulsory legal
process would pose an impossible
administrative burden on OIG and may
alert the subjects of law enforcement
investigations, who might be otherwise
unaware, to the fact of those
investigations. Such notice could also
reveal investigative techniques,
procedures, or evidence.
(9) From subsection (g), to the extent
that this system is exempt from the
access and amendment provisions of
subsection (d), pursuant to subsections
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Federal Register / Vol. 83, No. 246 / Wednesday, December 26, 2018 / Rules and Regulations
(j)(2), (k)(1), and (k)(2) of the Privacy
Act.
Dated: December 18, 2018.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties
Officer, United States Department of Justice.
[FR Doc. 2018–27798 Filed 12–21–18; 8:45 am]
BILLING CODE 4410–58–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[Docket Number USCG–2018–0929]
RIN 1625–AA08
Special Local Regulations; Marine
Events in the Coast Guard Sector
Detroit Captain of the Port Zone
Coast Guard, DHS.
Final rule.
AGENCY:
ACTION:
The Coast Guard is updating
its recurring special local regulations in
the Captain of the Port Detroit. This rule
updates fifteen special local regulation
locations, dates, and sizes, adds six
special local regulations, removes six
established special local regulations,
and reformats the regulations into an
easier to read table format. These
amendments will ensure safety of life on
navigable waters to be used for a various
events immediately prior to, during, and
immediately after these events.
DATES: This rule is effective January 25,
2019.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2018–
0929 in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rule.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Tracy Girard, Prevention
Department, Sector Detroit, Coast
Guard; telephone (313) 568–9564, email
Tracy.M.Girard@uscg.mil.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
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II. Background Information and
Regulatory History
On October 17, 2018 the Coast Guard
published an NPRM in the Federal
Register (83 FR 52333) entitled ‘‘Special
Local Regulations; Marine Events in the
Coast Guard Sector Detroit Captain of
the Port Zone.’’ The NPRM proposed to
establish fifteen permanent special local
regulations for annually recurring
events in the Captain of the Port Detroit
Zone under § 100.911. The NPRM was
open for comment for 30 days. There we
stated why we issued the NPRM, and
invited comments on our proposed
regulatory action related to these special
local regulations. During the comment
period that ended November 17, 2018,
we received two comments.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule
under authority in 33 U.S.C. 1233. The
Captain of the Port Detroit (COTP) has
determined that the likely combination
of recreation vessels, commercial
vessels, and an unknown number of
spectators in close proximity to these
various special local regulations along
the water pose extra and unusual
hazards to public safety and property.
Therefore, the COTP is establishing a
Special Local Regulation around the
event locations listed in table to help
minimize risks to safety of life and
property during this event.
IV. Discussion of Comments, Changes,
and the Rule
As noted above, we received two
positive comments encouraging this rule
on our NPRM published October 17,
2018. There are no changes in the
regulatory text of this rule from the
proposed rule in the NPRM.
This rule updates fifteen special local
regulation locations, dates, and sizes,
adds six special local regulations,
removes six established special local
regulations, and reformats the
regulations into an easier to read table
format. The exact duration and dates of
the special local regulations will be
determined annually. In light of the
aforementioned hazards, the COTP has
determined that a special local
regulation is necessary to protect
spectators, vessels, and participants. No
vessel or person will be permitted to
enter the special local regulation
without obtaining permission from the
COTP or a designated representative.
V. Regulatory Analyses
We developed this rule after
considering numerous statutes and
Executive orders related to rulemaking.
Below we summarize our analyses
based on a number of these statutes and
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Executive orders, and we discuss First
Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits.
Executive Order 13771 directs agencies
to control regulatory costs through a
budgeting process. This rule has not
been designated a ‘‘significant
regulatory action,’’ under Executive
Order 12866. Accordingly, this rule has
not been reviewed by the Office of
Management and Budget (OMB), and
pursuant to OMB guidance it is exempt
from the requirements of Executive
Order 13771.
This regulatory action determination
is based on the size, location, duration,
and time-of-day for each special local
regulation. Vessel traffic will be able to
safely transit most safety zones which
will impact small designated areas
within the COTP zone for short
durations of time. Moreover, the Coast
Guard will issue Broadcast Notice to
Mariners via VHF–FM marine channel
16 about the zone and the rule allows
vessels to seek permission to enter the
zone.
B. Impact on Small Entities
The Regulatory Flexibility Act of
1980, 5 U.S.C. 601–612, as amended,
requires Federal agencies to consider
the potential impact of regulations on
small entities during rulemaking. The
term ‘‘small entities’’ comprises small
businesses, not-for-profit organizations
that are independently owned and
operated and are not dominant in their
fields, and governmental jurisdictions
with populations of less than 50,000.
The Coast Guard received no comments
from the Small Business Administration
on this rulemaking. The Coast Guard
certifies under 5 U.S.C. 605(b) that this
rule will not have a significant
economic impact on a substantial
number of small entities.
While some owners or operators of
vessels intending to transit the special
local regulation may be small entities,
for the reasons stated in section V.A
above, this rule will not have a
significant economic impact on any
vessel owner or operator.
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
we want to assist small entities in
understanding this rule. If the rule
would affect your small business,
organization, or governmental
jurisdiction and you have questions
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]]>Agencies
[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Rules and Regulations]
[Pages 66125-66128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27798]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 006-2018]
Privacy Act of 1974; Implementation
AGENCY: Office of the Inspector General, United States Department of
Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of the Inspector General (OIG), a component within
the United States Department of Justice (DOJ or Department), is
finalizing its Privacy Act exemption regulations for the system of
records titled, ``Data Analytics Program Records System,'' JUSTICE/OIG-
006, which were published as a Notice of Proposed Rulemaking (NPRM) on
March 28, 2018. Specifically, the Department's regulations will exempt
the records maintained in JUSTICE/OIG-006 from one or more provisions
of the Privacy Act and implement other administrative changes. The
exemptions are necessary to avoid interference with the law enforcement
functions and responsibilities of OIG. The Department received 21
comments on the NPRM, none of which addressed the substance of the
proposed Privacy Act exemption regulations for JUSTICE/OIG-006.
DATES: This final rule is effective January 25, 2019.
FOR FURTHER INFORMATION CONTACT: Jonathan M. Malis, General Counsel,
Office of the Inspector General, Department of Justice, 950
Pennsylvania Avenue NW, Washington, DC 20530, phone: (202) 514-3435.
SUPPLEMENTARY INFORMATION: Pursuant to the Inspector General Act of
1978, as amended, Inspectors General, including the DOJ Inspector
General, are responsible for conducting, supervising, and coordinating
audits and investigations to recognize and mitigate fraud, waste, and
abuse by programs and operations of the Federal agency for which their
office is established. On March 28, 2018, OIG published a System of
Records Notice (SORN) for its system of records titled, ``Data
Analytics Program Records System,'' JUSTICE/OIG-006, 83 FR 13309 (March
28, 2018), for the records collected to implement its data analytics
(DA) program. The DA program will assist with the performance of OIG
audits, investigations, and reviews, and accommodate the requirements
of the Digital Accountability and Transparency Act of 2014, Public Law
113-101, 128 Stat. 1146. Specifically, the DA program will provide OIG:
timely insights from the data already stored in DOJ databases that OIG
has legal authorization to access and maintain; the ability to monitor
and analyze data for patterns and correlations that signal wasteful,
fraudulent, or abusive activities impacting Department performance and
operations; the ability to find, acquire, extract, manipulate, analyze,
connect, and visualize data; the capability to manage vast amounts of
data; the ability to identify significant information that can improve
decision quality; and the ability to mitigate risk of waste, fraud, and
abuse.
[[Page 66126]]
On the same day OIG published JUSTICE/OIG-006, OIG published a
Notice of Proposed Rulemaking (NPRM), 83 FR 13208 (March 28, 2018),
proposing to exempt records maintained in JUSTICE/OIG-006 from certain
provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k).
Additionally, as an administrative matter, OIG proposed replacing the
current regulations promulgated in paragraphs (c) and (d) of 28 CFR
16.75 with the proposed regulations for JUSTICE/OIG-006. The current
regulations promulgated in paragraphs (c) and (d) exempt from certain
provisions of the Privacy Act a previously rescinded OIG SORN, ``Office
of the Inspector General, Freedom of Information/Privacy Acts (FOI/PA)
Records,'' JUSTICE/OIG-003, 66 FR 29994 (June 4, 2001), and are no
longer needed. The Department invited public comment on the proposed
regulations. The comment period was open through April 27, 2018. DOJ
received 21 comments on the NPRM, none of which addressed the substance
of the proposed Privacy Act exemption regulations for JUSTICE/OIG-006.
Two of the comments mentioned concerns with ``data mining,'' but those
concerns were expressed in the context of applications on web servers
collecting information about shoppers' and users' habits, which is not
relevant to the use or purpose of the DA program. The remaining
comments touched on numerous other, unrelated topics such as the
Environmental Protection Agency and environmental concerns, Russia's
attempt to stop American oil and gas drilling, the commodities
exchange, and the Consumer Financial Protection Bureau.
After consideration of these public comments, the Department will
codify in this final rule the regulations proposed in the NPRM to
protect the ability of the OIG to properly engage in its law
enforcement functions. Three administrative changes have been made to
the regulations proposed in the NPRM. First, in Sec. 16.75(d)(1), the
term ``interest'' in the second sentence is revised to read,
``interests.'' Second, in Sec. 16.75(d)(3), the term ``his'' in the
first sentence is revised to read, ``the subject's.'' Third, in Sec.
16.75(d)(8), a duplicative use of the word ``could'' has been removed.
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 final rule has not been reviewed by the
Office of Management and Budget, Office of Information and Regulatory
Affairs, in accordance with 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 not impact 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.
Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
Congressional Review Act
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, 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 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. Amend Sec. 16.75 by revising paragraphs (c) and (d) to read as
follows:
Sec. 16.75 Exemption of the Office of the Inspector General Systems/
Limited Access.
* * * * *
(c) The Data Analytics Program Records System (JUSTICE/OIG-006)
system of records is exempt from 5 U.S.C. 552a(c)(3) and (4); (d);
(e)(1), (2), (3), (5) and (8); and (g) of the Privacy Act. These
exemptions apply only to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a(j) and/or (k). Where
compliance would not appear to interfere with or adversely affect the
law enforcement process, and/or where it may be appropriate to permit
individuals to contest the accuracy of the information collected, e.g.,
public source materials, the applicable
[[Page 66127]]
exemption may be waived, either partially or totally, by OIG.
(d) 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 accounting could alert the subject of an investigation of an
actual or potential criminal, civil, or regulatory violation to the
existence of an investigation and the fact that the individual is the
subject of the investigation. Such a disclosure could also reveal
investigative interests by not only OIG, but also by the recipient
agency or component. Since release of such information to the subjects
of an investigation would provide them with significant information
concerning the nature of the investigation, 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, flight of
the subject from the area, and other activities that could impede or
compromise the investigation. 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 (c)(4) notification requirements, for the same
reasons that justify exempting this system from the access and
amendment provisions of subsection (d), and similarly, from the
accounting of disclosures provision of subsection (c)(3). The DOJ takes
seriously its obligation to maintain accurate records despite its
assertion of this exemption, and to the extent it, in its sole
discretion, agrees to permit amendment or correction of DOJ records, it
will share that information in appropriate cases.
(3) From subsection (d), the access and amendment provisions,
because access to the records contained in this system of records could
inform the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation, of the existence of the
investigation; of the nature and scope of the information and evidence
obtained as to the subject's activities; of the identity of
confidential sources, witnesses, and law enforcement personnel, and of
information that may enable the subject to avoid detection or
apprehension. These factors would present a serious impediment to
effective law enforcement where they prevent the successful completion
of the investigation, endanger the physical safety of confidential
sources, witnesses, and law enforcement personnel, and/or lead to the
improper influencing of witnesses, the destruction of evidence, or the
fabrication of testimony. In addition, granting access to such
information could disclose security-sensitive or confidential business
information or information that would constitute an unwarranted
invasion of the personal privacy of third parties. Finally, access to
the records could result in the release of properly classified
information that would compromise the national defense or disrupt
foreign policy. Amendment of the records would interfere with ongoing
investigations and law enforcement activities and impose an impossible
administrative burden by requiring investigations to be continuously
reinvestigated.
(4) From subsection (e)(1), because the application of this
provision could impair investigations and interfere with the law
enforcement responsibilities of the OIG for the following reasons:
(i) It is not possible to determine the relevance or necessity of
specific information in the early stages of a civil, criminal or other
law enforcement investigation, case, or matter, including
investigations in which use is made of properly classified information.
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.
(ii) During the course of any investigation, the OIG may obtain
information concerning actual or potential violations of laws other
than those within the scope of its jurisdiction. In the interest of
effective law enforcement, the OIG should retain this information in
accordance with applicable record retention procedures, as it may aid
in establishing patterns of criminal activity, and can provide valuable
leads for Federal and other law enforcement agencies.
(iii) In interviewing individuals or obtaining other forms of
evidence during an investigation, information may be supplied to an
investigator which relates to matters incidental to the primary purpose
of the investigation but which may also relate to matters under the
investigative jurisdiction of another agency. Such information cannot
readily be segregated.
(5) From subsection (e)(2), because, in some instances, the
application of this provision would present a serious impediment to law
enforcement for the following reasons:
(i) The subject of an investigation would be placed on notice as to
the existence of an investigation and would therefore be able to avoid
detection or apprehension, to improperly influence witnesses, to
destroy evidence, or to fabricate testimony.
(ii) In certain circumstances the subject of an investigation
cannot be required to provide information to investigators, and
information relating to a subject's illegal acts, violations of rules
of conduct, or any other misconduct must be obtained from other
sources.
(iii) In any investigation it is necessary to obtain evidence from
a variety of sources other than the subject of the investigation in
order to verify the evidence necessary for successful litigation.
(6) From subsection (e)(3), because the application of this
provision would provide the subject of an investigation with
substantial information which could impede or compromise the
investigation. Providing such notice to a subject of an investigation
could interfere with an undercover investigation by revealing its
existence, and could endanger the physical safety of confidential
sources, witnesses, and investigators by revealing their identities.
(7) From subsection (e)(5), because the application of this
provision would prevent the collection of any data not shown to be
accurate, relevant, timely, and complete at the moment it is collected.
In the collection of information for law enforcement purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Material that may seem unrelated,
irrelevant, or incomplete when collected may take on added meaning or
significance as an investigation progresses. The restrictions of this
provision could interfere with the preparation of a complete
investigative report, and thereby impede effective law enforcement.
(8) From subsection (e)(8), because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on OIG and may alert the subjects of
law enforcement investigations, who might be otherwise unaware, to the
fact of those investigations. Such notice could also reveal
investigative techniques, procedures, or evidence.
(9) From subsection (g), to the extent that this system is exempt
from the access and amendment provisions of subsection (d), pursuant to
subsections
[[Page 66128]]
(j)(2), (k)(1), and (k)(2) of the Privacy Act.
Dated: December 18, 2018.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2018-27798 Filed 12-21-18; 8:45 am]
BILLING CODE 4410-58-P
