Privacy Act of 1974; Implementation, 54368-54371 [2021-21340]
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54368
Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations
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§ 1.904–4
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[Amended]
Par. 6. Section 1.904–4 is amended by
removing the language ‘‘and (3)’’ from
paragraph (q)(1).
■ Par. 7. Section 1.904–6 is amended by
revising the first and second sentences
of paragraph (f) to read as follows:
■
§ 1.904–6 Allocation and apportionment of
foreign income taxes.
*
*
*
*
*
(f) * * * Some or all of the foreign
gross income of a United States
shareholder of a controlled foreign
corporation, or of a U.S. person that
owns the United States shareholder (the
‘‘U.S. owner’’), that is attributable to
foreign law inclusion regime income
with respect to a foreign law CFC
described in § 1.861–20(d)(3)(iii) or
foreign law pass-through income from a
reverse hybrid described in § 1.861–
20(d)(3)(i)(C) is assigned to the section
951A category if, were the controlled
foreign corporation the taxpayer that
recognizes the foreign gross income, the
foreign gross income would be assigned
to the controlled foreign corporation’s
tested income group (as defined in
§ 1.960–1(b)(33)) within the general
category to which an inclusion under
section 951A is attributable. The
amount of the United States
shareholder’s, or the U.S. owner’s,
foreign gross income that is assigned to
the section 951A category (or a specified
separate category associated with the
section 951A category) is based on the
inclusion percentage (as defined in
§ 1.960–2(c)(2)) of the United States
shareholder. * * *
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*
■ Par. 8. Section 1.904(g)–3 is amended
by revising paragraphs (b)(2) and (3) to
read as follows:
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§ 1.904 (g)–3 Ordering rules for the
allocation of net operating losses, net
capital losses, U.S. source losses, and
separate limitation losses, and for the
recapture of separate limitation losses,
overall foreign losses, and overall domestic
losses.
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(b) * * *
(2) Full net operating loss deduction.
If the full net operating loss (that
remains after carryovers to other taxable
years) is deducted in computing the
taxable income in a particular year
(carryover year), so that there is no
remaining net operating loss that can be
carried to other taxable years, U.S.
source losses and foreign source losses
in separate categories that comprise the
net operating loss shall be combined
with the U.S. source income or loss and
the foreign source income or loss in the
same separate categories in the
carryover year.
(3) Partial net operating loss
deduction. If the full net operating loss
(that remains after carryovers to other
taxable years) is not deducted in
computing the taxable income in a
carryover year, so that there is
remaining loss that can be carried to
other taxable years, the following rules
apply:
(i) Any U.S. source loss (not to exceed
the amount of the net operating loss
carryover deducted in computing the
taxable income in the carryover year
(the net operating loss deduction)) shall
be carried over to the extent of any U.S.
source income in the carryover year.
(ii) If the net operating loss deduction
exceeds the U.S. source loss carryover
determined under paragraph (b)(3)(i) of
this section, then separate limitation
losses that are part of the net operating
loss shall be tentatively carried over to
the extent of separate limitation income
in the same separate category in the
carryover year. If the sum of the
potential separate limitation loss
carryovers determined under the
preceding sentence exceeds the amount
of the net operating loss deduction
reduced by any U.S. source loss carried
over under paragraph (b)(3)(i) of this
section, then the potential separate
limitation loss carryovers shall be
reduced pro rata so that their sum
equals such amount.
(iii) If the net operating loss deduction
exceeds the sum of the U.S. and
separate limitation loss carryovers
determined under paragraphs (b)(3)(i)
and (ii) of this section, then a
proportionate part of the remaining loss
from each separate category shall be
carried over to the extent of such excess
and combined with the foreign source
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loss, if any, in the same separate
categories in the carryover year.
(iv) If the net operating loss deduction
exceeds the sum of all the loss
carryovers determined under paragraphs
(b)(3)(i), (ii), and (iii) of this section,
then any U.S. source loss not carried
over under paragraph (b)(3)(i) of this
section shall be carried over to the
extent of such excess and combined
with the U.S. source loss, if any, in the
carryover year.
*
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*
*
*
§ 1.905–4T
■
[Removed]
Par. 9. Section 1.905–4T is removed.
Oluwafunmilayo A. Taylor,
Chief, Publications and Regulations Branch,
Legal Processing Division, Associate Chief
Counsel, (Procedure and Administration).
[FR Doc. 2021–21175 Filed 9–30–21; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 009–2021]
Privacy Act of 1974; Implementation
Office of Legal Policy, United
States Department of Justice.
ACTION: Final rule.
AGENCY:
The United States Department
of Justice (DOJ or Department), is
finalizing with changes its Privacy Act
exemption regulations for the system of
records titled, ‘‘Judicial Nominations
Files,’’ JUSTICE/OLP–002, which were
published as a notice of proposed
rulemaking (NPRM) on July 23, 2021.
Specifically, the Department’s
regulations will exempt the records
maintained in JUSTICE/OLP–002 from
one or more provisions of the Privacy
Act.
SUMMARY:
This final rule is effective
November 1, 2021.
DATES:
FOR FURTHER INFORMATION CONTACT:
Matrina Matthews, Executive Officer,
Office of Legal Policy, U.S. Department
of Justice, 950 Pennsylvania Avenue
NW, Room 4234, Washington, DC
20530–0001; telephone: (202) 616–0040;
email: matrina.matthews@usdoj.gov.
SUPPLEMENTARY INFORMATION:
Background
On July 14, 2021, the Office of Legal
Policy (OLP) published in the Federal
Register a System of Records Notice
(SORN) for an OLP system of records
titled, ‘‘Judicial Nominations Files,’’
JUSTICE/OLP–002. 86 FR 37192. On
July 23, 2021, the Department published
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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations
a notice of proposed rulemaking
(NPRM) proposing to exempt records
maintained in JUSTICE/OLP–002 from
certain provisions of the Privacy Act
pursuant to 5 U.S.C. 552a(k), and
inviting public comment on the
proposed exemptions. 86 FR 38955. The
comment period was open through
August 13, 2021, for the SORN and
through August 23, 2021, for the NPRM.
The Department received no comments
on the proposed rule. After providing
the opportunity for public comment,
exemptions necessary to protect the
ability of OLP to do its judicial
nomination functions have been
codified in this final rule as proposed in
the NPRM.
The exemptions are necessary because
certain classified information may be
maintained in JUSTICE/OLP–002,
including but not limited to, records
related to a potential nominee that
maintained a previous or current
position with access to classified
information and/or assigned to a
national security sensitive position.
Moreover, given the law enforcement
information that may be discovered as
part of the nomination investigation
and/or evaluations, certain investigatory
materials for law enforcement purposes
may be maintained in this system of
records. In addition, investigatory
material may also be used in
determining suitability, eligibility, or
qualification decisions, and such
information may require exemption to
the extent that the disclosure of such
material would reveal the identity of a
source who furnished information to the
Department under an express promise
that the identity of the source would be
held in confidence. Finally, the
Department also utilizes various
examination materials to determine
individual qualifications for
appointment, which if disclosed, could
compromise the objectivity or fairness
of the Department’s examination and
vetting process.
Response to Public Comments
In its Judicial Nominations Files
SORN, published on July 14, 2021, and
its Judicial Nominations Files NPRM,
published on July 23, 2021, the
Department invited public comment.
The comment period for the SORN
closed on August 13, 2021, and the
comment period for the NPRM closed
on August 23, 2021. The Department
received no comments. Because no
comments were submitted, and because
OLP continues to assert the rationales in
support of the exemptions as stated in
the NPRM, the Department adopts in
this final rule the exemptions and
rationales proposed in the NPRM.
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Executive Orders 12866 and 13563—
Regulatory Review
This regulation has been drafted and
reviewed in accordance with Executive
Order 12866, ‘‘Regulatory Planning and
Review’’ section 1(b), Principles of
Regulation, and Executive Order 13563
‘‘Improving Regulation and Regulatory
Review’’ section 1(b), General Principles
of Regulation.
The Department of Justice has
determined that this rule is not a
‘‘significant regulatory action’’ under
Executive Order 12866, section 3(f), and
accordingly this rule has not been
reviewed by the Office of Information
and Regulatory Affairs within the Office
of Management and Budget pursuant to
Executive Order 12866.
Regulatory Flexibility Act
This regulation will only impact
Privacy Act-protected records, which
are personal and generally do not apply
to an individual’s entrepreneurial
capacity, subject to limited exceptions.
Accordingly, the Chief Privacy and Civil
Liberties Officer, in accordance with the
Regulatory Flexibility Act (5 U.S.C.
605(b)), has reviewed this regulation
and by approving it certifies that this
regulation will not have a significant
economic impact on a substantial
number of small entities.
Executive Order 13132—Federalism
This regulation will not have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with Executive Order 13132,
it is determined that this rule does not
have sufficient federalism implications
to warrant the preparation of a
Federalism Assessment.
Executive Order 12988—Civil Justice
Reform
This regulation meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988 to
eliminate drafting errors and ambiguity,
minimize litigation, provide a clear legal
standard for affected conduct, and
promote simplification and burden
reduction.
Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
This regulation will have no
implications for Indian Tribal
governments. More specifically, it does
not have substantial direct effects on
one or more Indian tribes, on the
relationship between the Federal
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54369
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, 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:
■
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. Revise § 16.73 to read as follows:
§ 16.73 Exemption of Office of Legal Policy
Systems.
(a) The Judicial Nominations Files
(JUSTICE/OLP–002) system of records is
exempt from subsections (c)(3); (d);
(e)(1), (e)(4)(G), (H), and (I); and (f) of
the Privacy Act, pursuant to 5 U.S.C.
552a(k)(1), (k)(2), (k)(5), and (k)(6). The
exemptions in this paragraph (a) apply
only to the extent that information in
this system of records is subject to an
exemption, pursuant to 5 U.S.C. 552a(k).
Where compliance would not appear to
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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations
interfere with or adversely affect the
Office of Legal Policy’s (OLP’s)
processes, OLP may waive the
applicable exemption.
(b) Exemptions from the particular
subsections in paragraph (a) of this
section are justified for the following
reasons:
(1) From subsection (c)(3), the
requirement that an accounting be made
available to the named subject of a
record, because release of disclosure
accountings could alert the subject of an
investigation and/or evaluation to the
extent of an investigation and/or
evaluation. Such a disclosure could also
reveal investigative interests by not only
OLP, but also other recipient agencies or
components. Since release of such
information to the subjects of an
investigation would provide them with
significant information concerning the
nature of the investigation and/or
evaluation, 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, and other activities that
could impede or compromise the
investigation and/or evaluation. 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 (d), the access
and amendment provisions, because
many persons are contacted who,
without an assurance of anonymity,
refuse to provide information
concerning the subject of an
investigation and/or evaluation. Access
could reveal the identity of the source
of the information and constitute a
breach of the promised confidentiality
on the part of the Department. Such
breaches ultimately would restrict the
free flow of information vital to the
determination of a candidate’s
qualifications and suitability, among
other determinations. The Department
also relies on certain examination
materials to assess and evaluate an
individual’s qualifications for an
applicable position. Access and/or
amendment to such material could
reveal information about the
examination and vetting process and
could compromise its objectivity and/or
fairness. Access and/or amendment to
such material could also inappropriately
advantage future candidates with
knowledge of the examination materials.
Finally, providing the individual access
or amendment rights could result in the
release of properly classified
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information which would compromise
the national defense or disrupt foreign
policy.
(3) From subsection (e)(1), because in
the collection of information for
investigative and evaluative purposes, it
is impossible to determine in advance
what exact information may be of
assistance in determining the
qualifications and suitability of the
subject of an investigation and/or
evaluation. Information which may
seem irrelevant, when combined with
other seemingly irrelevant information,
can on occasion provide a composite
picture of a candidate which assists in
determining whether that candidate
should be nominated for appointment.
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. In
interviewing individuals or obtaining
other forms of information during OLP
processes, information may be supplied
to OLP which relates to matters
incidental to the primary purpose of
OLP’s processes, but also relate to
matters under the investigative
jurisdiction of another agency. Such
information cannot readily be
segregated.
(4) From subsections (e)(4)(G) and (H),
and subsection (f), because this system
is exempt from the access and
amendment provisions of subsection
(d).
(c) The General Files System of the
Office of Legal Policy (JUSTICE/OLP–
003) system of records is exempt from
subsections 552a(c)(3) and (4); (d);
(e)(1), (2) and (3), (e)(4)(G) and (H), and
(e)(5); and (g) of the Privacy Act,
pursuant to 5 U.S.C. 552a(j)(2), (k)(1),
(k)(2) and (k)(5). The exemptions in this
paragraph (c) apply only to the extent
that information in this system is
subject to exemption pursuant to 5
U.S.C. 552(j), (k). Where compliance
would not appear to interfere with or
adversely affect OLP’s processes, the
applicable exemption may be waived by
OLP.
(d) Exemptions from the particular
subsections in paragraph (c) of this
section are justified for the following
reasons:
(1) From subsection (c)(3) because
making available to a record subject the
accounting of disclosures from records
concerning him/her would reveal
investigative interest on the part of the
Department as well as the recipient
agency. This would permit record
subjects to impede the investigation,
e.g., destroy evidence, intimidate
potential witnesses, or flee the area to
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avoid inquiries or apprehension by law
enforcement personnel.
(2) From subsection (c)(4) because this
system is exempt from the access
provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy
Act.
(3) From subsection (d) because the
records contained in this system relate
to official Federal investigations.
Individual access to these records might
compromise ongoing investigations,
reveal confidential informants, or
constitute unwarranted invasions of the
personal privacy of third parties who
are involved in a certain investigation.
Amendment of records would interfere
with ongoing criminal law enforcement
proceedings and impose an impossible
administrative burden by requiring
criminal investigations to be
continuously reinvestigated.
(4) From subsections (e)(1) and (5)
because in the course of law
enforcement investigations, information
may occasionally be obtained or
introduced the accuracy of which is
unclear or which is not strictly relevant
or necessary to a specific investigation.
In the interests of effective law
enforcement, it is appropriate to retain
all information since it may aid in
establishing patterns of criminal
activity. Moreover, it would impede the
specific investigation process if it were
necessary to assure the relevance,
accuracy, timeliness and completeness
of all information obtained.
(5) From subsections (e)(2) because in
a law enforcement investigation the
requirement that information be
collected to the greatest extent possible
from the subject individual would
present a serious impediment to law
enforcement in that the subject of the
investigation would be informed of the
existence of the investigation and would
therefore be able to avoid detection,
apprehension, or legal obligations and
duties.
(6) From subsection (e)(3) because to
comply with the requirements of this
subsection during the course of an
investigation could impede the
information gathering process, thus
hampering the investigation.
(7) From subsections (e)(4)(G) and (H)
because this system is exempt from the
access provisions of subsection (d)
pursuant to subsections (j) and (k) of the
Privacy Act.
(8) From subsection (g) because this
system is exempt from the access and
amendment provisions of subsection (d)
pursuant to subsections (j) and (k) of the
Privacy Act.
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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations
Dated: September 23, 2021.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties
Officer, United States Department of Justice.
[FR Doc. 2021–21340 Filed 9–30–21; 8:45 am]
BILLING CODE P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 323
List of Subjects in 32 CFR Part 323
Privacy.
[Docket ID: DOD–2019–OS–0110]
RIN 0790–AK69
PART 323—[REMOVED]
Defense Logistics Agency Privacy
Program
Accordingly, by the authority of 5
U.S.C. 301, 32 CFR part 323 is removed.
■
Defense Logistics Agency,
Department of Defense (DoD).
ACTION: Final rule.
AGENCY:
This final rule removes DoD’s
regulation concerning the Defense
Logistics Agency Privacy Program. On
April 11, 2019, the Department of
Defense published a revised DoD-level
Privacy Program rule, which contains
the necessary information for an agencywide privacy program regulation under
the Privacy Act and now serves as the
single Privacy Program rule for the
Department. That revised Privacy
Program rule also includes all DoD
component exemption rules. Therefore,
this part is now unnecessary and may be
removed from the CFR.
DATES: This rule is effective on October
1, 2021.
FOR FURTHER INFORMATION CONTACT: Lew
Oleinick at 703–767–6194.
SUPPLEMENTARY INFORMATION: DoD now
has a single DoD-level Privacy Program
rule at 32 CFR part 310 (84 FR 14728)
that contains all the codified
information required for the
Department. The Defense Logistics
Agency Program regulation at 32 CFR
part 323, last updated on July 9, 2015
(80 FR 39381), is no longer required and
can be removed.
It has been determined that
publication of this CFR part removal for
public comment is impracticable,
unnecessary, and contrary to public
interest since it is based on the removal
of policies and procedures that are
either now reflected in another CFR
part, 32 CFR part 310, or are publicly
available on the Department’s website.
To the extent that the Defense Logistics
Agency internal guidance concerning
the implementation of the Privacy Act
within the Defense Logistics Agency is
necessary, it will be issued in an
internal document.
SUMMARY:
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This rule is one of 20 separate
component Privacy rules. With the
finalization of the DoD-level Privacy
rule at 32 CFR part 310, the Department
is eliminating the need for this separate
component Privacy rule and reducing
costs to the public as explained in the
preamble of the DoD-level Privacy rule
published on April 11, 2019, at 84 FR
14728.
This rule is not significant under
Executive Order 12866, ‘‘Regulatory
Planning and Review.’’
Dated: September 27, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2021–21344 Filed 9–30–21; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2021–0201]
RIN 1625–AA00
Safety Zone; Columbia River Outfall
Project, Columbia River, Vancouver,
WA
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone for
certain navigable waters of the
Columbia River. This action is necessary
to provide for the safety of life on these
navigable waters near Knapp, WA, at
Columbia River Mile 95.8. This
regulation prohibits persons and vessels
from being in the safety zone unless
authorized by the Captain of the Port
Sector Columbia River or a designated
representative.
DATES: This rule is effective from 12:01
a.m. on October 1, 2021 through 11:59
p.m. on March 15, 2022.
ADDRESSES: To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type USCG–2021–
0201 in the search box and click
‘‘Search.’’ Next, in the Document Type
column, select ‘‘Supporting & Related
Material.’’
SUMMARY:
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54371
If
you have questions on this rule, call or
email LCDR Sean Morrison, Waterways
Management Division, Marine Safety
Unit Portland, U.S. Coast Guard;
telephone 503–240–9319, email D13SMB-MSUPortlandWWM@uscg.mil.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
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
II. Background Information and
Regulatory History
On November 18, 2020, the Discovery
Clean Water Alliance notified the Coast
Guard that it would begin construction
on the Phase 5A Project: Columbia River
Outfall and Effluent Pipeline from 12:01
a.m. on October 1, 2021 through 11:59
p.m. on March 15, 2022, to remove and
replace existing pipeline. The
construction project includes the
removal and replacement of an existing
navigation marker (3-pile dolphin),
installation of a 48″ pipeline in the
riverbed outside the navigation channel,
and removal of an existing 30″ pipeline
from the riverbed. The scope of work
may include the need to construct
temporary pile-supported work
platforms, or dredge, to access shallow
water areas. Lighted barges will be used
in deeper water. The Captain of the Port
Sector Columbia River (COTP) has
determined that potential hazards
associated with the construction project
would be a safety concern for anyone
within the designated area of the
Columbia River Outfall and Effluent
Pipeline construction project. In
response, on August 28, 2021 the Coast
Guard published a notice of proposed
rulemaking (NPRM) titled Safety Zone;
Columbia River Outfall Project,
Columbia River, Vancouver, WA (86 FR
47611). There we stated why we issued
the NPRM, and invited comments on
our proposed regulatory action related
to this safety zone. During the comment
period that ended September 10, 2021
we received no comments.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. Delaying the effective date of
this rule would be impracticable
because immediate action is needed to
respond to the potential safety hazards
associated with the Columbia River
Outfall Projects.
E:\FR\FM\01OCR1.SGM
01OCR1
Agencies
[Federal Register Volume 86, Number 188 (Friday, October 1, 2021)]
[Rules and Regulations]
[Pages 54368-54371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21340]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 009-2021]
Privacy Act of 1974; Implementation
AGENCY: Office of Legal Policy, United States Department of Justice.
ACTION: Final rule.
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SUMMARY: The United States Department of Justice (DOJ or Department),
is finalizing with changes its Privacy Act exemption regulations for
the system of records titled, ``Judicial Nominations Files,'' JUSTICE/
OLP-002, which were published as a notice of proposed rulemaking (NPRM)
on July 23, 2021. Specifically, the Department's regulations will
exempt the records maintained in JUSTICE/OLP-002 from one or more
provisions of the Privacy Act.
DATES: This final rule is effective November 1, 2021.
FOR FURTHER INFORMATION CONTACT: Matrina Matthews, Executive Officer,
Office of Legal Policy, U.S. Department of Justice, 950 Pennsylvania
Avenue NW, Room 4234, Washington, DC 20530-0001; telephone: (202) 616-
0040; email: [email protected].
SUPPLEMENTARY INFORMATION:
Background
On July 14, 2021, the Office of Legal Policy (OLP) published in the
Federal Register a System of Records Notice (SORN) for an OLP system of
records titled, ``Judicial Nominations Files,'' JUSTICE/OLP-002. 86 FR
37192. On July 23, 2021, the Department published
[[Page 54369]]
a notice of proposed rulemaking (NPRM) proposing to exempt records
maintained in JUSTICE/OLP-002 from certain provisions of the Privacy
Act pursuant to 5 U.S.C. 552a(k), and inviting public comment on the
proposed exemptions. 86 FR 38955. The comment period was open through
August 13, 2021, for the SORN and through August 23, 2021, for the
NPRM. The Department received no comments on the proposed rule. After
providing the opportunity for public comment, exemptions necessary to
protect the ability of OLP to do its judicial nomination functions have
been codified in this final rule as proposed in the NPRM.
The exemptions are necessary because certain classified information
may be maintained in JUSTICE/OLP-002, including but not limited to,
records related to a potential nominee that maintained a previous or
current position with access to classified information and/or assigned
to a national security sensitive position. Moreover, given the law
enforcement information that may be discovered as part of the
nomination investigation and/or evaluations, certain investigatory
materials for law enforcement purposes may be maintained in this system
of records. In addition, investigatory material may also be used in
determining suitability, eligibility, or qualification decisions, and
such information may require exemption to the extent that the
disclosure of such material would reveal the identity of a source who
furnished information to the Department under an express promise that
the identity of the source would be held in confidence. Finally, the
Department also utilizes various examination materials to determine
individual qualifications for appointment, which if disclosed, could
compromise the objectivity or fairness of the Department's examination
and vetting process.
Response to Public Comments
In its Judicial Nominations Files SORN, published on July 14, 2021,
and its Judicial Nominations Files NPRM, published on July 23, 2021,
the Department invited public comment. The comment period for the SORN
closed on August 13, 2021, and the comment period for the NPRM closed
on August 23, 2021. The Department received no comments. Because no
comments were submitted, and because OLP continues to assert the
rationales in support of the exemptions as stated in the NPRM, the
Department adopts in this final rule the exemptions and rationales
proposed in the NPRM.
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b),
Principles of Regulation, and Executive Order 13563 ``Improving
Regulation and Regulatory Review'' section 1(b), General Principles of
Regulation.
The Department of Justice has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866, section
3(f), and accordingly this rule has not been reviewed by the Office of
Information and Regulatory Affairs within the Office of Management and
Budget pursuant to Executive Order 12866.
Regulatory Flexibility Act
This regulation will only impact Privacy Act-protected records,
which are personal and generally do not apply to an individual's
entrepreneurial capacity, subject to limited exceptions. Accordingly,
the Chief Privacy and Civil Liberties Officer, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
regulation and by approving it certifies that this regulation will not
have a significant economic impact on a substantial number of small
entities.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
drafting errors and ambiguity, minimize litigation, provide a clear
legal standard for affected conduct, and promote simplification and
burden reduction.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
This regulation will have no implications for Indian Tribal
governments. More specifically, it does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
Therefore, the consultation requirements of Executive Order 13175 do
not apply.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100,000,000, as adjusted for inflation, or more in any one year, and
it will not significantly or uniquely affect small governments.
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, 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. Revise Sec. 16.73 to read as follows:
Sec. 16.73 Exemption of Office of Legal Policy Systems.
(a) The Judicial Nominations Files (JUSTICE/OLP-002) system of
records is exempt from subsections (c)(3); (d); (e)(1), (e)(4)(G), (H),
and (I); and (f) of the Privacy Act, pursuant to 5 U.S.C. 552a(k)(1),
(k)(2), (k)(5), and (k)(6). The exemptions in this paragraph (a) apply
only to the extent that information in this system of records is
subject to an exemption, pursuant to 5 U.S.C. 552a(k). Where compliance
would not appear to
[[Page 54370]]
interfere with or adversely affect the Office of Legal Policy's (OLP's)
processes, OLP may waive the applicable exemption.
(b) Exemptions from the particular subsections in paragraph (a) of
this section are justified for the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be
made available to the named subject of a record, because release of
disclosure accountings could alert the subject of an investigation and/
or evaluation to the extent of an investigation and/or evaluation. Such
a disclosure could also reveal investigative interests by not only OLP,
but also other recipient agencies or components. Since release of such
information to the subjects of an investigation would provide them with
significant information concerning the nature of the investigation and/
or evaluation, 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, and other activities that
could impede or compromise the investigation and/or evaluation. 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 (d), the access and amendment provisions,
because many persons are contacted who, without an assurance of
anonymity, refuse to provide information concerning the subject of an
investigation and/or evaluation. Access could reveal the identity of
the source of the information and constitute a breach of the promised
confidentiality on the part of the Department. Such breaches ultimately
would restrict the free flow of information vital to the determination
of a candidate's qualifications and suitability, among other
determinations. The Department also relies on certain examination
materials to assess and evaluate an individual's qualifications for an
applicable position. Access and/or amendment to such material could
reveal information about the examination and vetting process and could
compromise its objectivity and/or fairness. Access and/or amendment to
such material could also inappropriately advantage future candidates
with knowledge of the examination materials. Finally, providing the
individual access or amendment rights could result in the release of
properly classified information which would compromise the national
defense or disrupt foreign policy.
(3) From subsection (e)(1), because in the collection of
information for investigative and evaluative purposes, it is impossible
to determine in advance what exact information may be of assistance in
determining the qualifications and suitability of the subject of an
investigation and/or evaluation. Information which may seem irrelevant,
when combined with other seemingly irrelevant information, can on
occasion provide a composite picture of a candidate which assists in
determining whether that candidate should be nominated for appointment.
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. In interviewing
individuals or obtaining other forms of information during OLP
processes, information may be supplied to OLP which relates to matters
incidental to the primary purpose of OLP's processes, but also relate
to matters under the investigative jurisdiction of another agency. Such
information cannot readily be segregated.
(4) From subsections (e)(4)(G) and (H), and subsection (f), because
this system is exempt from the access and amendment provisions of
subsection (d).
(c) The General Files System of the Office of Legal Policy
(JUSTICE/OLP-003) system of records is exempt from subsections
552a(c)(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H), and
(e)(5); and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2),
(k)(1), (k)(2) and (k)(5). The exemptions in this paragraph (c) apply
only to the extent that information in this system is subject to
exemption pursuant to 5 U.S.C. 552(j), (k). Where compliance would not
appear to interfere with or adversely affect OLP's processes, the
applicable exemption may be waived by OLP.
(d) Exemptions from the particular subsections in paragraph (c) of
this section are justified for the following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
would reveal investigative interest on the part of the Department as
well as the recipient agency. This would permit record subjects to
impede the investigation, e.g., destroy evidence, intimidate potential
witnesses, or flee the area to avoid inquiries or apprehension by law
enforcement personnel.
(2) From subsection (c)(4) because this system is exempt from the
access provisions of subsection (d) pursuant to subsections (j) and (k)
of the Privacy Act.
(3) From subsection (d) because the records contained in this
system relate to official Federal investigations. Individual access to
these records might compromise ongoing investigations, reveal
confidential informants, or constitute unwarranted invasions of the
personal privacy of third parties who are involved in a certain
investigation. Amendment of records would interfere with ongoing
criminal law enforcement proceedings and impose an impossible
administrative burden by requiring criminal investigations to be
continuously reinvestigated.
(4) From subsections (e)(1) and (5) because in the course of law
enforcement investigations, information may occasionally be obtained or
introduced the accuracy of which is unclear or which is not strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
since it may aid in establishing patterns of criminal activity.
Moreover, it would impede the specific investigation process if it were
necessary to assure the relevance, accuracy, timeliness and
completeness of all information obtained.
(5) From subsections (e)(2) because in a law enforcement
investigation the requirement that information be collected to the
greatest extent possible from the subject individual would present a
serious impediment to law enforcement in that the subject of the
investigation would be informed of the existence of the investigation
and would therefore be able to avoid detection, apprehension, or legal
obligations and duties.
(6) From subsection (e)(3) because to comply with the requirements
of this subsection during the course of an investigation could impede
the information gathering process, thus hampering the investigation.
(7) From subsections (e)(4)(G) and (H) because this system is
exempt from the access provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy Act.
(8) From subsection (g) because this system is exempt from the
access and amendment provisions of subsection (d) pursuant to
subsections (j) and (k) of the Privacy Act.
[[Page 54371]]
Dated: September 23, 2021.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2021-21340 Filed 9-30-21; 8:45 am]
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