Privacy Act of 1974; Implementation, 33013-33016 [2023-10525]
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Federal Register / Vol. 88, No. 99 / Tuesday, May 23, 2023 / Proposed Rules
and legal basis for the request and must
identify the specific portions of the
comments to be withheld from the
public record.16 Your comment will be
kept confidential only if the General
Counsel grants your request in
accordance with the law and the public
interest. Once your comment has been
posted on the https://
www.regulations.gov website, we cannot
redact or remove your comment, unless
you submit a confidentiality request that
meets the requirements for such
treatment under FTC Rule 4.9(c), and
the General Counsel grants that request.
Requests to participate as a panelist at
the workshop should be submitted
electronically to funeralrule@ftc.gov, or,
if mailed, should be submitted in the
manner detailed below. For the
Commission to consider your request to
participate as a panelist, we must
receive it by June 19, 2023. Parties are
asked to include in their requests a brief
statement setting forth their expertise in
or knowledge of the issues on which the
workshop will focus, as well as their
contact information, including a
telephone number and email address (if
available), to enable FTC staff to notify
them if they are selected.
If you file request to participate on
paper, write ‘‘Funeral Rule Workshop,
Project No. P034410’’ on your request to
participate, and on the envelope, and
mail your request to participate to the
Federal Trade Commission, Office of the
Secretary, 600 Pennsylvania Avenue
NW, Suite CC–5610 (Annex F),
Washington, DC 20580. If possible,
submit your request to participate to the
Commission by overnight service.
Visit the Commission website at
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document and the news release
describing it. The FTC Act and other
laws the Commission administers
permit the collection of public
comments to consider and use in this
proceeding as appropriate. The
Commission will consider all timely
and responsive public comments it
receives on or before October 10, 2023.
The Commission will consider all
timely requests to participate as a
panelist in the workshop it receives by
June 19, 2023. For information on the
Commission’s privacy policy, including
routine uses permitted by the Privacy
Act, see https://www.ftc.gov/siteinformation/privacy-policy.
By direction of the Commission.
April J. Tabor,
Secretary.
[FR Doc. 2023–10815 Filed 5–22–23; 8:45 am]
BILLING CODE 6750–01–P
16 See
16 CFR 4.9(c).
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 002–2023]
Privacy Act of 1974; Implementation
Office of Privacy and Civil
Liberties, United States Department of
Justice.
ACTION: Notice of proposed rulemaking.
AGENCY:
In the notice section of
today’s Federal Register, the Office of
Privacy and Civil Liberties (hereinafter
OPCL), a component within the United
States Department of Justice (DOJ or
Department), has published a notice of
a new system of records, Data Protection
Review Court Records System,
JUSTICE/OPCL–001. In this notice of
proposed rulemaking, the OPCL
proposes to exempt this system of
records from certain provisions of the
Privacy Act to protect national security
and law enforcement sensitive
information, preserve judicial
independence, and ensure the integrity
of adjudicatory records in cases before
the Data Protection Review Court
(‘‘DPRC’’). For the reasons provided
below, the Department proposes to
amend its Privacy Act regulations by
establishing an exemption for records in
this system from certain provisions of
the Privacy Act. Public comment is
invited.
SUMMARY:
Comments must be received by
June 22, 2023.
ADDRESSES: You may send comments by
any of the following methods:
• Email: privacy.compliance@
usdoj.gov. To ensure proper handling,
please reference the CPCLO Order No.
in the subject line of the message.
• Fax: 202–307–0693.
• Mail: United States Department of
Justice, Office of Privacy and Civil
Liberties, ATTN: Privacy Analyst, 145 N
St. NE, 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.
• Federal eRulemaking Portal:
https://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 Time on the day the comment
period closes because https://
www.regulations.gov terminates the
public’s ability to submit comments at
that time. Commenters in time zones
DATES:
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33013
other than Eastern Time may want to
consider this so that their electronic
comments are received.
Posting of Public Comments: Please
note that all comments received are
considered part of the public record and
made available for public inspection
online at https://www.regulations.gov
and in the Department’s public docket.
Such information includes personally
identifying information (such as your
name, address, etc.) voluntarily
submitted by the commenter. If you
want to submit personal identifying
information (such as your name,
address, etc.) as part of your comment,
but do not want it to be posted online
or made available in the public docket,
you must include the phrase
‘‘PERSONALLY IDENTIFIABLE
INFORMATION’’ in the first paragraph
of your comment. You must also place
all personally identifiable information
that you do not want posted online or
made available in the public docket in
the first paragraph of your comment and
identify what information you want
redacted.
If you want to submit confidential
business information as part of your
comment, but do not want it to be
posted online or made available in the
public docket, you must include the
phrase ‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You must also
prominently identify confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, all or part of that comment
may not be posted online or made
available in the public docket.
Personally identifiable information
and confidential business information
identified and located as set forth above
will be redacted and the comment, in
redacted form, may be posted online
and placed in the Department’s public
docket file. Please note that the Freedom
of Information Act applies to all
comments received. If you wish to
inspect the agency’s public docket file
in person by appointment, please see
the FOR FURTHER INFORMATION CONTACT
section.
FOR FURTHER INFORMATION CONTACT:
Katherine Harman-Stokes, Director
(Acting), Office of Privacy and Civil
Liberties, U.S. Department of Justice,
Two Constitution Square, 145 N St. NE,
Suite 8W–300, Washington, DC 20530;
email: privacy.compliance@usdoj.gov;
telephone: (202) 514–0208; facsimile:
(202) 307–0693.
SUPPLEMENTARY INFORMATION:
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I. Background
In accordance with the Privacy Act of
1974, OPCL is establishing a new
system of records, Data Protection
Review Court Records System,
JUSTICE/OPCL–001, to maintain an
accurate record of the Data Protection
Review Court (DPRC) review of
determinations made by the Civil
Liberties Protection Officer of the Office
of the Director of National Intelligence
(ODNI CLPO) in response to complaints
that allege certain violations of United
States law in the conduct of United
States signals intelligence activities.
On October 7, 2022, the President of
the United States issued Executive
Order (E.O.) 14086, Enhancing
Safeguards for United States Signals
Intelligence Activities, 87 FR 62283
(Oct. 14, 2022), which directed the
Attorney General to establish the Data
Protection Review Court (DPRC) as the
second level of a two-level redress
mechanism for alleged violations of law
regarding signals intelligence activities.
The Attorney General issued the
regulation on October 7, 2022, now at 28
CFR 201, ‘‘Data Protection Review
Court.’’ 87 FR 628303 (Oct. 14, 2022).
The first level of the new redress
mechanism established by E.O. 14086 is
the investigation, review, and
determination by the ODNI CLPO of
whether a covered violation occurred
and, where necessary, the appropriate
remediation in response to a complaint.
The complainant or an element of the
Intelligence Community may seek
review by the DPRC of the ODNI CLPO’s
determination.
Exercising the Attorney General’s
authority under 28 U.S.C. 511 and 512
to provide his advice and opinion on
questions of law and the authority
delegated to the Attorney General under
E.O. 14086, the DPRC will review
whether the ODNI CLPO’s
determination regarding the occurrence
of a covered violation was legally
correct and supported by substantial
evidence and whether, in the event of a
covered violation, the ODNI CLPO’s
determination as to the appropriate
remediation was consistent with E.O.
14086.
The regulations require the DPRC, and
OPCL in support of the DPRC, to
maintain all records relating to the
DPRC’s review. For each application for
review, OPCL shall maintain records of
the information reviewed or created by
the DPRC and the decision of the DPRC
panel, which records shall be made
available for consideration as nonbinding precedent to future DPRC
panels considering applications for
review. 28 CFR 201.9(j), see also 28 CFR
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201.5, et seq. Records of the DPRC’s
review will include material created by
the complainant, the public authority of
a designated state, ODNI CLPO,
elements of the Intelligence Community,
DPRC Judges and Special Advocates,
and Department of Justice personnel.
Most of the information in this system
consists of records that are classified,
including the record of review received
from the ODNI CLPO.
Pursuant to 28 CFR 201.9(i), certain
classified information in the system
indicating a violation of any authority
subject to the oversight of the Foreign
Intelligence Surveillance Court (‘‘FISC’’)
will be shared with the Assistant
Attorney General for National Security,
who shall report violations to the FISC
as required by law and in accordance
with its rules of procedure. Similarly,
information in the system will be
provided to the Privacy and Civil
Liberties Oversight Board (‘‘PCLOB’’) as
necessary to conduct the annual review
of the redress process described in
Section 3(e) of E.O. 14086, consistent
with the protection of intelligence
sources and methods.
II. Privacy Act Exemption
The Privacy Act allows Federal
agencies to exempt eligible records in a
system of records from certain
provisions of the Act, including those
that provide individuals with a right to
request access to and amendment of
records about the individual. If an
agency intends to exempt a particular
system of records, it must first issue a
rulemaking pursuant to 5 U.S.C.
553(b)(1)–(3), (c), and (e). This proposed
rule explains why an exemption is being
claimed for this system of records and
invites public comment, which the
Department will consider before the
issuance of a final rule implementing
the exemptions.
The Department proposes to modify
28 CFR part 16 to add a new Privacy Act
exemption for the new system of
records, Data Protection Review Court
Records System, JUSTICE/OPCL–001.
The Department proposes this
exemption because most of the records
in this system will contain classified
national security information, and as a
result, notice, access, amendment, and
disclosure (to include accounting for
those records) to an individual, as well
as certain record-keeping requirements,
may cause damage to national security.
The Privacy Act, pursuant to 5 U.S.C.
552a(k)(1), authorizes agencies to claim
an exemption for systems of records that
contain information properly classified
pursuant to applicable law. The
Department is proposing to claim an
exemption from several provisions of
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the Privacy Act, including various
access, amendment, disclosure of
accounting, and certain record-keeping
and notice requirements pursuant to 5
U.S.C. 552a(k)(1), to prevent disclosure
of any information properly classified
pursuant to applicable law.
The Department also proposes to
exempt this system of records because
these records relate to criminal law
enforcement activities, and certain
requirements of the Privacy Act may
interfere with the effective execution of
these activities and undermine good
order and discipline. The Privacy Act,
pursuant to 5 U.S.C. 552a(j)(2),
authorizes agencies with a principal law
enforcement function pertaining to the
enforcement of criminal laws (including
activities of prosecutors, courts, etc.) to
claim an exemption for systems of
records that contain information
identifying criminal offenders and
alleged offenders, information compiled
for the purpose of criminal
investigation, or reports compiled for
the purpose of criminal law
enforcement proceedings. Additionally,
pursuant to 5 U.S.C. 552a(k)(2), agencies
may exempt a system of records from
certain provisions of the Privacy Act if
it contains investigatory material
compiled for law enforcement purposes,
other than materials within the scope of
5 U.S.C. 552a(j)(2). The Department is
proposing to claim exemptions from
several provisions of the Privacy Act,
pursuant to 5 U.S.C. 552a(j)(2) and
552a(k)(2), to prevent the harms
articulated in this rule from occurring.
Records in this system of records are
only exempt from the Privacy Act to the
extent the purposes underlying the
exemption pertain to the record. A
notice of a new system of records, Data
Protection Review Court Records
System, JUSTICE/OPCL–001, is
published in this issue of the Federal
Register.
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 rulemaking proposes to
exempt this system of records from
certain provisions of the Privacy Act to
protect national security and law
enforcement sensitive information,
preserve judicial independence and to
ensure the integrity of adjudicatory
records in cases before the Data
Protection Review Court (‘‘DPRC’’). This
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proposed rule is not a ‘‘significant’’
regulatory action under section 3(f) of
E.O. 12866. Accordingly, the rule has
not been reviewed by the Office of
Management and Budget (OMB) under
E.O. 12866. OPCL anticipates no costs
or benefits accruing from this proposal.
Regulatory Flexibility Act
This proposed rule will impact
records related to or reviewed in
handling complaints in accordance with
E.O. 14086 and DOJ regulation, 28 CFR
201, which are personal and generally
do not apply to an individual’s
entrepreneurial capacity, subject to
limited exceptions. Even though this
system will contain records that are not
covered by the Privacy Act, the Chief
Privacy and Civil Liberties Officer has
nevertheless reviewed this regulation in
accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), and by
approving it certifies that this regulation
will not have a significant economic
impact on a substantial number of small
entities.
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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. 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
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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
§ 16.139 Exemption of the Department of
Justice Data Protection Review Court
Records System, JUSTICE/OPCL–001.
This proposed rule will have no
implications for Indian Tribal
governments. More specifically, it does
not have substantial direct effects on
one or more Indian tribes, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes.
Therefore, the consultation
requirements of Executive Order 13175
do not apply.
Unfunded Mandates Reform Act of
1995
This proposed rule will not result in
the expenditure by State, local and
tribal governments, in the aggregate, or
by the private sector, of $100,000,000, as
adjusted for inflation, or more in any
one year, and it will not significantly or
uniquely affect small governments.
Therefore, no actions were deemed
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995.
Paperwork Reduction Act
The Paperwork Reduction Act of
1995, 44 U.S.C. 3507(d), requires the
Department to consider the impact of
paperwork and other information
collection burdens imposed on the
public. There are no current or new
information collection requirements
associated with this proposed rule.
List of Subjects in 28 CFR Part 16
Administrative Practices and
Procedures, Courts, Freedom of
Information, and the Privacy Act.
Pursuant to the authority vested in the
Attorney General by 5 U.S.C. 552a and
delegated to me by Attorney General
Order 2940–2008, the Department of
Justice proposes to amend 28 CFR part
16 as follows:
PART 16—PRODUCTION OR
DISCLOSURE OF MATERIAL OR
INFORMATION
1. The authority citation for part 16
continues to read as follows:
■
Authority: 5 U.S.C. 301, 552, 552a, 553;
28 U.S.C. 509, 510, 534; 31 U.S.C. 3717.
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2. Add § 16.139 to subpart E to read
as follows:
■
(a) The Department of Justice Data
Protection Review Court system of
records JUSTICE/OPCL–001 is
exempted from subsections 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3) and (4);
(e)(1), (2) and (3); (e)(4)(G), (H) and (I);
(e)(5) and (8); (f) 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) or (k). Where DOJ
determines that compliance would not
appear to interfere with or adversely
affect the purpose of this system to
address certain violations of United
States law in the conduct of United
States signals intelligence activities, and
not interfere with national security or
law enforcement operations, the
applicable exemption may be waived by
the DOJ in its sole discretion.
(b) Exemptions from the particular
subsections are justified for the
following reasons:
(1) From the subsection (c)(3)
(accounting of disclosures) 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). Where the
individual is the subject of intelligence
activities, to provide that individual
with the disclosure accounting records
would hinder authorized United States
intelligence activities by informing that
individual of the existence, nature, or
scope of information that is properly
classified pursuant to Executive Order
12958, as amended, and thereby cause
damage to the national security.
Revealing this information would also
be contrary to Executive Order 14086
and could compromise ongoing,
authorized law enforcement and
intelligence efforts, particularly efforts
to identify and/or mitigate national
security threats.
(2) From subsection (c)(4) (notice of
amendment to record recipients)
notification requirements because this
system is exempt from the access and
amendment provisions of subsection (d)
as well as the provision for making the
accounting of disclosures available to an
individual in 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
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records, it will share that information in
appropriate cases.
(3) From subsection (d)(1), (2), (3) and
(4) (record subject’s right to access and
amend records), (e)(4)(G) and (H)
(publication of procedures for notifying
subjects of the existence of records
about them and how they may access
records and contest contents), (e)(8)
(notice of compelled disclosures), (f)
(agency rules for notifying subjects to
the existence of records about them, for
accessing and amending records, and for
assessing fees) and (g) (civil remedies)
because these provisions concern
individual access to and amendment of
records containing national security,
law enforcement, intelligence,
counterintelligence and
counterterrorism sensitive information
that could alert the subject of an
authorized law enforcement or
intelligence activity about that
particular activity and the interest of the
DOJ and/or other law enforcement or
intelligence agencies in the subject.
Providing access could compromise
information classified to protect
national security; disclose information
that would constitute an unwarranted
invasion of another’s personal privacy;
reveal a sensitive investigative or
intelligence technique; provide
information that would allow a subject
to avoid detection or apprehension; or
constitute a potential danger to the
health or safety of law enforcement
personnel, confidential sources,
witnesses, or other individuals.
Nevertheless, DOJ has published notice
concerning notification, access, and
contest procedures because it may in
certain circumstances determine it
appropriate to provide subjects access to
all or a portion of the records about
them in a system of records, particularly
if information pertaining to the
individual has been declassified.
(4) From subsection (e)(1) (maintain
only relevant and necessary records)
because the DPRC in the course of
receiving information pursuant to an
application for review, including the
ODNI CLPO’s record of review, may
receive records that are ultimately
deemed irrelevant or unnecessary for
the adjudication of the matter.
Relevance and necessity are questions of
judgment and timing; what appears
relevant and necessary when collected
ultimately may be deemed unnecessary.
It is only after the information is
assessed that its relevancy and necessity
can be established. Even if the records
received are ultimately determined to be
irrelevant or unnecessary to the
adjudication of an application for
review, the OPCL generally must
nevertheless retain such records to
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maintain an accurate and complete
record of the information reviewed by
the DPRC.
(5) From subsection (e)(2) (collection
directly from the individual) and (3)
(provide Privacy Act Statement to
subjects furnishing information). The
DPRC will rely on records received from
the ODNI CLPO, including records that
the ODNI CLPO received from other
elements of the Intelligence Community.
The collection efforts of agencies that
supply information ultimately received
by the DPRC would be thwarted if the
agencies were required to collect
information with the subject’s
knowledge. Application of these
provisions would put the subject of
United States signals intelligence
activities on notice of the signals
intelligence activities and allow the
subject an opportunity to engage in
conduct intended to impede the
investigative activity or avoid
apprehension.
(6) From subsection (e)(4)(I)
(identifying sources of records in the
system of records), 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 disclosure of properly classified
national security and law enforcement
sensitive information. Further, greater
specificity of sources of properly
classified records could compromise
national security.
(7) From subsection (e)(5) (maintain
timely, accurate, complete and up-todate records) because many of the
records in the system were derived from
other domestic and foreign agency
record systems over which DOJ
exercises no control. It is often
impossible to determine in advance if
intelligence records contained in this
system are accurate, relevant, timely
and complete, but in the interest of
maintaining a complete record of the
information reviewed by the DPRC in
each case, it is necessary to retain this
information. The restrictions imposed
by paragraphs (e)(5) would impede
development of the record for review
and limit the DPRC’s ability to exercise
independent judgment in the
adjudication of applications for review.
(8) Continue in effect and assert all
exemptions claimed under 5 U.S.C.
552a(j) or (k) by an originating agency
from which DOJ obtains records where
the purposes underlying the original
exemption remain valid and necessary
to protect the contents of the record.
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Dated: May 10, 2023.
Peter Winn,
Chief Privacy and Civil Liberties Officer
(Acting), United States Department of Justice.
[FR Doc. 2023–10525 Filed 5–22–23; 8:45 am]
BILLING CODE 4410–PJ–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 917
[SATS No. KY–264–FOR; Docket ID: OSM–
2022–0008; S1D1S SS08011000 SX064A000
234S180110; S2D2S SS08011000
SX064A000 23XS501520
Kentucky Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment
period and opportunity for public
hearing on proposed amendment.
AGENCY:
We, the Office of Surface
Mining Reclamation and Enforcement
(OSMRE), are announcing receipt of a
proposed amendment to the Kentucky
regulatory program (hereinafter, the
Kentucky program), under the Surface
Mining Control and Reclamation Act of
1977 (SMCRA or the Act). Kentucky
proposes to revise their regulations
regarding the qualifications of members
of the Reclamation Guaranty Fund
Commission. This document gives the
times and locations that the Kentucky
program and this proposed amendment
to that program are available for your
inspection, the comment period during
which you may submit written
comments on the amendment, and the
procedures that we will follow for the
public hearing, if one is requested.
DATES: We will accept written
comments on this amendment until 4
p.m., Eastern Daylight Time (EDT), June
22, 2023. If requested, we may hold a
public hearing or meeting on the
amendment on June 20, 2023. We will
accept requests to speak at a hearing
until 4 p.m., EDT on June 7, 2023.
ADDRESSES: You may submit comments,
identified by SATS No. KY–264–FOR,
by any of the following methods:
• Mail/Hand Delivery: Mr. Michael
Castle, Field Office Director, Lexington
Field Office, Office of Surface Mining
Reclamation and Enforcement, 2675
Regency Road, Lexington, KY 40503.
• Fax: (859) 260–8410.
• Federal eRulemaking Portal: The
amendment has been assigned Docket
ID OSM–2022–0008. If you would like
to submit comments, go to https://
SUMMARY:
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Agencies
[Federal Register Volume 88, Number 99 (Tuesday, May 23, 2023)]
[Proposed Rules]
[Pages 33013-33016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10525]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 002-2023]
Privacy Act of 1974; Implementation
AGENCY: Office of Privacy and Civil Liberties, United States Department
of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In the notice section of today's Federal Register, the Office
of Privacy and Civil Liberties (hereinafter OPCL), a component within
the United States Department of Justice (DOJ or Department), has
published a notice of a new system of records, Data Protection Review
Court Records System, JUSTICE/OPCL-001. In this notice of proposed
rulemaking, the OPCL proposes to exempt this system of records from
certain provisions of the Privacy Act to protect national security and
law enforcement sensitive information, preserve judicial independence,
and ensure the integrity of adjudicatory records in cases before the
Data Protection Review Court (``DPRC''). For the reasons provided
below, the Department proposes to amend its Privacy Act regulations by
establishing an exemption for records in this system from certain
provisions of the Privacy Act. Public comment is invited.
DATES: Comments must be received by June 22, 2023.
ADDRESSES: You may send comments by any of the following methods:
Email: [email protected]. To ensure proper
handling, please reference the CPCLO Order No. in the subject line of
the message.
Fax: 202-307-0693.
Mail: United States Department of Justice, Office of
Privacy and Civil Liberties, ATTN: Privacy Analyst, 145 N St. NE,
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.
Federal eRulemaking Portal: https://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 Time on the day the comment period closes because https://www.regulations.gov terminates the public's ability to submit comments
at that time. Commenters in time zones other than Eastern Time may want
to consider this so that their electronic comments are received.
Posting of Public Comments: Please note that all comments received
are considered part of the public record and made available for public
inspection online at https://www.regulations.gov and in the
Department's public docket. Such information includes personally
identifying information (such as your name, address, etc.) voluntarily
submitted by the commenter. If you want to submit personal identifying
information (such as your name, address, etc.) as part of your comment,
but do not want it to be posted online or made available in the public
docket, you must include the phrase ``PERSONALLY IDENTIFIABLE
INFORMATION'' in the first paragraph of your comment. You must also
place all personally identifiable information that you do not want
posted online or made available in the public docket in the first
paragraph of your comment and identify what information you want
redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information to be
redacted within the comment. If a comment has so much confidential
business information that it cannot be effectively redacted, all or
part of that comment may not be posted online or made available in the
public docket.
Personally identifiable information and confidential business
information identified and located as set forth above will be redacted
and the comment, in redacted form, may be posted online and placed in
the Department's public docket file. Please note that the Freedom of
Information Act applies to all comments received. If you wish to
inspect the agency's public docket file in person by appointment,
please see the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Katherine Harman-Stokes, Director
(Acting), Office of Privacy and Civil Liberties, U.S. Department of
Justice, Two Constitution Square, 145 N St. NE, Suite 8W-300,
Washington, DC 20530; email: [email protected]; telephone:
(202) 514-0208; facsimile: (202) 307-0693.
SUPPLEMENTARY INFORMATION:
[[Page 33014]]
I. Background
In accordance with the Privacy Act of 1974, OPCL is establishing a
new system of records, Data Protection Review Court Records System,
JUSTICE/OPCL-001, to maintain an accurate record of the Data Protection
Review Court (DPRC) review of determinations made by the Civil
Liberties Protection Officer of the Office of the Director of National
Intelligence (ODNI CLPO) in response to complaints that allege certain
violations of United States law in the conduct of United States signals
intelligence activities.
On October 7, 2022, the President of the United States issued
Executive Order (E.O.) 14086, Enhancing Safeguards for United States
Signals Intelligence Activities, 87 FR 62283 (Oct. 14, 2022), which
directed the Attorney General to establish the Data Protection Review
Court (DPRC) as the second level of a two-level redress mechanism for
alleged violations of law regarding signals intelligence activities.
The Attorney General issued the regulation on October 7, 2022, now at
28 CFR 201, ``Data Protection Review Court.'' 87 FR 628303 (Oct. 14,
2022).
The first level of the new redress mechanism established by E.O.
14086 is the investigation, review, and determination by the ODNI CLPO
of whether a covered violation occurred and, where necessary, the
appropriate remediation in response to a complaint. The complainant or
an element of the Intelligence Community may seek review by the DPRC of
the ODNI CLPO's determination.
Exercising the Attorney General's authority under 28 U.S.C. 511 and
512 to provide his advice and opinion on questions of law and the
authority delegated to the Attorney General under E.O. 14086, the DPRC
will review whether the ODNI CLPO's determination regarding the
occurrence of a covered violation was legally correct and supported by
substantial evidence and whether, in the event of a covered violation,
the ODNI CLPO's determination as to the appropriate remediation was
consistent with E.O. 14086.
The regulations require the DPRC, and OPCL in support of the DPRC,
to maintain all records relating to the DPRC's review. For each
application for review, OPCL shall maintain records of the information
reviewed or created by the DPRC and the decision of the DPRC panel,
which records shall be made available for consideration as non-binding
precedent to future DPRC panels considering applications for review. 28
CFR 201.9(j), see also 28 CFR 201.5, et seq. Records of the DPRC's
review will include material created by the complainant, the public
authority of a designated state, ODNI CLPO, elements of the
Intelligence Community, DPRC Judges and Special Advocates, and
Department of Justice personnel. Most of the information in this system
consists of records that are classified, including the record of review
received from the ODNI CLPO.
Pursuant to 28 CFR 201.9(i), certain classified information in the
system indicating a violation of any authority subject to the oversight
of the Foreign Intelligence Surveillance Court (``FISC'') will be
shared with the Assistant Attorney General for National Security, who
shall report violations to the FISC as required by law and in
accordance with its rules of procedure. Similarly, information in the
system will be provided to the Privacy and Civil Liberties Oversight
Board (``PCLOB'') as necessary to conduct the annual review of the
redress process described in Section 3(e) of E.O. 14086, consistent
with the protection of intelligence sources and methods.
II. Privacy Act Exemption
The Privacy Act allows Federal agencies to exempt eligible records
in a system of records from certain provisions of the Act, including
those that provide individuals with a right to request access to and
amendment of records about the individual. If an agency intends to
exempt a particular system of records, it must first issue a rulemaking
pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e). This proposed rule
explains why an exemption is being claimed for this system of records
and invites public comment, which the Department will consider before
the issuance of a final rule implementing the exemptions.
The Department proposes to modify 28 CFR part 16 to add a new
Privacy Act exemption for the new system of records, Data Protection
Review Court Records System, JUSTICE/OPCL-001. The Department proposes
this exemption because most of the records in this system will contain
classified national security information, and as a result, notice,
access, amendment, and disclosure (to include accounting for those
records) to an individual, as well as certain record-keeping
requirements, may cause damage to national security. The Privacy Act,
pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to claim an
exemption for systems of records that contain information properly
classified pursuant to applicable law. The Department is proposing to
claim an exemption from several provisions of the Privacy Act,
including various access, amendment, disclosure of accounting, and
certain record-keeping and notice requirements pursuant to 5 U.S.C.
552a(k)(1), to prevent disclosure of any information properly
classified pursuant to applicable law.
The Department also proposes to exempt this system of records
because these records relate to criminal law enforcement activities,
and certain requirements of the Privacy Act may interfere with the
effective execution of these activities and undermine good order and
discipline. The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2),
authorizes agencies with a principal law enforcement function
pertaining to the enforcement of criminal laws (including activities of
prosecutors, courts, etc.) to claim an exemption for systems of records
that contain information identifying criminal offenders and alleged
offenders, information compiled for the purpose of criminal
investigation, or reports compiled for the purpose of criminal law
enforcement proceedings. Additionally, pursuant to 5 U.S.C. 552a(k)(2),
agencies may exempt a system of records from certain provisions of the
Privacy Act if it contains investigatory material compiled for law
enforcement purposes, other than materials within the scope of 5 U.S.C.
552a(j)(2). The Department is proposing to claim exemptions from
several provisions of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2)
and 552a(k)(2), to prevent the harms articulated in this rule from
occurring. Records in this system of records are only exempt from the
Privacy Act to the extent the purposes underlying the exemption pertain
to the record. A notice of a new system of records, Data Protection
Review Court Records System, JUSTICE/OPCL-001, is published in this
issue of the Federal Register.
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 rulemaking proposes to exempt this
system of records from certain provisions of the Privacy Act to protect
national security and law enforcement sensitive information, preserve
judicial independence and to ensure the integrity of adjudicatory
records in cases before the Data Protection Review Court (``DPRC'').
This
[[Page 33015]]
proposed rule is not a ``significant'' regulatory action under section
3(f) of E.O. 12866. Accordingly, the rule has not been reviewed by the
Office of Management and Budget (OMB) under E.O. 12866. OPCL
anticipates no costs or benefits accruing from this proposal.
Regulatory Flexibility Act
This proposed rule will impact records related to or reviewed in
handling complaints in accordance with E.O. 14086 and DOJ regulation,
28 CFR 201, which are personal and generally do not apply to an
individual's entrepreneurial capacity, subject to limited exceptions.
Even though this system will contain records that are not covered by
the Privacy Act, the Chief Privacy and Civil Liberties Officer has
nevertheless reviewed this regulation in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), 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. 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. Add Sec. 16.139 to subpart E to read as follows:
Sec. 16.139 Exemption of the Department of Justice Data Protection
Review Court Records System, JUSTICE/OPCL-001.
(a) The Department of Justice Data Protection Review Court system
of records JUSTICE/OPCL-001 is exempted from subsections 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2) and (3);
(e)(4)(G), (H) and (I); (e)(5) and (8); (f) 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) or (k).
Where DOJ determines that compliance would not appear to interfere with
or adversely affect the purpose of this system to address certain
violations of United States law in the conduct of United States signals
intelligence activities, and not interfere with national security or
law enforcement operations, the applicable exemption may be waived by
the DOJ in its sole discretion.
(b) Exemptions from the particular subsections are justified for
the following reasons:
(1) From the subsection (c)(3) (accounting of disclosures)
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). Where the individual is the subject of intelligence
activities, to provide that individual with the disclosure accounting
records would hinder authorized United States intelligence activities
by informing that individual of the existence, nature, or scope of
information that is properly classified pursuant to Executive Order
12958, as amended, and thereby cause damage to the national security.
Revealing this information would also be contrary to Executive Order
14086 and could compromise ongoing, authorized law enforcement and
intelligence efforts, particularly efforts to identify and/or mitigate
national security threats.
(2) From subsection (c)(4) (notice of amendment to record
recipients) notification requirements because this system is exempt
from the access and amendment provisions of subsection (d) as well as
the provision for making the accounting of disclosures available to an
individual in 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
[[Page 33016]]
records, it will share that information in appropriate cases.
(3) From subsection (d)(1), (2), (3) and (4) (record subject's
right to access and amend records), (e)(4)(G) and (H) (publication of
procedures for notifying subjects of the existence of records about
them and how they may access records and contest contents), (e)(8)
(notice of compelled disclosures), (f) (agency rules for notifying
subjects to the existence of records about them, for accessing and
amending records, and for assessing fees) and (g) (civil remedies)
because these provisions concern individual access to and amendment of
records containing national security, law enforcement, intelligence,
counterintelligence and counterterrorism sensitive information that
could alert the subject of an authorized law enforcement or
intelligence activity about that particular activity and the interest
of the DOJ and/or other law enforcement or intelligence agencies in the
subject. Providing access could compromise information classified to
protect national security; disclose information that would constitute
an unwarranted invasion of another's personal privacy; reveal a
sensitive investigative or intelligence technique; provide information
that would allow a subject to avoid detection or apprehension; or
constitute a potential danger to the health or safety of law
enforcement personnel, confidential sources, witnesses, or other
individuals. Nevertheless, DOJ has published notice concerning
notification, access, and contest procedures because it may in certain
circumstances determine it appropriate to provide subjects access to
all or a portion of the records about them in a system of records,
particularly if information pertaining to the individual has been
declassified.
(4) From subsection (e)(1) (maintain only relevant and necessary
records) because the DPRC in the course of receiving information
pursuant to an application for review, including the ODNI CLPO's record
of review, may receive records that are ultimately deemed irrelevant or
unnecessary for the adjudication of the matter. Relevance and necessity
are questions of judgment and timing; what appears relevant and
necessary when collected ultimately may be deemed unnecessary. It is
only after the information is assessed that its relevancy and necessity
can be established. Even if the records received are ultimately
determined to be irrelevant or unnecessary to the adjudication of an
application for review, the OPCL generally must nevertheless retain
such records to maintain an accurate and complete record of the
information reviewed by the DPRC.
(5) From subsection (e)(2) (collection directly from the
individual) and (3) (provide Privacy Act Statement to subjects
furnishing information). The DPRC will rely on records received from
the ODNI CLPO, including records that the ODNI CLPO received from other
elements of the Intelligence Community. The collection efforts of
agencies that supply information ultimately received by the DPRC would
be thwarted if the agencies were required to collect information with
the subject's knowledge. Application of these provisions would put the
subject of United States signals intelligence activities on notice of
the signals intelligence activities and allow the subject an
opportunity to engage in conduct intended to impede the investigative
activity or avoid apprehension.
(6) From subsection (e)(4)(I) (identifying sources of records in
the system of records), 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 disclosure of properly classified national
security and law enforcement sensitive information. Further, greater
specificity of sources of properly classified records could compromise
national security.
(7) From subsection (e)(5) (maintain timely, accurate, complete and
up-to-date records) because many of the records in the system were
derived from other domestic and foreign agency record systems over
which DOJ exercises no control. It is often impossible to determine in
advance if intelligence records contained in this system are accurate,
relevant, timely and complete, but in the interest of maintaining a
complete record of the information reviewed by the DPRC in each case,
it is necessary to retain this information. The restrictions imposed by
paragraphs (e)(5) would impede development of the record for review and
limit the DPRC's ability to exercise independent judgment in the
adjudication of applications for review.
(8) Continue in effect and assert all exemptions claimed under 5
U.S.C. 552a(j) or (k) by an originating agency from which DOJ obtains
records where the purposes underlying the original exemption remain
valid and necessary to protect the contents of the record.
Dated: May 10, 2023.
Peter Winn,
Chief Privacy and Civil Liberties Officer (Acting), United States
Department of Justice.
[FR Doc. 2023-10525 Filed 5-22-23; 8:45 am]
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