[Federal Register: June 26, 2006 (Volume 71, Number 122)]
[Proposed Rules]
[Page 36294-36295]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jn06-26]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
28 CFR Part 16
[AAG/A Order No. 010-2006]
Privacy Act of 1974: Implementation
AGENCY: Drug Enforcement Administration, DOJ.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice (DOJ), Drug Enforcement
Administration (DEA), proposes to exempt a new system of records
entitled the El Paso Intelligence Center (EPIC) Seizure System (ESS)
(JUSTICE/DEA-022) from subsections (c)(3) and (4); (d)(1), (2), (3),
and (4); (e)(1), (2), (3), (5), and (8); and (g) of the Privacy Act of
1974 pursuant to 5 U.S.C. 552a(j) and (k). The exemption is necessary
to avoid interference with the law enforcement, intelligence, counter-
drug, counterterrorism functions and responsibilities of the DEA and
its El Paso Intelligence Center (EPIC). Public comment is invited.
DATES: Comments must be received by August 7, 2006.
ADDRESSES: Address all comments to Mary E. Cahill, Management Analyst,
Management and Planning Staff, Justice Management Division, Department
of Justice, Washington, DC 20530 (Room 1400, National Place Building),
Facsimile Number (202) 307-1853. To ensure proper handling, please
reference the AAG/A Order No. on your correspondence. You may review an
electronic version of this proposed rule at http://www.regulations.gov.
You may also comment via the Internet to the DOJ/Justice Management
Division at the following e-mail address: DOJPrivacyACTProposed
Regulations@usdoj.gov; or by using the http://www.regulations.gov
comment form for this regulation. When submitting comments
electronically, you must include the AAG/A Order No. in the subject
box.
FOR FURTHER INFORMATION CONTACT: Mary E. Cahill, (202) 307-1823.
SUPPLEMENTARY INFORMATION: In the notice section of today's Federal
Register, the DEA provides a description of the ``El Paso Intelligence
Center (EPIC) Seizure System (ESS), JUSTICE/DEA-022'' in compliance
with the Privacy Act, 5 U.S.C. 552a(e)(4) and (11). The ESS is a system
of records established to support the mission of the El Paso
Intelligence Center to support criminal investigations conducted by
Federal, state, local, tribal, and international law enforcement
agencies. EPIC maintains information in databases obtained from
contributing law enforcement agencies and provides information upon
request from authorized law enforcement agencies and officers in
support of criminal investigations. Additional information about EPIC
and its operations is provided in the Federal Register notice
referenced above.
Regulatory Flexibility Act
This proposed rule relates to individuals, as opposed to small
business entities. Nevertheless, pursuant to the requirements of the
Regulatory Flexibility Act, 5 U.S.C. 601-612, the proposed rule will
not have a significant economic impact on a substantial number of small
entities.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the DEA to comply with small entity requests for
information and advice about compliance with statutes and regulations
within DEA 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 http://www.sba.gov/advo/
laws/law--lib.html.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of
Information Act, Government in the Sunshine Act, 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 793-78, it is
proposed 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, 552b(g), 553; 18 U.S.C.
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.
2. Section 16.98 is amended to add new paragraphs (g) and (h) to
read as follows:
Sec. 16.98 Exemption of Drug Enforcement Administration Systems--
limited access.
* * * * *
(g) The following system of records is exempt from 5 U.S.C. 552a
(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5), and
(8); and (g): EPIC Seizure System (ESS) (JUSTICE/DEA-022). These
exemptions apply only to the extent that information in this system is
subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1), and
(k)(2). Where compliance would not appear to interfere with or
adversely affect the law enforcement and counter-drug purposes of this
system, and the overall law enforcement process, the applicable
exemption may be waived by the DEA in its sole discretion.
(h) Exemptions from the particular subsections 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 specifically reveal any investigative interest in the individual.
Revealing this information would permit the subject of an investigation
of an actual or potential criminal, civil, or regulatory violation to
determine whether he is the subject of investigation, or to obtain
valuable information concerning the nature of that investigation, and
the information obtained, or the identity of witnesses and informants.
Similarly, disclosing this information could reasonably be expected to
compromise ongoing investigatory efforts by notifying the record
subject that he/she is under investigation. This information could also
permit the record subject to take measures to impede the investigation,
e.g., destroy evidence, intimidate potential witnesses, or flee the
area to avoid or impede the investigation.
(2) From subsection (c)(4) because this system is exempt from the
access and amendment provisions of subsection (d).
(3) From subsections (d)(1), (2), (3), and (4) because these
provisions concern individual access to and amendment of records
contained in this system, which consists of counter-drug and criminal
investigatory records. Compliance with these provisions could alert the
subject of an investigation of an actual or potential criminal, civil,
or regulatory violation of the existence of that investigation, or the
nature and scope of the information and evidence obtained as to his
activities, of the identity of witnesses and informants, or would
provide information that could enable the subject to avoid detection or
apprehension. These factors would present a serious impediment to
[[Page 36295]]
effective law enforcement because they could prevent the successful
completion of the investigation; endanger the physical safety of
witnesses or informants; or lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of
testimony.
(4) From subsection (e)(1) because it is not always possible to
know in advance what information is relevant and necessary to complete
an identity comparison between the individual being screened and a
known or suspected criminal or terrorist. Also, it may not always be
known what information will be relevant to law enforcement for the
purpose of conducting an operational response or on-going
investigation.
(5) From subsection (e)(2) because application of this provision
could present a serious impediment to law enforcement and counter-drug
efforts in that it would put the subject of an investigation, study or
analysis on notice of that fact, thereby permitting the subject to
engage in conduct designed to frustrate or impede that activity. The
nature of counter-drug investigations is such that vital information
about an individual frequently can be obtained only from other persons
who are familiar with such individual and his/her activities. In such
investigations it is not feasible to rely upon information furnished by
the individual concerning his own activities.
(6) From subsection (e)(3), to the extent that this subsection is
interpreted to require EPIC to provide notice to an individual if EPIC
receives information about that individual from a third party. Should
the subsection be so interpreted, exemption from this provision is
necessary to avoid impeding counter-drug efforts by putting the subject
of an investigation, study or analysis on notice of that fact, thereby
permitting the subject to engage in conduct intended to frustrate or
impede that activity.
(7) From subsection (e)(5) because many of the records in this
system are derived from other domestic record systems and therefore it
is not possible for the DEA and EPIC to vouch for their compliance with
this provision; however, EPIC has implemented internal quality
assurance procedures to ensure that ESS data is as thorough, accurate,
and current as possible. In addition, EPIC supports but does not
conduct investigations; therefore, it must be able to collect
information related to illegal drug and other criminal activities and
encounters for distribution to law enforcement and intelligence
agencies that do conduct counter-drug investigations. In the collection
of information for law enforcement and counter-drug purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. With the passage of time, seemingly
irrelevant or untimely information may acquire new significance as
further investigation brings new details to light. The restrictions
imposed by (e)(5) would limit the ability of those agencies' trained
investigators and intelligence analysts to exercise their judgment in
conducting investigations and impede the development of intelligence
necessary for effective law enforcement and counterterrorism efforts.
EPIC has, however, implemented internal quality assurance procedures to
ensure that ESS data is as thorough, accurate, and current as possible.
ESS is also exempt from the requirements of subsection (e)(5) in order
to prevent the use of a challenge under subsection (e)(5) as a
collateral means to obtain access to records in the ESS. ESS records
are exempt from the access and amendment requirements of subsection (d)
of the Privacy Act in order to protect the integrity of investigations.
Exempting ESS from subsection (e)(5) serves to prevent the assertion of
challenges to a record's accuracy, timeliness, completeness, and/or
relevance under subsection (e)(5) to circumvent the exemption claimed
from subsection (d).
(8) From subsection (e)(8) because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on the DEA and EPIC and could alert
the subjects of counter-drug, counterterrorism, law enforcement, or
intelligence investigations to the fact of those investigations when
not previously known. Additionally, compliance could present a serious
impediment to law enforcement as this could interfere with the ability
to issue warrants or subpoenas and could reveal investigative
techniques, procedures, or evidence.
(9) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act.
Dated: June 19, 2006.
Lee J. Lofthus,
Acting Assistant Attorney General for Administration.
[FR Doc. E6-9976 Filed 6-23-06; 8:45 am]
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