Proposed Rule2021-15884
Privacy Act of 1974; Implementation
Primary source
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Published
July 30, 2021
Issuing agencies
Justice Department
Abstract
The Department of Justice (Department or DOJ), Justice Management Division (JMD), in the Notices section of this issue of the Federal Register, is publishing a new system of records, ``Security Monitoring and Analytics Service Records,'' JUSTICE/JMD-026. In this notice of proposed rulemaking, DOJ proposes to exempt this system of records from certain provisions of the Privacy Act to avoid interference with efforts to prevent the unauthorized access, use, disclosure, disruption, modification, or destruction of information, information systems, and networks of DOJ and external federal agency subscribers. For the reasons provided below, the Department proposes to amend its Privacy Act regulations by establishing an exemption from certain provisions of the Privacy Act for this system of records. Public comment is invited.
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<title>Federal Register, Volume 86 Issue 144 (Friday, July 30, 2021)</title>
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[Federal Register Volume 86, Number 144 (Friday, July 30, 2021)]
[Proposed Rules]
[Pages 40972-40974]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-15884]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 008-2021]
Privacy Act of 1974; Implementation
AGENCY: Justice Management Division (JMD), United States Department of
Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice (Department or DOJ), Justice
Management Division (JMD), in the Notices section of this issue of the
Federal Register, is publishing a new system of records, ``Security
Monitoring and Analytics Service Records,'' JUSTICE/JMD-026. In this
notice of proposed rulemaking, DOJ proposes to exempt this system of
records from certain provisions of the Privacy Act to avoid
interference with efforts to prevent the unauthorized access, use,
disclosure, disruption, modification, or destruction of information,
information systems, and networks of DOJ and external federal agency
subscribers. For the reasons provided below, the Department proposes to
amend its Privacy Act regulations by establishing an exemption from
certain provisions of the Privacy Act for this system of records.
Public comment is invited.
DATES: Comments must be received by August 30, 2021.
ADDRESSES: You may send comments by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
When submitting comments electronically, you must include the CPCLO
Order No. in the subject box. Please note that the Department is
requesting that electronic comments be submitted before midnight
Eastern Standard Time on the day the comment period closes because
<a href="http://www.regulations.gov">http://www.regulations.gov</a> terminates the public's ability to submit
comments at that time. Commenters in time zones other than Eastern
Standard Time may want to consider this so that their electronic
comments are received.
<bullet> Mail: United States Department of Justice, Office of
Privacy and Civil Liberties, ATTN: Privacy Analyst, Office of Privacy
and Civil Liberties, 145 N St. NE, Suite 8W.300, Washington, DC 20530.
All comments sent via regular or express mail will be considered timely
if postmarked on the day the comment period closes. To ensure proper
handling, please reference the CPCLO Order No. in your correspondence.
Posting of Public Comments: Interested persons are invited to
participate in this rulemaking by submitting written data, views, or
arguments on all aspects of this rule by one of the methods and by the
deadline stated above. All comments must be submitted in English, or
accompanied by an English translation. The Department also invites
comments that relate to the economic, environmental, or federalism
effects that might result from this rule. Comments that will provide
the most assistance to the Department in developing these procedures
will reference a specific portion of the rule, explain the reason for
any recommended change, and include data, information, or authority
that support such recommended change.
Please note that all comments received are considered part of the
public record and made available for public inspection at
<a href="http://www.regulations.gov">www.regulations.gov</a>. Such information includes personally identifying
information (PII) (such as your name, address, etc.). Interested
persons are not required to submit their PII in order to comment on
this rule. However, any PII that is submitted is subject to being
posted to the publicly-accessible <a href="http://www.regulations.gov">www.regulations.gov</a> site without
redaction.
Confidential business information clearly identified in the first
paragraph of the comment as such will not be placed in the public
docket file.
The Department may withhold from public viewing information
provided in comments that they determine may impact the privacy of an
individual or is offensive. For additional information, please read the
Privacy Act notice that is available via the link in the footer of
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. To inspect the agency's public docket file
in person, you must make an appointment with the agency. Please see the
FOR FURTHER INFORMATION CONTACT paragraph, below, for agency contact
information.
FOR FURTHER INFORMATION CONTACT: Nickolous Ward, DOJ Chief Information
Security Officer, (202) 514-3101, 145 N Street NE, Washington, DC
20530.
SUPPLEMENTARY INFORMATION: In accordance with the Federal Information
Security Modernization Act of 2014, among other authorities, agencies
are is responsible for complying with information security policies and
procedures requiring information security protections commensurate with
the risk and magnitude of harm resulting from the unauthorized access,
use, disclosure, disruption, modification, or destruction of DOJ
information and information systems. See, e.g., 44 U.S.C. 3554 (2018).
Executive Order No. 13800, Strengthening the Cybersecurity of Federal
Networks and Critical Infrastructure (May 2017), directs agency heads
to show preference in their procurement for shared IT services, to the
extent permitted by law, including email, cloud, and cybersecurity
services. Office of Management and Budget (OMB) Memorandum M-19-16,
Centralized Mission Support Capabilities for the Federal Government
(April 26, 2019), establishes the framework for implementing the
``Sharing Quality Services'' across agencies. The Economy Act of 1932,
as amended, 31 U.S.C. 1535, authorizes agencies to enter into
agreements to obtain supplies or services from another agency.
Consistent with these authorities, the JMD, Office of the Chief
Information Officer (OCIO), Cybersecurity Services Staff (CSS),
developed the Security Monitoring and Analytics Service (SMAS) system
to provide DOJ-managed information technology service offerings to
other federal agencies wishing to leverage DOJ's cybersecurity
services, referred to as ``external federal agency subscribers.'' This
system provides external federal agency subscribers with the technical
capability to protect their data from malicious or accidental threats
using a DOJ-managed system. Elsewhere in the Federal Register, JMD
published a notice of a new system of records titled, ``Security
Monitoring and Analytics Service Records,'' JUSTICE/JMD-026, to provide
the public notice of the records maintained by DOJ while implementing
SMAS.
In this rulemaking, the Department proposes to exempt JUSTICE/JMD-
026 from certain provisions of the Privacy Act in order to avoid
interference with the responsibilities of the Department to prevent the
unauthorized access, use, disclosure, disruption, modification, or
destruction of external federal agency subscribers' information and
information systems. Additionally, the
[[Page 40973]]
Department proposes to exempt JUSTICE/JMD-026 from certain provisions
to assist DOJ and external federal agency subscribers with protecting
such data and ensuring the secure operation of information systems.
Executive Orders 12866 and 13563--Regulatory Review
In accordance with 5 U.S.C. 552a(j) and 552a(k), this proposed
action is subject to formal rulemaking procedures by giving interested
persons an opportunity to participate in the rulemaking process
``through submission of written data, views, or arguments,'' pursuant
to 5 U.S.C. 553. This proposed rule will promulgate certain Privacy Act
exemptions for a DOJ system of records titled, ``Security Monitoring
and Analytics Service Records,'' JUSTICE/JMD-026. This proposed rule
does not raise novel legal or policy issues, nor does it adversely
affect the economy, the budgetary impact of entitlements, grants, user
fees, loan programs, or the rights and obligations of recipients
thereof in a material way. The Department of Justice has determined
that this rule is not a ``significant regulatory action'' under
Executive Order 12866, section 3(f), and accordingly this rule has not
been reviewed by the Office of Information and Regulatory Affairs
within the Office of Management and Budget pursuant to Executive Order
12866.
Regulatory Flexibility Act
This proposed rule will only impact Privacy Act-protected records,
which are personal and generally do not apply to an individual's
entrepreneurial capacity, subject to limited exceptions. Accordingly,
the Chief Privacy and Civil Liberties Officer, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
regulation and by approving it certifies that this regulation will not
have a significant economic impact on a substantial number of small
entities.
Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle E-
Congressional Review Act)
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996, 5 U.S.C. 801 et seq., requires the Department to comply with
small entity requests for information and advice about compliance with
statutes and regulations within the Department's jurisdiction. Any
small entity that has a question regarding this document may contact
the person listed in FOR FURTHER INFORMATION CONTACT paragraph, above.
Persons can obtain further information regarding SBREFA on the Small
Business Administration's web page at <a href="https://www.sba.gov/advocacy">https://www.sba.gov/advocacy</a>.
This proposed rule is not a major rule as defined by 5 U.S.C. 804 of
the Congressional Review Act.
Executive Order 13132--Federalism
This proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This proposed regulation meets the applicable standards set forth
in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
drafting errors and ambiguity, minimize litigation, provide a clear
legal standard for affected conduct, and promote simplification and
burden reduction.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
This proposed rule will have no implications for Indian Tribal
governments. More specifically, it does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes.
Therefore, the consultation requirements of Executive Order 13175 do
not apply.
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local and tribal governments, in the aggregate, or by the private
sector, of $100,000,000, as adjusted for inflation, or more in any one
year, and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
the Department to consider the impact of paperwork and other
information collection burdens imposed on the public. There are no
current or new information collection requirements associated with this
proposed rule.
List of Subjects in 28 CFR Part 16
Administrative Practices and Procedures, Courts, Freedom of
Information, and the Privacy Act.
Pursuant to the authority vested in the Attorney General by 5
U.S.C. 552a and delegated to me by Attorney General Order 2940-2008,
the Department of Justice proposes to amend 28 CFR part 16 as follows:
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
0
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717.
Subpart E--Exemption of Records Systems Under the Privacy Act
0
2. Amend Sec. 16.76 by adding paragraphs (e) and (f) to read as
follows:
Sec. 16.76 Exemption of Justice Management Division.
* * * * *
(e) The following system of records is exempted from 5 U.S.C.
552a(c)(3); (d); (e)(1), (e)(4)(G), (H), and (I); and (f): Department
of Justice Security Monitoring and Analytics System (JUSTICE/JMD-025).
These exemptions apply only to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). Where
DOJ determines compliance would not appear to interfere with or
adversely affect the purpose of this system to ensure that the
Department can track information system access and implement
information security protections commensurate with the risk and
magnitude of harm that could result from the unauthorized access, use,
disclosure, disruption, modification, or destruction of DOJ information
and information systems, the applicable exemption may be waived by the
DOJ in its sole discretion.
(f) Exemptions from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be
made available to the named subject of a record, because this system is
exempt from the access provisions of subsection (d). Also, because
making available to a record subject the accounting of disclosures of
records concerning the subject would specifically reveal investigative
interests in the records by the DOJ, external federal agency
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subscribers, or other entities that are recipients of the disclosures.
Revealing this information could compromise sensitive information or
interfere with the overall law enforcement process by revealing a
pending sensitive cybersecurity investigation. Revealing this
information could also permit the record subject to obtain valuable
insight concerning the information obtained during any investigation
and to take measures to impede the investigation, e.g., destroy
evidence or alter techniques to evade discovery.
(2) From subsection (d)(1), (2), (3) and (4), (e)(4)(G) and (H),
and (f) because these provisions concern individual access to and
amendment of certain law enforcement and sensitive records, compliance
of which could alert the subject of an authorized law enforcement
activity about that particular activity and the interest of the DOJ,
external federal agency subscribers, and/or other entities that are
recipients of the disclosure. Providing access could compromise
sensitive information, or reveal sensitive cybersecurity investigative
techniques; provide information that would allow a subject to avoid
detection; or constitute a potential danger to the health or safety of
law enforcement personnel or confidential sources.
(3) From subsection (e)(1) because it is not always possible to
know in advance what information is relevant and necessary for law
enforcement purposes. The relevance and utility of certain information
that may have a nexus to cybersecurity threats may not always be fully
evident until and unless it is vetted and matched with other
information necessarily and lawfully maintained by the DOJ, external
federal agency subscribers, or other entities.
(4) From subsection (e)(4)(I), to the extent that this subsection
is interpreted to require more detail regarding the record sources in
this system than has been published in the Federal Register. Should the
subsection be so interpreted, exemption from this provision is
necessary to protect the sources of law enforcement information.
Dated: July 20, 2021.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2021-15884 Filed 7-29-21; 8:45 am]
BILLING CODE 4410-NW-P
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</html>Indexed from Federal Register on July 30, 2021.
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