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Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Proposed Rules
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 Departments 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 Administrations 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.

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Executive Order 13132Federalism 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.

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. 3507d, 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 29402008, the Department of Justice proposes to amend 28 CFR part 16 as follows:
PART 16PRODUCTION OR
DISCLOSURE OF MATERIAL OR
INFORMATION
1. The authority citation for part 16
continues to read as follows:

Executive Order 12988Civil Justice Reform This proposed regulation meets the applicable standards set forth in sections 3a and 3b2 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.

Authority: 5 U.S.C. 301, 552, 552a, 553; 28
U.S.C. 509, 510, 534; 31 U.S.C. 3717.

Executive Order 13175Consultation 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.

a The Department of Justice Information Technology, Information System, and Network Activity and Access Records JUSTICE/DOJ002
system of records is exempted from subsections c3; d; e1, e4G, H, and I; and f of the Privacy Act of 1974, as amended. These exemptions apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C.
552ak1 or k2. The applicable exemption may be waived by the DOJ in its sole discretion where DOJ
determines compliance with the exempted provisions of the Act would not 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
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
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Subpart EExemption of Records Systems Under the Privacy Act 2. Add 16.138 to subpart E to read as follows:

16.138 Exemption of the Department of Justice, Computer Systems Activity and Access Records, JUSTICE/DOJ002.

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magnitude of harm that could result from the unauthorized access, use, disclosure, disruption, modification, or destruction of DOJ information and DOJ
information systems.
b Exemptions from the particular subsections are justified for the following reasons:
1 From subsection c3, 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 or other entities that are recipients of the disclosures. Revealing this information could compromise sensitive information classified in the interest of national security, 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 d1, 2, 3 and 4, e4G and H, and f because these provisions concern individual access to and amendment of certain law enforcement and classified records, compliance of which could alert the subject of an authorized law enforcement activity about that particular activity and the interest of the DOJ and/or other law enforcement or intelligence agencies. Providing access could compromise information classified to protect national security, 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 e1 because it is not always possible to know in advance what information is relevant and necessary for law enforcement and intelligence 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 or other entities.
4 From subsection e4I, to the extent that this subsection is interpreted to require more detail regarding the record sources in this system than has
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