[Federal Register Volume 77, Number 81 (Thursday, April 26, 2012)]
[Proposed Rules]
[Pages 24878-24880]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9774]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 008-2012]
Privacy Act of 1974; Implementation
AGENCY: Bureau of Prisons, Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In the Federal Register, the Bureau of Prisons (Bureau or
BOP), a component of the Department of Justice, has published a notice
of a revised Privacy Act system of records, Inmate Central Records
System (JUSTICE/BOP-005). In this notice of proposed rulemaking, the
Bureau proposes to amend its Privacy Act regulations for the Inmate
Central Records System (JUSTICE/BOP-005) by now exempting this system
from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), (H),
and (I), (5), and (8); (f); and (g) of the Privacy Act of 1974 pursuant
to 5 U.S.C. 552a(j) and (k) for the reasons set forth in the following
text. The exemptions are necessary to avoid interference with the law
enforcement and functions and responsibilities of the Bureau.
Public comment is invited.
DATES: Comments must be received by May 29, 2012.
ADDRESSES: Address all comments to the Privacy Analyst, Office of
Privacy and Civil Liberties, National Place Building, Suite 1000,
Washington, DC 20530, or by facsimile 202-307-0693. To ensure proper
handling, please reference the CPCLO Order number in your
correspondence. You may review an electronic version of the proposed
rule at http://www.regulations.gov. You may also submit a comment via
the Internet by using the comment form for this regulation at http://www.regulations.gov. Please include the CPCLO Order number 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 http://www.regulations.gov 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. All comments sent via
regular or express mail will be considered timely if postmarked on the
day the comment period closes.
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 http://www.regulations.gov and in the Department's
public docket. Such information includes personally identifying
information (such as name, address, etc.,) voluntarily submitted by the
commenter.
If you want to submit personally 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 term ``PERSONALLY IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You must also place all the personally
identifying information 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 term ``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 identifying information and confidential business
information identified and located as set forth above will be redacted
and the comment, in redacted form, will 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 paragraph.
FOR FURTHER INFORMATION CONTACT: C. Darnell Stroble, Attorney-Advisor,
Federal Bureau of Prisons, 202-514-9180.
SUPPLEMENTARY INFORMATION: In the Notice section of today's Federal
Register, the Bureau published a revised Privacy Act system of records
notice, Inmate Central Records System (JUSTICE/BOP-005). This system
assists the Attorney General and the Bureau of Prisons in meeting
statutory responsibilities for the safekeeping, care and custody of
incarcerated persons. It serves as the primary record system on these
individuals and includes information critical to the continued safety
and security of federal prisons and the public.
In this rulemaking, the Bureau proposes to exempt this Privacy Act
system of records from certain provisions of the Privacy Act pursuant
to 5 U.S.C. 552a(j) and (k). Although this system of records was
previously exempt from certain provisions of the Privacy Act pursuant
to 5 U.S.C. 552a(j)(2), the Bureau is seeking additional exemptions
pursuant to 5 U.S.C. 552a(j)(2), adding exemptions pursuant to 5 U.S.C.
552a(k), and consolidating the exemptions together in one location of
the Code of Federal Register. Therefore, the proposed rule seeks to
delete all references of the Inmate Central Records System (JUSTICE/
BOP-005) from paragraphs (a)
[[Page 24879]]
and (b) of 28 CFR 16.97 and replace paragraphs (j) and (k) of 28 CFR
16.97 with new exemption language as set forth in the following text.
Regulatory Flexibility Act
This proposed rule relates to individuals, as opposed to small
business entities. Pursuant to the requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601-612, therefore, 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, 5 U.S.C. 601 et seq., requires the Bureau to comply with small
entity requests for information and advice about compliance with
statutes and regulations within Bureau 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://archive.sba.gov/advo/laws/sbrefa.html.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
that the BOP consider the impact of paperwork and other information
collection burdens imposed on the public. There is no current or new
information collection requirement associated with this proposed rule.
The records that are contributed to the Inmate Central Records system
would be created in any event by law enforcement entities and their
sharing of this information electronically will not increase the
paperwork burden on the public.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, 109 Stat. 48, requires Federal agencies to assess the
effects of certain regulatory actions on State, local, and tribal
governments, and the private sector. UMRA requires a written statement
of economic and regulatory alternatives for proposed and final rules
that contain Federal mandates. A ``Federal mandate'' is a new or
additional enforceable duty, imposed on any State, local, or tribal
government, or the private sector. If any Federal mandate causes those
entities to spend, in aggregate, $100 million or more in any one year
the UMRA analysis is required. This proposed rule would not impose
Federal mandates on any State, local, or tribal government or the
private sector.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of
Information Act, Government in the Sunshine Act, 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, it
is proposed to amend 28 CFR Part 16 as follows:
PART 16--[AMENDED]
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.
Subpart E--Exemption of Records Systems Under the Privacy Act
2. Section 16.97 is amended to delete all references to ``Inmate
Central Record System (JUSTICE/BOP-005)'' from paragraphs (a) and (b)
and replace (j) and (k) with the following:
Sec. 16.97 Exemption of Bureau of Prisons Systems--limited access.
* * * * *
(j) The following system of records is exempt pursuant to 5 U.S.C.
552a(j) and (k) from subsections (c)(3) and (4); (d); (e)(1), (2), (3),
(4)(G), (H), and (I), (5), (8); (f); and (g): The Inmate Central
Records System (JUSTICE/BOP-005).
(k) 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)
and/or (k)(2). Where compliance would not appear to interfere with or
adversely affect the law enforcement process, and/or where it may be
appropriate to permit individuals to contest the accuracy of the
information collected, the applicable exemption may be waived, either
partially or totally, by the BOP. 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 from
records concerning him/her would specifically reveal any investigative
interest in the individual. Revealing this information may thus
compromise ongoing law enforcement efforts, as well as efforts to
identify and defuse any potential acts of terrorism. Revealing this
information may also permit the record subject to take measures to
impede the investigation, such as destroying evidence, intimidating
potential witnesses, or fleeing the area to avoid the investigation.
(2) From subsection (c)(4) notification requirements 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,
compliance with which could jeopardize the legitimate correctional
interests of safety, security, and good order of prison facilities;
alert the subject of a suspicious activity report of the fact and
nature of the report and any underlying investigation and/or the
investigative interest of the BOP and other law enforcement agencies;
interfere with the overall law enforcement process by leading to the
destruction of evidence, improper influencing of witnesses, and/or
flight of the subject; possibly identify a confidential source or
disclose information which would constitute an unwarranted invasion of
another's personal privacy; reveal a sensitive investigative or
intelligence technique; or constitute a potential danger to the health
or safety of law enforcement personnel, confidential informants, and
witnesses. Although the BOP has rules in place emphasizing that records
should be kept up to date, requirement of amendment of these records
would interfere with ongoing law enforcement activities and impose an
impossible administrative burden by requiring investigations, analyses,
and reports to be continuously reinvestigated and revised.
(4) From subsection (e)(1) because it is not always possible to
know in advance what information is relevant and necessary for the
proper safekeeping, care, and custody of incarcerated persons, and for
the proper security and safety of federal prisons and the public. In
addition, to the extent that the BOP may collect information that may
also be relevant to the law enforcement operations of other agencies,
in the interests of overall, effective law enforcement, such
information should be retained and made available to those agencies
with such relevant responsibilities.
(5) From subsections (e)(2) because the nature of criminal
investigative and correctional activities is such that vital
information about an individual can be obtained from other persons who
are familiar with such individual and his/her activities. In such
investigations and activities, it is not feasible to rely solely
[[Page 24880]]
upon information furnished by the individual concerning his/her own
activities since it may result in inaccurate information and compromise
ongoing criminal investigations or correctional management decisions.
(6) From subsections (e)(3) because in view of BOP's operational
responsibilities, the application of this provision would provide the
subject of an investigation or correctional matter with substantial
information which may in fact impede the information gathering process
or compromise ongoing criminal investigations or correctional
management decisions.
(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 (e)(4)(I) because publishing further details
regarding categories of sources of records in the system would
compromise ongoing investigations, reveal investigatory techniques and
descriptions of confidential informants, or constitute a potential
danger to the health or safety of law enforcement personnel.
(9) From subsection (e)(5) because in the collection and
maintenance of information for law enforcement purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Data which may seem unrelated,
irrelevant or incomplete when collected may take on added meaning or
significance during the course of an investigation or with the passage
of time, and could be relevant to future law enforcement decisions. In
addition, because many of these records come from the courts and other
state and local criminal justice agencies, it is administratively
impossible for them and the Bureau to ensure compliance with this
provision. The restrictions of subsection (e)(5) would restrict and
delay trained correctional managers from timely exercising their
judgment in managing the inmate population and providing for the safety
and security of the prisons and the public.
(10) From subsection (e)(8), because to require individual notice
of disclosure of information due to a compulsory legal process would
pose an impossible administrative burden on BOP and may alert subjects
of investigations, who might otherwise be unaware, to the fact of those
investigations.
(11) From subsection (f) to the extent that this system is exempt
from the provisions of subsection (d).
(12) From subsection (g) to the extent that this system is exempted
from other provisions of the Act.
Dated: April 18, 2012.
Nancy C. Libin,
Chief Privacy and Civil Liberties Officer, United States Department of
Justice.
[FR Doc. 2012-9774 Filed 4-25-12; 8:45 am]
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