[Federal Register Volume 77, Number 132 (Tuesday, July 10, 2012)]
[Proposed Rules]
[Pages 40539-40541]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16822]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 013-2012]
Privacy Act of 1974; Implementation
AGENCY: Federal Bureau of Investigation, Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Elsewhere in the Federal Register, the Federal Bureau of
Investigation (FBI), a component of the Department of Justice, has
published a notice of a new Privacy Act system of records, JUSTICE/FBI-
022, the FBI Data Warehouse System. In this notice of proposed
rulemaking, the FBI proposes to exempt this system from certain
provisions of the Privacy Act in order to avoid interference with the
national security and criminal law enforcement functions and
responsibilities of the FBI. Public comment is invited.
DATES: Comments must be received by August 9, 2012.
ADDRESSES: Address all comments to the Privacy Analyst, Privacy and
Civil Liberties Office, National Place Building, 1331 Pennsylvania Ave.
NW., Suite 1000, Washington, DC 20530-0001 or facsimile 202-307-0693.
To ensure proper handling, please reference the CPCLO Order No. on your
correspondence. You may review an electronic version of the proposed
rule at http://www.regulations.gov and you may also comment by using
the http://www.regulations.gov comment form for this regulation. Please
include the CPCLO Order No. in the subject box.
Please note that the Department is requesting that electronic
comments be submitted before midnight Eastern Daylight Savings 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 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 your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personally identifying information (such as
your
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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 IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You must also place all 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 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 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 paragraph.
FOR FURTHER INFORMATION CONTACT: Kristin Meinhardt, Assistant General
Counsel, Privacy and Civil Liberties Unit, Office of the General
Counsel, FBI, Washington, DC 20535-0001, telephone 202-324-3000.
SUPPLEMENTARY INFORMATION: In the Notice section of today's Federal
Register, the FBI has established a new Privacy Act system of records,
the FBI Data Warehouse System, Justice/FBI-022. The system serves as a
repository for FBI information and for information lawfully received
from other agencies and permits the comparison of data sets in order to
provide a more complete picture of potential national security threats
or criminal activities. The FBI is also deleting the system of records
notice for the Data Integration and Visualization System (DIVS),
published at 75 FR 53342 (Aug. 31, 2010) and modified at 75 FR 66131
(Oct. 27, 2010) because the Data Warehouse System will now also cover
information that was covered by the DIVS SORN.
In this rulemaking, the FBI proposes to exempt the Data Warehouse
System, Justice/FBI-022, from certain provisions of the Privacy Act in
order to avoid interference with the law enforcement, intelligence and
counterintelligence, and counterterrorism responsibilities of the FBI
as established in federal law and policy. The FBI is also replacing the
exemption regulation for DIVS with this proposed rule because that
system will now be covered by Justice/FBI-022 and this proposed
rulemaking. The exemption regulation for DIVS will stay in effect until
this rule is final.
Regulatory Flexibility Act
This proposed rule relates to individuals rather than 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 Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996, 5 U.S.C. 801 et seq., requires the FBI to comply with small
entity requests for information and advice about compliance with
statutes and regulations within FBI 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/archive/sum_sbrefa.html.
The Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
that the FBI consider the impact of paperwork and other information
collection burdens imposed on the public. There is no current or new
information collection requirements associated with this proposed rule.
The records that are contributed to this system are created by the FBI
or other law enforcement and intelligence entities and 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 103-3, 109 Stat. 48, requires Federal agencies to assess the
effects of certain regulatory actions on State, local, and tribal
governments, and the private sector. UMBRA 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, 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, 524; 31 U.S.C. 3717, 9701.
Subpart E--Exemption of Records Systems Under the Privacy Act
2. In Sec. 16.96, revise paragraphs (v) and (w) to read as
follows:
Sec. 16.96 Exemption of Federal Bureau of Investigation Systems--
limited access.
* * * * *
(v) The following system of record is exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3),
(4)(G), (H), and (I), (5), and (8); (f); and (g) of the Privacy Act:
(1) FBI Data Warehouse System, (JUSTICE/FBI-022).
(2) These exemptions apply only to the extent that information in
this system is subject to exemption pursuant to 5 U.S.C. 552a(j) and
(k). Where compliance with an exempted provision could not appear to
interfere with or adversely affect interests of the United States or
other system stakeholders, the DOJ in its sole discretion may waive an
exemption in whole or in part; exercise of this discretionary waiver
prerogative in a particular matter shall not create any entitlement to
or expectation of waiver in that matter or any other matter. As a
condition of discretionary waiver, the DOJ in its sole discretion may
impose any restrictions deemed advisable by the DOJ (including, but not
limited to, restrictions on the location, manner, or scope of notice,
access or amendment).
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(w) 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 law
enforcement or national security investigative interest in the
individual by the FBI or agencies that are recipients of the
disclosures. Revealing this information could compromise ongoing,
authorized law enforcement and intelligence efforts, particularly
efforts to identify and defuse any potential acts of terrorism or other
potential violations of criminal law. 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 circumvent the investigation.
(2) From subsection (c)(4) notification requirements because this
system is exempt from the access and amendment provisions of subsection
(d) as well as the accounting of disclosures provision of subsection
(c)(3).
(3) From subsection (d)(1), (2), (3) and (4), (e)(4)(G) and (H),
because these provisions concern individual access to and amendment of
law enforcement, intelligence and counterintelligence, and
counterterrorism records and compliance could alert the subject of an
authorized law enforcement or intelligence activity about that
particular activity and the investigative interest of the FBI and/or
other law enforcement or intelligence agencies. Providing access could
compromise sensitive information classified to protect national
security; disclose information which would constitute an unwarranted
invasion of another's personal privacy; reveal a sensitive
investigative or intelligence technique; could 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, and witnesses. The FBI 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 FBI records, it will share that
information in appropriate cases with subjects of the information.
(4) From subsection (e)(1) 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 terrorism or other crimes
may not always be evident until and unless it is vetted and matched
with other sources of information that are necessarily and lawfully
maintained by the FBI.
(5) From subsection (e)(2) and (3) because application of this
provision could present a serious impediment to efforts to solve crimes
and improve national security. Application of these provisions would
put the subject of an investigation on notice of that fact and allow
the subject an opportunity to engage in conduct intended to impede that
activity or avoid apprehension.
(6) 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 and intelligence
information and to protect the privacy and safety of witnesses and
informants and others who provide information to the FBI. Further,
greater specificity of properly classified records could compromise
national security.
(7) From subsection (e)(5) because in the collection of information
for authorized law enforcement and intelligence purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely and complete. With time, seemingly irrelevant or
untimely information may acquire new significance when new details are
brought to light. Additionally, the information may aid in establishing
patterns of activity and providing criminal or intelligence leads. It
could impede investigative progress if it were necessary to assure
relevance, accuracy, timeliness and completeness of all information
obtained during the scope of an investigation. Further, some of the
records in this system come from other agencies and it would be
administratively impossible for the FBI to vouch for the compliance of
these agencies with this provision.
(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 FBI and may alert the subjects
of law enforcement investigations, who might be otherwise unaware, to
the fact of those investigations.
(9) From subsections (f) and (g) to the extent that the system is
exempt from other specific subsections of the Privacy Act.
Dated: June 19, 2012.
Nancy C. Libin,
Chief Privacy and Civil Liberties Officer, United States Department of
Justice.
[FR Doc. 2012-16822 Filed 7-9-12; 8:45 am]
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