[Federal Register Volume 77, Number 81 (Thursday, April 26, 2012)]
[Proposed Rules]
[Pages 24878-24880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9774]



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.


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 
    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 
    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 

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:


    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 
    (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 
    (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 
[FR Doc. 2012-9774 Filed 4-25-12; 8:45 am]