[Federal Register: July 28, 2005 (Volume 70, Number 144)]
[Proposed Rules]
[Page 43661-43663]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy05-11]
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DEPARTMENT OF JUSTICE
Federal Bureau of Investigation
28 CFR Part 16
[AAG/A Order No. 006-2005]
Privacy Act of 1974: Implementation
AGENCY: Federal Bureau of Investigation, DOJ.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice (DOJ), Federal Bureau of
Investigation (FBI), proposes to exempt a new system of records
entitled the Terrorist Screening Records System (TSRS) (JUSTICE/FBI--
019) from subsections (c)(3) and (4); (d)(1), (2), (3), and (4);
(e)(1), (2), (3), (5), and (8); and (g) of the Privacy Act pursuant to
5 U.S.C. 552a(j) and (k). As explained in the proposed rule, the
exemption is necessary to avoid interference with the law enforcement,
intelligence, and counterterrorism functions and responsibilities of
the FBI and its Terrorist Screening Center (TSC). Public comment is
invited.
DATES: Comments must be received by September 6, 2005.
ADDRESSES: Address all comments to Mary E. Cahill, Management Analyst,
Management and Planning Staff, Justice Management Division, Department
of Justice, Washington, DC 20530 (Room 1400, National Place Building),
Facsimile Number (202) 307-1853. To ensure proper handling, please
reference the AAG/A Order No. on your correspondence. You may review an
electronic version of this proposed rule at http://www.regulations.gov.
You may also comment via the Internet to the DOJ/Justice Management
Division at the following e-mail address: DOJ
[[Page 43662]]
PrivacyACT ProposedRegulations@usdoj.gov; or by using the
http://www.regulations.gov comment form for this regulation. When submitting
comments electronically, you must include the AAG/A Order No. in the
subject box.
FOR FURTHER INFORMATION CONTACT: Mary E. Cahill, (202) 307-1823.
SUPPLEMENTARY INFORMATION: In the notice section of today's Federal
Register, the FBI provides a description of the ``Terrorist Screening
Records System, JUSTICE/FBI-019'' in compliance with the Privacy Act, 5
U.S.C. 552a(e)(4). The Terrorist Screening Records System is a system
of records established pursuant to Homeland Security Presidential
Directive 6 to support the mission of the FBI's TSC to consolidate the
government's approach to terrorist screening. The TSC maintains the
government's consolidated watchlist of known and suspected terrorists
and supports agencies that engage in terrorist screening of
individuals. Additional information about the TSC and its operations is
provided in the Federal Register notice referenced above.
Regulatory Flexibility Act
This proposed rule relates to individuals, as opposed to small
business entities. Nevertheless, pursuant to the requirements of the
Regulatory Flexibility Act, 5 U.S.C. 601-612, 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 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/laws/law_lib.html
.
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 are no current or new
information collection requirements associated with this proposed rule.
Analysis of Regulatory Impacts
This proposed rule is not a ``significant regulatory action''
within the meaning of Executive Order 12886. Because the economic
impact should be minimal, further regulatory evaluation is not
necessary. Moreover, the Attorney General certifies that this rule
would not have a significant economic impact on a substantial number of
small entities, because the reporting requirements themselves are not
changed and because it applies only to information on individuals.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub.
L. 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.
Executive Order 13132, Federalism
The FBI has analyzed this rule under the principles and criteria of
Executive Order 13132, Federalism. This action will not have a
substantial direct effect on the States, on the relationship between
the national Government and the States, or on the distribution of power
and responsibilities among the various levels of government, and
therefore will not have federalism implications.
Environmental Analysis
The FBI has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
Energy Impact
The energy impact of this action has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163,
as amended (42 U.S.C. 6362). This rulemaking is not a major regulatory
action under the provisions of the EPCA.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of
Information Act, Government in the Sunshine Act, 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 793-78, 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 16.96 is amended to add new paragraphs (r) and (s) to
read as follows:
Sec. 16.96 Exemption of Federal Bureau of Investigation Systems--
limited access.
* * * * *
(r) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5),
and (8); and (g):
(1) Terrorist Screening Records System (TSRS) (JUSTICE/FBI-019).
(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)(2),
(k)(1), and (k)(2). Where compliance would not appear to interfere with
or adversely affect the counterterrorism purposes of this system, and
the overall law enforcement process, the applicable exemption may be
waived by the FBI in its sole discretion.
(s) Exemptions from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3) 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 could reasonably be expected to compromise
ongoing efforts to investigate a known or suspected terrorist by
notifying the record subject that he/she is under investigation. This
information could also permit the record subject to take measures to
impede the investigation, e.g., destroy evidence, intimidate potential
witnesses, or flee the area to avoid or impede the investigation.
(2) From subsection (c)(4) because this system is exempt from the
access and amendment provisions of subsection (d).
[[Page 43663]]
(3) From subsections (d)(1), (2), (3), and (4) because these
provisions concern individual access to and amendment of records
contained in this system, which consists of counterterrorism,
investigatory and intelligence records. Compliance with these
provisions could alert the subject of an investigation pertaining to
terrorism of the fact and nature of the investigation, and/or the
investigative interest of the FBI and/or other intelligence or law
enforcement agencies; compromise sensitive information classified in
the interest of national security; interfere with the overall law
enforcement process by leading to the destruction of evidence, improper
influencing of witnesses, fabrication of testimony, and/or flight of
the subject; could 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.
Amendment of these records would interfere with ongoing
counterterrorism investigations and analysis 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 for
TSC to know in advance what information is relevant and necessary for
it to complete an identity comparison between the individual being
screened and a known or suspected terrorist. Also, because TSC and the
FBI may not always know what information about an encounter with a
known or suspected terrorist will be relevant to law enforcement for
the purpose of conducting an operational response.
(5) From subsection (e)(2) because application of this provision
could present a serious impediment to counterterrorism efforts in that
it would put the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in
conduct designed to frustrate or impede that activity. The nature of
counterterrorism investigations is such that vital information about an
individual frequently can be obtained only from other persons who are
familiar with such individual and his/her activities. In such
investigations it is not feasible to rely upon information furnished by
the individual concerning his own activities.
(6) From subsection (e)(3), to the extent that this subsection is
interpreted to require TSC to provide notice to an individual if TSC
receives information about that individual from a third party. Should
the subsection be so interpreted, exemption from this provision is
necessary to avoid impeding counterterrorism efforts by putting the
subject of an investigation, study or analysis on notice of that fact,
thereby permitting the subject to engage in conduct intended to
frustrate or impede that activity.
(7) From subsection (e)(5) because many of the records in this
system are derived from other domestic and foreign agency record
systems and therefore it is not possible for the FBI and the TSC to
vouch for their compliance with this provision, however, the TSC has
implemented internal quality assurance procedures to ensure that TSC
terrorist screening data is as thorough, accurate, and current as
possible. In addition, TSC supports but does not conduct
investigations; therefore, it must be able to collect information
related to terrorist identities and encounters for distribution to law
enforcement and intelligence agencies that do conduct terrorism
investigations. In the collection of information for law enforcement,
counterterrorism, and intelligence purposes, it is impossible to
determine in advance what information is accurate, relevant, timely,
and complete. With the passage of time, seemingly irrelevant or
untimely information may acquire new significance as further
investigation brings new details to light. The restrictions imposed by
(e)(5) would limit the ability of those agencies' trained investigators
and intelligence analysts to exercise their judgment in conducting
investigations and impede the development of intelligence necessary for
effective law enforcement and counterterrorism efforts. The TSC has,
however, implemented internal quality assurance procedures to ensure
that TSC terrorist screening data is as thorough, accurate, and current
as possible.
(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 the TSC and could alert
the subjects of counterterrorism, law enforcement, or intelligence
investigations to the fact of those investigations when not previously
known.
(9) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act.
Dated: July 22, 2005.
Paul R. Corts,
Assistant Attorney General for Administration.
[FR Doc. 05-14850 Filed 7-27-05; 8:45 am]
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