[Federal Register Volume 72, Number 192 (Thursday, October 4, 2007)]
[Proposed Rules]
[Pages 56704-56706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19458]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[AAG/A Order No. 034-2007]
Privacy Act of 1974; Implementation
AGENCY: Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Bureau of Investigation (FBI), a component agency
of the Department of Justice (DOJ), proposes to exempt a new Privacy
Act system of records entitled Law Enforcement National Data Exchange
(N-DEx) from certain provisions of the Privacy Act. As explained in the
proposed rule, the exemption is necessary to avoid interference with
the law enforcement functions and responsibilities of the FBI and the
N-DEx system. Public comment is invited.
DATES: Comments must be received by November 13, 2007.
ADDRESSES: Address all comments to Joo Chung, Counsel, Privacy and
Civil Liberties Office, Office of the Deputy Attorney General, 950
Pennsylvania Avenue, NW., Washington, DC 20530, or facsimile 202-616-
9627. To ensure proper handling, please reference the AAG/A Order No.
in your correspondence. You may review an electronic version of the
proposed rule at http://www.regulations.gov. You may also comment via
the Internet to the Privacy and Civil Liberties Office at DOJPrivacy
[email protected]; or by using the comment form for this
regulation at http://www.regulations.gov. Please include the AAG/A
Order No. in the subject box.
[[Page 56705]]
FOR FURTHER INFORMATION CONTACT: Elizabeth Withnell, Assistant General
Counsel, Privacy and Civil Liberties Unit, Office of the General
Counsel, Federal Bureau of Investigation, (202) 324-3396.
SUPPLEMENTARY INFORMATION: In the notice section of today's Federal
Register, the FBI proposes a new Privacy Act system of records, the
``Law Enforcement National Data Exchange (N-DEx), FBI-020.'' The N-DEx
is a scalable information sharing system, operating under the aegis of
the Criminal Justice Information Services (CJIS) Division, which will
provide the capability to make potential linkages between crime
incidents, criminal investigations, arrests, bookings, incarcerations,
and parole and/or probation in order to help solve, deter, and prevent
crimes and, in the process, enhance homeland security.
In this rulemaking, the FBI proposes to exempt this Privacy Act
system of records from certain provisions of the Privacy Act because
the system contains investigatory material compiled for law enforcement
purposes.
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, 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/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), 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.
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, 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 793-78, it is
proposed to amend 28 CFR part 16 as follows:
PART 16--[AMENDED]
Subpart E--Exemption of Records Systems Under the Privacy Act
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.
2. Section 16.96 is amended to add new paragraphs (t) and (u) as
follows:
Sec. 16.96 Exemption of Federal Bureau of Investigation Systems--
limited access.
* * * * *
(t) 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) of the Privacy Act:
(1) Law Enforcement National Data Exchange (N-DEx), (JUSTICE/FBI-
020).
(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).
Where compliance would not appear to interfere with or adversely affect
the law enforcement purposes of this system, or the overall law
enforcement process, the applicable exemption may be waived by the FBI
in its sole discretion.
(u) Exemptions from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3) 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. 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) 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
[[Page 56706]]
concern individual access to and amendment of investigatory records,
compliance with which could alert the subject of an investigation of
the fact and nature of the investigation, and/or the investigative
interest of the FBI and other law enforcement agencies; 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; 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. Amendment of these records would interfere with ongoing
investigations and other 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 law
enforcement purposes and, in fact, a major tenet of the N-DEx
information sharing system is that the relevance of certain information
may not always be evident in the absence of the ability to correlate
that information with other existing law enforcement data.
(5) From subsection (e)(2) because application of this provision
could present a serious impediment to efforts to solve crimes and
improve homeland security in that it would put the subject of an
investigation on notice of that fact, thereby permitting the subject to
engage in conduct intended to frustrate or impede that activity.
(6) From subsection (e)(3) because disclosure would put the subject
of an investigation on notice of that fact and would permit the subject
to engage in conduct intended to thwart that activity.
(7) (i) From subsection (e)(5) because many of the records in this
system are records contributed by other agencies and the restrictions
imposed by (e)(5) would limit the utility of the N-DEx system. All data
contributors are expected to ensure that information they share is
relevant, timely, complete and accurate. In fact, rules for use of the
N-DEx system will require that information be updated periodically and
not be used as a basis for action or disseminated beyond the recipient
without the recipient first obtaining permission from the record owner/
contributor. These rules will be enforced through robust audit
procedures. The existence of these rules should ameliorate any
perceived concerns about the integrity of the information in the N-DEx
system. Nevertheless, exemption from this provision is warranted in
order to reduce the administrative burden on the FBI to vouch for
compliance with the provision by all N-DEx data contributors and to
encourage those contributors to share information the significance of
which may only become apparent when combined with other information in
the N-DEx system.
(ii) The FBI is also exempting the N-DEx from subsection (e)(5) in
order to block the use of a challenge under subsection (e)(5) as a
collateral means to obtain access to records in the N-DEx. The FBI has
exempted these records from the access and amendment requirements of
subsection (d) of the Privacy Act in order to protect the integrity of
law enforcement investigations. Exempting the N-DEx system from
subsection (e)(5) complements this exemption and will provide the FBI
with the ability to prevent the assertion of challenges to a record's
accuracy, timeliness, completeness and/or relevance under subsection
(e)(5) to circumvent the exemption claimed from subsection (d).
(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 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: September 25, 2007.
Lee J. Lofthus,
Assistant Attorney General for Administration.
[FR Doc. E7-19458 Filed 10-3-07; 8:45 am]
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