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[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

[[Page 40540]]

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).

[[Page 40541]]

    (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]
BILLING CODE 4410-02-P
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