[Federal Register Volume 70, Number 144 (Thursday, July 28, 2005)]
[Proposed Rules]
[Pages 43661-43663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14850]


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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

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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]
BILLING CODE 4410-02-P