[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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