[Federal Register Volume 82, Number 231 (Monday, December 4, 2017)]
[Proposed Rules]
[Pages 57181-57183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25993]



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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 011-2017]


Privacy Act of 1974; Implementation

AGENCY: Federal Bureau of Investigation, United States Department of 
Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In the Notice section of today's Federal Register, the Federal 
Bureau of Investigation (FBI), a component of the Department of Justice 
(Department or DOJ), has published a notice of a new Privacy Act system 
of records, ``FBI Online Collaboration Systems,'' JUSTICE/FBI-004. In 
this notice of proposed rulemaking, the FBI proposes to exempt this 
system of records from certain provisions of the Privacy Act in order 
to prevent interference with the national security and criminal law 
enforcement functions and responsibilities of the FBI and its partners. 
For the reasons provided below, the Department proposes to amend its 
Privacy Act regulations by establishing an exemption for records in 
this system from certain provisions of the Privacy Act. Public comment 
is invited.

DATES: Comments must be received by January 3, 2018.

ADDRESSES: You may send comments by any of the following methods:
     Email: [email protected]. To ensure proper 
handling, please reference the CPCLO Order No. in the subject line of 
the message.
     Fax: 202-307-0693. To ensure proper handling, please 
reference the CPCLO Order No. on the cover page of the fax.
     Mail: United States Department of Justice, Office of 
Privacy and Civil Liberties, ATTN: Privacy Analyst, National Place 
Building, 1331 Pennsylvania Avenue NW., Suite 1000, Washington, DC 
20530. All comments sent via regular or express mail will be considered 
timely if postmarked on the day the comment period closes. To ensure 
proper handling, please reference the CPCLO Order No. in your 
correspondence.
     Federal eRulemaking Portal: http://www.regulations.gov. 
When submitting comments electronically, you must 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.
    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 personal identifying information 
(such as your 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 personal identifying 
information that 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, may 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 CONTACT paragraph, below.

FOR FURTHER INFORMATION CONTACT: Katherine M. Bond, Assistant General 
Counsel, Privacy and Civil Liberties Unit, Office of the General 
Counsel, FBI, 935 Pennsylvania Avenue NW., Washington, DC 20535-0001, 
telephone 202-324-3000.

SUPPLEMENTARY INFORMATION:

FBI Online Collaboration Systems

    In the Notice section of today's Federal Register, the FBI has 
established a new Privacy Act system of records, ``FBI Online 
Collaboration Systems,'' JUSTICE/FBI-004. The FBI's Online 
Collaboration Systems will promote communication and information 
sharing for federal, state, local, tribal, territorial, foreign, and 
international criminal justice agencies, emergency management personnel 
and first responders, and private sector partners as well as military 
and other government personnel involved in law enforcement and national 
security matters, by allowing the FBI and its partners to communicate 
with experts, create and join communities of common interest, create 
blogs to present ideas and receive feedback, share files with 
colleagues, exchange ideas through online forums, enhance situational 
awareness, and facilitate incident management. By providing online 
communication platforms such as JusticeConnect, collaboration tools 
such as Special Interest Groups and Virtual Command Centers, and 
providing and maintaining a secure communications network, the FBI will 
increase collaboration and cooperation between and among its partners. 
In this rulemaking, the FBI proposes to exempt this Privacy Act system 
of records from certain provisions of the Privacy Act in order to 
prevent interference with the responsibilities of the FBI and its 
partners to detect, deter, and prosecute crimes and to protect the 
national security.

Regulatory Flexibility Act

    This proposed rule relates to individuals rather than small 
business entities. Pursuant to the requirements of the Regulatory 
Flexibility Act of 1980, 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 of 1996 (Subtitle E-
Congressional Review 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 
the FOR FURTHER INFORMATION CONTACT paragraph, above. Persons can 
obtain further information regarding SBREFA on the Small

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Business Administration's Web page at http://www.sba.gov/advo/archive/sum_sbrefa.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. 
The records that are contributed to this system are created by the FBI 
or other law enforcement and governmental entities. Sharing of this 
information electronically will not increase the paperwork burden on 
the public.

Analysis of Regulatory Impacts

    This proposed rule is not a ``significant regulatory action'' 
within the meaning of Executive Order 12866 and therefore further 
regulatory evaluation is not necessary. This proposed rule will not 
have a significant economic impact on a substantial number of small 
entities because it applies only to information about individuals.

Unfunded Mandates Reform Act of 1995

    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. 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.

List of Subjects in 28 CFR Part 16

    Administrative practice and procedure, Courts, Freedom of 
information, Privacy.

    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, 28 
CFR part 16 is proposed to be amended as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

0
1. The authority citation for part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 
534; 31 U.S.C. 3717.

Subpart E--Exemption of Records Systems Under the Privacy Act

0
2. Amend Sec.  16.96 by adding paragraphs (x) and (y) to read as 
follows:


Sec.  16.96  Exemption of Federal Bureau of Investigation Systems-
limited access.

* * * * *
    (x) The Federal Bureau of Investigation Online Collaboration 
Systems (JUSTICE/FBI-004) system of records is exempted from 
subsections 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 Online Collaboration Systems, (JUSTICE/FBI-004).
    (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) or 
(k). Where the FBI determines compliance with an exempted provision 
would not appear to interfere with or adversely affect interests of the 
United States or other system stakeholders, the FBI 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 FBI in 
its sole discretion may impose any restrictions deemed advisable by the 
FBI (including, but not limited to, restrictions on the location, 
manner, or scope of notice, access or amendment).
    (y) 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 (e.g., destroy evidence or flee the 
area to avoid 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 disclosures provision of subsection 
(c)(3). 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.
    (3) From subsection (d)(1), (2), (3), and (4), (e)(4)(G) and (H), 
(e)(8), (f) and (g) because these provisions concern individual access 
to and amendment of law enforcement and intelligence 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 law 
enforcement information, disclose information that could constitute an 
unwarranted invasion of another's personal privacy; reveal a sensitive 
investigative or intelligence technique; 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. Relevance and necessity are 
questions of judgment and timing. For example, what appears relevant 
and necessary when collected ultimately may be deemed unnecessary. It 
is only after information is assessed that its relevancy and necessity 
in a specific investigative activity can be established.
    (5) From subsections (e)(2) and (3) because application of these 
provisions requiring collection directly from the

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subject individuals and informing individuals regarding information to 
be collected about them, 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 already been published in the Federal Register 
through the SORN documentation. 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.
    (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, additional facts, or 
analysis, information may acquire new significance. The restrictions 
imposed by subsection (e)(5) would limit the ability of trained 
investigators and intelligence analysts to exercise their judgment in 
reporting on investigations and impede the development of criminal 
intelligence necessary for effective law enforcement. Although the FBI 
has claimed this exemption, it continuously works with its federal, 
state, local, tribal, and international partners to maintain the 
accuracy of records to the greatest extent practicable. The FBI does so 
with established policies and practices. The criminal justice and 
national security communities have a strong operational interest in 
using up-to-date and accurate records and will foster relationships 
with partners to further this interest.

    Dated: November 28, 2017.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States 
Department of Justice.
[FR Doc. 2017-25993 Filed 12-1-17; 8:45 am]
 BILLING CODE 4410-02-P