83_FR_14816 83 FR 14749 - Privacy Act of 1974; Implementation

83 FR 14749 - Privacy Act of 1974; Implementation

DEPARTMENT OF JUSTICE

Federal Register Volume 83, Issue 67 (April 6, 2018)

Page Range14749-14751
FR Document2018-07056

The Federal Bureau of Investigation (FBI), a component of the United States Department of Justice (DOJ or Department), is finalizing without change its Privacy Act exemption regulations for the system of records titled, ``FBI Online Collaboration Systems,'' JUSTICE/FBI-004, which were published as Notice of Proposed Rulemaking (NPRM) on December 4, 2017. Specifically, the FBI exempts the records maintained in JUSTICE/FBI-004 from one or more provisions of the Privacy Act. The exemptions are necessary to avoid interference with the FBI's law enforcement and national security functions and responsibilities. The Department received only one substantive comment on the proposed rule.

Federal Register, Volume 83 Issue 67 (Friday, April 6, 2018)
[Federal Register Volume 83, Number 67 (Friday, April 6, 2018)]
[Rules and Regulations]
[Pages 14749-14751]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-07056]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 001-2018]


Privacy Act of 1974; Implementation

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Bureau of Investigation (FBI), a component of the

[[Page 14750]]

United States Department of Justice (DOJ or Department), is finalizing 
without change its Privacy Act exemption regulations for the system of 
records titled, ``FBI Online Collaboration Systems,'' JUSTICE/FBI-004, 
which were published as Notice of Proposed Rulemaking (NPRM) on 
December 4, 2017. Specifically, the FBI exempts the records maintained 
in JUSTICE/FBI-004 from one or more provisions of the Privacy Act. The 
exemptions are necessary to avoid interference with the FBI's law 
enforcement and national security functions and responsibilities. The 
Department received only one substantive comment on the proposed rule.

DATES: This final rule is effective May 7, 2018.

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

SUPPLEMENTARY INFORMATION: 

Background

    On December 4, 2017, the FBI published in the Federal Register a 
System of Records Notice (SORN) for an FBI system of records titled, 
``FBI Online Collaboration Systems,'' JUSTICE/FBI-004, 82 FR 57291. On 
the same day, the FBI published a Notice of Proposed Rulemaking (NPRM) 
proposing to exempt records maintained in JUSTICE/FBI-004 from certain 
provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k), and 
inviting public comment on the proposed exemptions. 82 FR 57181. The 
comment period was open through January 3, 2018. DOJ received only one 
substantive comment responsive to the proposed exemptions. That comment 
supported the proposed exemptions in order to protect the safety of law 
enforcement officers and better enable them to conduct their 
investigations. After consideration of this public comment, exemptions 
necessary to protect the ability of the FBI properly to engage in its 
law enforcement and national security functions have been codified in 
this final rule as proposed in the NPRM.

Response to Public Comments

    In its Online Collaboration Systems NPRM and SORN, both published 
on December 4, 2017, the Department invited public comment. The comment 
periods for both documents closed January 3, 2018. The Department 
received six total comments, only one of which contained any substance 
related to the SORN or NPRM. The one responsive comment received stated 
that the submitter agreed the exemptions proposed in the NPRM are 
needed for effective law enforcement. The FBI has considered, and 
agrees with, this comment. Because no other responsive comments were 
submitted, and because the FBI continues to assert the rationales in 
support of the exemptions as stated in the NPRM, the FBI adopts in this 
final rule the exemptions and rationales proposed in the NPRM.

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
Principles of Regulation, and Executive Order 13563 ``Improving 
Regulation and Regulatory Review'' section 1(b), General Principles of 
Regulation.
    The Department of Justice has determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and accordingly this rule has not been reviewed by the Office of 
Information and Regulatory Affairs within the Office of Management and 
Budget pursuant to Executive Order 12866.

Regulatory Flexibility Act

    This rule will only impact Privacy Act-protected records, which are 
personal and generally do not apply to an individual's entrepreneurial 
capacity, subject to limited exceptions. Accordingly, the Chief Privacy 
and Civil Liberties Officer, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by 
approving it certifies that this regulation will not have a significant 
economic impact on a substantial number of small entities.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
drafting errors and ambiguity, minimize litigation, provide a clear 
legal standard for affected conduct, and promote simplification and 
burden reduction..

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    This rule will have no implications for Indian Tribal governments. 
More specifically, it does not have substantial direct effects on one 
or more Indian tribes, on the relationship between the Federal 
government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes. 
Therefore, the consultation requirements of Executive Order 13175 do 
not apply.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000, as adjusted for inflation, or more in any one year, and 
it will not significantly or uniquely affect small governments. 
Therefore, no actions were deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995.

Congressional Review Act

    This rule is not a major rule as defined by 5 U.S.C. 804 of the 
Congressional Review Act.

Paperwork Reduction Act

    This rule imposes no information collection or recordkeeping 
requirements.

List of Subjects in 28 CFR Part 16

    Administrative practice and procedure, Courts, Freedom of 
information, 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, 28 
CFR part 16 is 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:

[[Page 14751]]

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

* * * * *
    (x) 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), 
(4)(G), (H), and (I), (5), and (8); (f); and (g):
    (1) The 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 subsections (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 with such provisions 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 rights 
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 has been fully assessed that its relevancy 
and necessity in a specific investigative activity can be determined.
    (5) From subsections (e)(2) and (3) because application of these 
provisions requiring collection directly from the 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 could put 
the subject of an investigation on notice of the existence of the 
investigation and allow the subject an opportunity to engage in conduct 
intended to obstruct or otherwise impede that activity or take steps to 
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 often 
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 thus 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 apply their own 
procedures and foster relationships with their partners to further this 
interest.

    Dated: April 2, 2018.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer.
[FR Doc. 2018-07056 Filed 4-5-18; 8:45 am]
 BILLING CODE 4410-02-P



                                                                   Federal Register / Vol. 83, No. 67 / Friday, April 6, 2018 / Rules and Regulations                                              14749

                                             The Regulatory Amendment                                unnamed road known locally as Sea Isle                   (16) Proceed west, then northwest,
                                                For the reasons discussed in the                     Boulevard; then                                       then northeast along the shoreline,
                                             preamble, TTB amends title 27, chapter                     (2) Proceed northwesterly along Sea                rounding Cape May Point, and
                                             I, part 9, Code of Federal Regulations, as              Isle Boulevard to the intersection of the             continuing northeasterly along the
                                             follows:                                                road with U.S. Highway 9; then                        shoreline, crossing onto the Rio Grande
                                                                                                        (3) Proceed southwesterly along U.S.               quadrangle, then onto the Heislerville
                                             PART 9—AMERICAN VITICULTURAL                            Highway 9 to the intersection of the                  quadrangle, to the intersection of the
                                             AREAS                                                   highway with the 10-foot elevation                    shoreline with West Creek; then
                                                                                                     contour south of Magnolia Lake; then                     (17) Proceed generally north along the
                                             ■ 1. The authority citation for part 9                     (4) Proceed generally southwesterly                meandering West Creek, passing
                                             continues to read as follows:                           along the meandering 10-foot elevation                through Pickle Factory Pond and Hands
                                                 Authority: 27 U.S.C. 205.                           contour, crossing onto the Woodbine                   Millpond, and continuing along West
                                                                                                     quadrangle, then briefly back onto the                Creek, crossing onto the Port Elizabeth
                                             Subpart C—Approved American                             Sea Isle City quadrangle, then back onto              quadrangle, and continuing along West
                                             Viticultural Areas                                      the Woodbine quadrangle, to the                       Creek to the fork in the creek north of
                                                                                                     intersection of the 10-foot elevation                 Wrights Crossway Road; then
                                             ■ 2. Subpart C is amended by adding                     contour with the western span of the                     (18) Proceed along the eastern fork of
                                             § 9.262 to read as follows:                             Garden State Parkway east of Clermont;                West Creek to the cranberry bog; then
                                                                                                                                                              (19) Proceed through the cranberry
                                             § 9.262   Cape May Peninsula.                           then
                                                                                                                                                           bog and continue northeasterly along
                                                                                                        (5) Proceed southwest along the
                                                (a) Name. The name of the viticultural                                                                     the branch of West Creek that exits the
                                                                                                     Garden State Parkway to the
                                             area described in this section is ‘‘Cape                                                                      cranberry bog to the creek’s terminus
                                                                                                     intersection of the road with Uncle
                                             May Peninsula’’. For purposes of part 4                                                                       south of an unnamed road known
                                                                                                     Aarons Creek; then
                                             of this chapter, ‘‘Cape May Peninsula’’                                                                       locally as Joe Mason Road; then
                                                                                                        (6) Proceed westerly (upstream) along                 (20) Proceed northeast in a straight
                                             is a term of viticultural significance.
                                                                                                     Uncle Aarons Creek to the intersection                line to Tarkiln Brook Tributary; then
                                                (b) Approved maps. The 11 United
                                                                                                     of the creek with the 10-foot elevation                  (21) Proceed easterly along Tarkiln
                                             States Geological Survey (USGS)
                                                                                                     contour near the headwaters of the                    Brook Tributary, passing through the
                                             1:24,000 scale topographic maps used to
                                                                                                     creek; then                                           cranberry bog, crossing onto the
                                             determine the boundary of the Cape
                                             May Peninsula viticultural area are                        (7) Proceed easterly, then                         Tuckahoe quadrangle, and continuing
                                             titled:                                                 southwesterly along the 10-foot                       along Tarkiln Brook tributary to its
                                                (1) Ocean City, New Jersey, 1989;                    elevation contour, crossing onto the                  intersection with the Tuckahoe River
                                                (2) Marmora, New Jersey, 1989;                       Stone Harbor quadrangle, then onto the                and the Atlantic-Cape May County line;
                                                (3) Sea Isle City, New Jersey, 1952;                 northwesternmost corner of the                        then
                                             photorevised, 1972;                                     Wildwood quadrangle, then onto Cape                      (22) Proceed easterly along the
                                                (4) Woodbine, New Jersey, 1958;                      May quadrangle, to the intersection of                Atlantic-Cape May County line, crossing
                                             photorevised, 1972;                                     the 10-foot elevation contour with State              onto the Marmora and Cape May
                                                (5) Stone Harbor, New Jersey, 1955;                  Route 109 and Benchmark (BM) 8, east                  quadrangles, to the intersection of the
                                             photorevised, 1972;                                     of Cold Spring; then                                  Atlantic-Cape May County line with the
                                                (6) Wildwood, New Jersey, 1955;                         (8) Proceed southeast, then south,                 Garden State Parkway on the Cape May
                                             photorevised, 1972;                                     along State Route 109 to the intersection             quadrangle; then
                                                (7) Cape May, New Jersey, 1954;                      of the road with the north bank of the                   (23) Proceed south along the Garden
                                             photorevised, 1972;                                     Cape May Canal; then                                  State Parkway, returning to the
                                                (8) Rio Grande, New Jersey, 1956;                       (9) Proceed northwest along the north              beginning point.
                                             photorevised, 1972;                                     bank of the Cape May Canal to the                       Signed: October 30, 2017.
                                                (9) Heislerville, New Jersey, 1957;                  intersection of the canal with the                    John J. Manfreda,
                                             photorevised, 1972;                                     railroad tracks (Pennsylvania Reading                 Administrator.
                                                (10) Port Elizabeth, New Jersey, 1956;               Seashore Lines); then
                                                                                                                                                             Approved: March 30, 2018
                                             photorevised, 1972; and                                    (10) Proceed south along the railroad
                                                                                                                                                           Timothy E. Skud,
                                                (11) Tuckahoe, New Jersey, 1956;                     tracks, crossing the canal, to the
                                                                                                     intersection of the railroad tracks with              Deputy Assistant Secretary (Tax, Trade, and
                                             photorevised, 1972.                                                                                           Tariff Policy).
                                                (c) Boundary. The Cape May                           the south bank of the Cape May Canal;
                                                                                                                                                           [FR Doc. 2018–07094 Filed 4–5–18; 8:45 am]
                                             Peninsula viticultural area is located in               then
                                                                                                        (11) Proceed east along the canal bank             BILLING CODE 4810–31–P
                                             Cape May and Cumberland Counties,
                                             New Jersey. The boundary of the Cape                    to the intersection of the canal with
                                             May Peninsula viticultural area is as                   Cape Island Creek; then
                                             described below:                                           (12) Proceed south, then northwest                 DEPARTMENT OF JUSTICE
                                                (1) The beginning point is on the                    along the creek to the intersection of the
                                                                                                                                                           28 CFR Part 16
                                             Ocean City quadrangle at the                            creek with a tributary running north-
                                             intersection of the 10-foot elevation                   south west of an unnamed road known                   [CPCLO Order No. 001–2018]
                                             contour and the Garden State Parkway,                   locally as 1st Avenue; then
                                             on the southern shore of Great Egg                         (13) Proceed north along the tributary             Privacy Act of 1974; Implementation
                                             Harbor, northwest of Golders Point.                     to its intersection with Sunset
daltland on DSKBBV9HB2PROD with RULES




                                                                                                                                                           AGENCY:   Federal Bureau of
                                             Proceed southeast, then generally                       Boulevard; then                                       Investigation, United States Department
                                             southwest along the meandering 10-foot                     (14) Proceed northwest along Sunset                of Justice.
                                             elevation contour, crossing onto the                    Boulevard to the intersection of the road             ACTION: Final rule.
                                             Marmora quadrangle, then onto the Sea                   with Benchmark (BM) 6; then
                                             Isle City quadrangle, to the intersection                  (15) Proceed south in a straight line to           SUMMARY:   The Federal Bureau of
                                             of the 10-foot elevation contour with an                the shoreline; then                                   Investigation (FBI), a component of the


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                                             14750                 Federal Register / Vol. 83, No. 67 / Friday, April 6, 2018 / Rules and Regulations

                                             United States Department of Justice                     to the SORN or NPRM. The one                          eliminate drafting errors and ambiguity,
                                             (DOJ or Department), is finalizing                      responsive comment received stated                    minimize litigation, provide a clear legal
                                             without change its Privacy Act                          that the submitter agreed the                         standard for affected conduct, and
                                             exemption regulations for the system of                 exemptions proposed in the NPRM are                   promote simplification and burden
                                             records titled, ‘‘FBI Online                            needed for effective law enforcement.                 reduction..
                                             Collaboration Systems,’’ JUSTICE/FBI–                   The FBI has considered, and agrees                    Executive Order 13175—Consultation
                                             004, which were published as Notice of                  with, this comment. Because no other                  and Coordination With Indian Tribal
                                             Proposed Rulemaking (NPRM) on                           responsive comments were submitted,                   Governments
                                             December 4, 2017. Specifically, the FBI                 and because the FBI continues to assert
                                             exempts the records maintained in                       the rationales in support of the                         This rule will have no implications
                                             JUSTICE/FBI–004 from one or more                        exemptions as stated in the NPRM, the                 for Indian Tribal governments. More
                                             provisions of the Privacy Act. The                      FBI adopts in this final rule the                     specifically, it does not have substantial
                                             exemptions are necessary to avoid                       exemptions and rationales proposed in                 direct effects on one or more Indian
                                             interference with the FBI’s law                         the NPRM.                                             tribes, on the relationship between the
                                             enforcement and national security                                                                             Federal government and Indian tribes,
                                             functions and responsibilities. The                     Executive Orders 12866 and 13563—                     or on the distribution of power and
                                             Department received only one                            Regulatory Review                                     responsibilities between the Federal
                                             substantive comment on the proposed                        This regulation has been drafted and               government and Indian tribes.
                                             rule.                                                   reviewed in accordance with Executive                 Therefore, the consultation
                                             DATES: This final rule is effective May 7,              Order 12866, ‘‘Regulatory Planning and                requirements of Executive Order 13175
                                             2018.                                                   Review’’ section 1(b), Principles of                  do not apply.
                                                                                                     Regulation, and Executive Order 13563                 Unfunded Mandates Reform Act of
                                             FOR FURTHER INFORMATION CONTACT:
                                                                                                     ‘‘Improving Regulation and Regulatory                 1995
                                             Katherine M. Bond, Assistant General
                                                                                                     Review’’ section 1(b), General Principles
                                             Counsel, Privacy and Civil Liberties                                                                            This rule will not result in the
                                                                                                     of Regulation.
                                             Unit, Office of the General Counsel, FBI,                                                                     expenditure by State, local and tribal
                                                                                                        The Department of Justice has
                                             Washington DC, telephone 202–324–                                                                             governments, in the aggregate, or by the
                                                                                                     determined that this rule is not a
                                             3000.                                                                                                         private sector, of $100,000,000, as
                                                                                                     ‘‘significant regulatory action’’ under
                                             SUPPLEMENTARY INFORMATION:                              Executive Order 12866, section 3(f), and              adjusted for inflation, or more in any
                                                                                                     accordingly this rule has not been                    one year, and it will not significantly or
                                             Background                                                                                                    uniquely affect small governments.
                                                                                                     reviewed by the Office of Information
                                                On December 4, 2017, the FBI                         and Regulatory Affairs within the Office              Therefore, no actions were deemed
                                             published in the Federal Register a                     of Management and Budget pursuant to                  necessary under the provisions of the
                                             System of Records Notice (SORN) for an                  Executive Order 12866.                                Unfunded Mandates Reform Act of
                                             FBI system of records titled, ‘‘FBI                                                                           1995.
                                             Online Collaboration Systems,’’                         Regulatory Flexibility Act
                                             JUSTICE/FBI–004, 82 FR 57291. On the                                                                          Congressional Review Act
                                                                                                       This rule will only impact Privacy
                                             same day, the FBI published a Notice of                 Act-protected records, which are                        This rule is not a major rule as
                                             Proposed Rulemaking (NPRM)                              personal and generally do not apply to                defined by 5 U.S.C. 804 of the
                                             proposing to exempt records maintained                  an individual’s entrepreneurial                       Congressional Review Act.
                                             in JUSTICE/FBI–004 from certain                         capacity, subject to limited exceptions.              Paperwork Reduction Act
                                             provisions of the Privacy Act pursuant                  Accordingly, the Chief Privacy and Civil
                                             to 5 U.S.C. 552a(j) and (k), and inviting               Liberties Officer, in accordance with the               This rule imposes no information
                                             public comment on the proposed                          Regulatory Flexibility Act (5 U.S.C.                  collection or recordkeeping
                                             exemptions. 82 FR 57181. The comment                    605(b)), has reviewed this regulation                 requirements.
                                             period was open through January 3,                      and by approving it certifies that this               List of Subjects in 28 CFR Part 16
                                             2018. DOJ received only one substantive                 regulation will not have a significant                  Administrative practice and
                                             comment responsive to the proposed                      economic impact on a substantial                      procedure, Courts, Freedom of
                                             exemptions. That comment supported                      number of small entities.                             information, Privacy Act.
                                             the proposed exemptions in order to
                                             protect the safety of law enforcement                   Executive Order 13132—Federalism                        Pursuant to the authority vested in the
                                             officers and better enable them to                         This regulation will not have                      Attorney General by 5 U.S.C. 552a and
                                             conduct their investigations. After                     substantial direct effects on the States,             delegated to me by Attorney General
                                             consideration of this public comment,                   on the relationship between the national              Order 2940–2008, 28 CFR part 16 is
                                             exemptions necessary to protect the                     government and the States, or on                      amended as follows:
                                             ability of the FBI properly to engage in                distribution of power and                             PART 16—PRODUCTION OR
                                             its law enforcement and national                        responsibilities among the various                    DISCLOSURE OF MATERIAL OR
                                             security functions have been codified in                levels of government. Therefore, in                   INFORMATION
                                             this final rule as proposed in the NPRM.                accordance with Executive Order 13132,
                                                                                                     it is determined that this rule does not              ■ 1. The authority citation for part 16
                                             Response to Public Comments
                                                                                                     have sufficient federalism implications               continues to read as follows:
                                               In its Online Collaboration Systems                   to warrant the preparation of a
                                             NPRM and SORN, both published on                                                                                Authority: 5 U.S.C. 301, 552, 552a, 553; 28
daltland on DSKBBV9HB2PROD with RULES




                                                                                                     Federalism Assessment.                                U.S.C. 509, 510, 534; 31 U.S.C. 3717.
                                             December 4, 2017, the Department
                                             invited public comment. The comment                     Executive Order 12988—Civil Justice
                                                                                                     Reform                                                Subpart E—Exemption of Records
                                             periods for both documents closed                                                                             Systems Under the Privacy Act
                                             January 3, 2018. The Department                           This regulation meets the applicable
                                             received six total comments, only one of                standards set forth in sections 3(a) and              ■ 2. Amend § 16.96 by adding
                                             which contained any substance related                   3(b)(2) of Executive Order 12988 to                   paragraphs (x) and (y) to read as follows:


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                                                                   Federal Register / Vol. 83, No. 67 / Friday, April 6, 2018 / Rules and Regulations                                              14751

                                             § 16.96 Exemption of Federal Bureau of                  its sole discretion, agrees to permit                 already been published in the Federal
                                             Investigation Systems-limited access.                   amendment or correction of FBI records,               Register through the SORN
                                             *      *      *     *     *                             it will share that information in                     documentation. Should the subsection
                                                (x) The following system of records is               appropriate cases.                                    be so interpreted, exemption from this
                                             exempt from 5 U.S.C. 552a(c)(3) and (4);                   (3) From subsections (d)(1), (2), (3),             provision is necessary to protect the
                                             (d)(1), (2), (3), and (4); (e)(1), (2), (3),            and (4); (e)(4)(G) and (H); (e)(8); (f); and          sources of law enforcement and
                                             (4)(G), (H), and (I), (5), and (8); (f); and            (g) because these provisions concern                  intelligence information and to protect
                                             (g):                                                    individual access to and amendment of                 the privacy and safety of witnesses and
                                                (1) The FBI Online Collaboration                     law enforcement and intelligence                      informants and others who provide
                                             Systems (JUSTICE/FBI–004).                              records and compliance with such                      information to the FBI.
                                                (2) These exemptions apply only to                   provisions could alert the subject of an                 (7) From subsection (e)(5) because in
                                             the extent that information in this                     authorized law enforcement or                         the collection of information for
                                             system is subject to exemption pursuant                 intelligence activity about that                      authorized law enforcement and
                                             to 5 U.S.C. 552a(j) or (k). Where the FBI               particular activity and the investigative             intelligence purposes it is often
                                             determines compliance with an                           interest of the FBI and/or other law                  impossible to determine in advance
                                             exempted provision would not appear                     enforcement or intelligence agencies.                 what information is accurate, relevant,
                                             to interfere with or adversely affect                   Providing access rights could                         timely, and complete. With time,
                                             interests of the United States or other                 compromise sensitive law enforcement                  additional facts, or analysis, information
                                             system stakeholders, the FBI in its sole                information, disclose information that                may acquire new significance. The
                                             discretion may waive an exemption in                    could constitute an unwarranted                       restrictions imposed by subsection (e)(5)
                                             whole or in part; exercise of this                      invasion of another’s personal privacy;               would thus limit the ability of trained
                                             discretionary waiver prerogative in a                   reveal a sensitive investigative or                   investigators and intelligence analysts to
                                             particular matter shall not create any                  intelligence technique; provide                       exercise their judgment in reporting on
                                             entitlement to or expectation of waiver                 information that would allow a subject                investigations and impede the
                                             in that matter or any other matter. As a                to avoid detection or apprehension; or                development of criminal intelligence
                                             condition of discretionary waiver, the                  constitute a potential danger to the                  necessary for effective law enforcement.
                                             FBI in its sole discretion may impose                   health or safety of law enforcement                   Although the FBI has claimed this
                                             any restrictions deemed advisable by                    personnel, confidential sources, and                  exemption, it continuously works with
                                             the FBI (including, but not limited to,                 witnesses. The FBI takes seriously its                its federal, state, local, tribal, and
                                             restrictions on the location, manner, or                obligation to maintain accurate records               international partners to maintain the
                                             scope of notice, access or amendment).                  despite its assertion of this exemption,
                                                (y) Exemptions from the particular                                                                         accuracy of records to the greatest extent
                                                                                                     and to the extent it, in its sole                     practicable. The FBI does so with
                                             subsections are justified for the                       discretion, agrees to permit amendment
                                             following reasons:                                                                                            established policies and practices. The
                                                                                                     or correction of FBI records, it will share           criminal justice and national security
                                                (1) From subsection (c)(3), the                      that information in appropriate cases
                                             requirement that an accounting be made                                                                        communities have a strong operational
                                                                                                     with subjects of the information.                     interest in using up-to-date and accurate
                                             available to the named subject of a                        (4) From subsection (e)(1) because it
                                             record, because this system is exempt                                                                         records and will apply their own
                                                                                                     is not always possible to know in
                                             from the access provisions of subsection                                                                      procedures and foster relationships with
                                                                                                     advance what information is relevant
                                             (d). Also, because making available to a                                                                      their partners to further this interest.
                                                                                                     and necessary for law enforcement and
                                             record subject the accounting of                        intelligence purposes. Relevance and                    Dated: April 2, 2018.
                                             disclosures from records concerning                     necessity are questions of judgment and               Peter A. Winn,
                                             him/her would specifically reveal any                   timing. For example, what appears                     Acting Chief Privacy and Civil Liberties
                                             law enforcement or national security                    relevant and necessary when collected                 Officer.
                                             investigative interest in the individual                ultimately may be deemed unnecessary.                 [FR Doc. 2018–07056 Filed 4–5–18; 8:45 am]
                                             by the FBI or agencies that are recipients              It is only after information has been                 BILLING CODE 4410–02–P
                                             of the disclosures. Revealing this                      fully assessed that its relevancy and
                                             information could compromise ongoing,                   necessity in a specific investigative
                                             authorized law enforcement and                          activity can be determined.                           DEPARTMENT OF HOMELAND
                                             intelligence efforts, particularly efforts                 (5) From subsections (e)(2) and (3)                SECURITY
                                             to identify and defuse any potential acts               because application of these provisions
                                             of terrorism or other potential violations              requiring collection directly from the                Coast Guard
                                             of criminal law. Revealing this                         subject individuals and informing
                                             information could also permit the                       individuals regarding information to be               33 CFR Part 100
                                             record subject to obtain valuable insight               collected about them could present a
                                             concerning the information obtained                     serious impediment to efforts to solve                [Docket No. USCG–2018–0156]
                                             during any investigation and to take                    crimes and improve national security.                 Special Local Regulation; California
                                             measures to circumvent the                              Application of these provisions could                 Half Ironman Triathlon, Oceanside, CA
                                             investigation (e.g. destroy evidence or                 put the subject of an investigation on
                                             flee the area to avoid investigation).                  notice of the existence of the                        AGENCY:  Coast Guard, DHS.
                                                (2) From subsection (c)(4) notification              investigation and allow the subject an                ACTION: Notice of enforcement of
                                             requirements because this system is                     opportunity to engage in conduct                      regulation.
                                             exempt from the access and amendment
daltland on DSKBBV9HB2PROD with RULES




                                                                                                     intended to obstruct or otherwise
                                             provisions of subsection (d) as well as                 impede that activity or take steps to                 SUMMARY:   The Coast Guard will enforce
                                             the accounting disclosures provision of                 avoid apprehension.                                   the special local regulations on the
                                             subsection (c)(3). The FBI takes                           (6) From subsection (e)(4)(I), to the              waters offshore Oceanside and within
                                             seriously its obligation to maintain                    extent that this subsection is interpreted            Oceanside Harbor, California during the
                                             accurate records despite its assertion of               to require more detail regarding the                  California Half Ironman Triathlon from
                                             this exemption, and to the extent it, in                record sources in this system than has                6:30 a.m. to 8:40 a.m. on April 7, 2018.


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Document Created: 2018-11-01 09:15:52
Document Modified: 2018-11-01 09:15:52
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis final rule is effective May 7, 2018.
ContactKatherine M. Bond, Assistant General Counsel, Privacy and Civil Liberties Unit, Office of the General Counsel, FBI, Washington DC, telephone 202-324-3000.
FR Citation83 FR 14749 
CFR AssociatedAdministrative Practice and Procedure; Courts; Freedom of Information and Privacy Act

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