[Federal Register Volume 75, Number 168 (Tuesday, August 31, 2010)]
[Proposed Rules]
[Pages 53262-53264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21247]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 75, No. 168 / Tuesday, August 31, 2010 /
Proposed Rules
[[Page 53262]]
DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 004-2010]
Privacy Act of 1974; System of Records
AGENCY: Federal Bureau of Investigation, Department of Justice
ACTION: Notice of proposed rulemaking.
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SUMMARY: Elsewhere in the Federal Register, the Federal Bureau of
Investigation (FBI), a component of the Department of Justice, has
published a notice of a new Privacy Act system of records, JUSTICE/FBI-
021, the Data Integration and Visualization System (DIVS). In this
notice of proposed rulemaking, the FBI proposes to exempt this system
from certain provisions of the Privacy Act in order to avoid
interference with the national security and criminal law enforcement
functions and responsibilities of the FBI. Public comment is invited.
DATES: Comments must be received by September 30, 2010.
ADDRESSES: Address all comments to Privacy Analyst, Office of Privacy
and Civil Liberties, National Place Building, 1331 Pennsylvania Ave.,
NW., Suite 940, Washington, DC 20530-0001 or facsimile 202-307-0693. To
ensure proper handling, please reference the CPCLO 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
[email protected]; or by using the comment
form for this regulation at http://www.regulations.gov. Please include
the CPCLO Order No. in the subject box.
Please note that the Department is requesting that electronic
comments be submitted before midnight Eastern Daylight Savings Time on
the day the comment period closes because http://www.regulations.gov
terminates the public's ability to submit comments at midnight Eastern
time on the day the comment period closes. Commenters in time zones
other than Eastern Time may want to consider this so that their
electronic comments are received. All comments sent via regular or
express mail will be considered timely if postmarked on the day the
comment period closes.
Posting of Public Comments: Please note that all comments received
are considered part of the public record and made available for public
inspection online at http://www.regulations.gov and in the Department's
public docket. Such information includes personal 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 ``PERSONAL IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You must also place all the personal
identifying information you do not want posted online or made available
in the public docket in the first paragraph of your comment and
identify what information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information to be
redacted within the comment. If a comment has so much confidential
business information that it cannot be effectively redacted, all or
part of that comment may not be posted online or made available in the
public docket.
Personal identifying information and confidential business
information identified and located as set forth above will be redacted
and the comment, in redacted form, will be posted online and placed in
the Department's public docket file. Please note that the Freedom of
Information Act applies to all comments received. If you wish to
inspect the agency's public docket file in person by appointment,
please see the FOR FURTHER INFORMATION paragraph.
FOR FURTHER INFORMATION CONTACT: Erin Page, Assistant General Counsel,
Privacy and Civil Liberties Unit, Office of the General Counsel, FBI,
Washington, DC 20535-0001, telephone 202-324-3000.
SUPPLEMENTARY INFORMATION: In the Notice section of today's Federal
Register, the FBI published a new Privacy Act system of records, the
Data Integration and Visualization System (DIVS), Justice/FBI-021. The
system enhances the analysis and presentation of data maintained in
support of the FBI's multifaceted investigative mission by enabling
access, search, integration, and analytics across multiple existing
databases. The system also allows users to save their queries and
create a separate record of relevant identifiers and information.
In this rulemaking, the FBI proposes to exempt certain records in
this Privacy Act system of records from certain provisions of the
Privacy Act in order to avoid interference with the law enforcement,
intelligence and counterintelligence, and counterterrorism
responsibilities of the FBI as established in federal law and policy.
Regulatory Flexibility Act
This proposed rule relates to individuals as opposed to small
business entities. Pursuant to the requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601-612, therefore, the proposed rule will
not have a significant economic impact on a substantial number of small
entities.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996, codified as a note to 5 U.S.C. 601, requires the FBI to comply
with small entity requests for information and advice about compliance
with statutes and regulations within FBI jurisdiction. Any small entity
that has a question regarding this document may contact the person
listed in FOR FURTHER INFORMATION CONTACT. Persons can obtain further
information regarding SBREFA on the Small Business Administration's Web
page at http://www.sba.gov/advo/archive/sum_sbrefa.html.
[[Page 53263]]
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 DIVS are created by the FBI or
other law enforcement and intelligence entities and sharing of this
information electronically will not increase the paperwork burden on
the public.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 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.
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 2940-2008, it
is proposed to amend 28 CFR Part 16 as follows:
PART 16--[AMENDED]
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C.
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.
Subpart E--Exemption of Records Systems Under the Privacy Act
2. Section 16.96 is amended by adding paragraphs (v) and (w) to
read as follows:
Sec. 16.96 Exemption of Federal Bureau of Investigation Systems--
limited access.
* * * * *
(v) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2) and (3);
(e)(4)(G), (H) and (I); (e)(5) and (8); (f) and (g) of the Privacy Act:
(1) Data Integration and Visualization System (DIVS), (JUSTICE/FBI-
021).
(2) These exemptions apply only to the extent that information in
this system is subject to exemption pursuant to 5 U.S.C. 552a(j) and/or
(k). Where compliance would not appear to interfere with or adversely
affect the intelligence and law enforcement purpose of this system, and
the overall law enforcement process, the applicable exemption may be
waived by the FBI in its sole discretion.
(w) Exemptions from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3), the requirement that an accounting be
made available to the named subject of a record, because this system is
exempt from the access provisions of subsection (d). Also, because
making available to a record subject the accounting of disclosures from
records concerning him/her would specifically reveal any 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 an investigation and
to take measures to impede the investigation, e.g., destroy evidence or
flee the area to avoid the investigation.
(2) From subsection (c)(4) notification requirements because this
system is exempt from the access and amendment provisions of subsection
(d) as well as the access to accounting of 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 records, it will share that information in appropriate
cases.
(3) From subsection (d)(1), (2), (3), and (4), (e)(4)(G) and (H)
because these provisions concern individual access to and amendment of
law enforcement, intelligence and counterintelligence, and
counterterrorism records and compliance could alert the subject of an
authorized law enforcement or intelligence activity about that
particular activity and the investigative interest of the FBI and/or
other law enforcement or intelligence agencies. Providing access could
compromise sensitive information classified to protect national
security; disclose information which would constitute an unwarranted
invasion of another's personal privacy; reveal a sensitive
investigative or intelligence technique; could provide information that
would allow a subject to avoid detection or apprehension; or constitute
a potential danger to the health or safety of law enforcement
personnel, confidential sources, and witnesses.
(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, and a major tenet of DIVS is
that the relevance and utility of certain information that may have a
nexus to terrorism or other crimes may not always be evident until and
unless it is vetted and matched with other sources of information that
are necessarily and lawfully maintained by the FBI.
(5) From subsection (e)(2) and (3) because application of this
provision could present a serious impediment to efforts to solve crimes
and improve national security. Application of these provisions would
put the subject of an investigation on notice of that fact and allow
the subject an opportunity to engage in conduct intended to impede that
activity or avoid apprehension.
(6) From subsection (e)(4)(I), to the extent that this subsection
is interpreted to require more detail regarding the record sources in
this system than has been published in the Federal Register. Should the
subsection be so interpreted, exemption from this provision is
necessary to protect the sources of law enforcement and intelligence
information and to protect the privacy and safety of witnesses and
informants and others who provide information to the FBI. Further,
greater specificity of properly classified records could compromise
national security.
(7) From subsection (e)(5) because in the collection of information
for authorized law enforcement and intelligence purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely and complete. With time, seemingly irrelevant or
untimely information may acquire new significance when new details are
brought to light. Additionally, the information may aid in establishing
patterns of activity and providing criminal or intelligence leads. It
could impede investigative progress if it were necessary to assure
relevance, accuracy, timeliness and completeness of all information
obtained during the scope of an investigation. Further, some
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of the records searched by and/or contained in DIVS may come from other
agencies and it would be administratively impossible for the FBI to
vouch for the compliance of these agencies with this provision.
(8) From subsection (e)(8) because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on the FBI and may alert the subjects
of law enforcement investigations, who might be otherwise unaware, to
the fact of those investigations.
(9) From subsections (f) and (g) to the extent that the system is
exempt from other specific subsections of the Privacy Act.
Dated: August 20, 2010.
Nancy C. Libin,
Chief Privacy and Civil Liberties Officer.
[FR Doc. 2010-21247 Filed 8-30-10; 8:45 am]
BILLING CODE 4410-02-P