[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Rules and Regulations]
[Pages 80313-80314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32108]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 006-2010]
Privacy Act of 1974; Implementation
AGENCY: Federal Bureau of Investigation, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Federal Bureau of Investigation (FBI), a component of the
Department of Justice, issued a proposed rule for a new Privacy Act
system of records entitled, the ``Data Integration and Visualization
System (DIVS),'' JUSTICE/FBI-021, 75 FR 53262 (August 31, 2010). DIVS
is exempt from the subsections of the Privacy Act listed below for the
reasons set forth in the following text. Information in this system of
records related to matters of law enforcement and the exemptions are
necessary to avoid interference with the national security and criminal
law enforcement functions and responsibilities of the FBI. This
document addresses a public comment on the proposed rule.
DATES: Effective Date: December 22, 2010.
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:
Background
On August 31, 2010, the FBI published notice of a new Privacy Act
system of records entitled, ``Data Integration and Visualization System
(DIVS),'' JUSTICE/FBI-021, which became effective on October 1, 2010.
In conjunction with publication of the DIVS system of records notice,
the FBI initiated a rulemaking to exempt DIVS from a number of
provisions of the Privacy Act, in accordance with subsections 553a(j)
and/or (k). On August 31, 2010, the FBI published at 75 FR 53262 a
proposed rule exempting records in the DIVS from Privacy Act
subsections (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).
Public Comment
The FBI received one comment on the proposed rule. The commenter
concurred with the exemptions cited but requested that the FBI provide
more information explaining the FBI's ``internal controls'' in
protecting the data itself from improper violations. The FBI determined
that the public comment merited no change in the rule, as the commenter
concurred with the exemptions claimed, and because an exemption rule
does not provide an appropriate venue for the discussion requested.
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.
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 is 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,
[[Page 80314]]
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.
0
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--[AMENDED]
0
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 552(b) (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
0
2. Section 16.96 is amended to add new 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 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: November 2, 2010.
Nancy C. Libin,
Chief Privacy and Civil Liberties Officer.
[FR Doc. 2010-32108 Filed 12-21-10; 8:45 am]
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