[Federal Register Volume 72, Number 152 (Wednesday, August 8, 2007)]
[Rules and Regulations]
[Pages 44382-44383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15455]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 023-2007]


Privacy Act of 1974; Implementation

AGENCY: Department of Justice.

ACTION: Final Rule.

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SUMMARY: On May 8, 2007, at 72 FR 26037, the Department of Justice 
issued a proposed rule to amend Title 28 of the Code of Federal 
Regulations, Part 16, to exempt the following new system of records 
from certain provisions of the Privacy Act: The National Security 
Division (NSD), ``Foreign Intelligence and Counterintelligence Records 
System (JUSTICE/NSD-001),'' which incorporated three previous systems 
of records of the Office of Intelligence Policy and Review (OIPR). This 
records system must be exempted from sections of the Privacy Act since, 
in most cases, disclosure of the existence of records pertaining to an 
individual would hinder authorized United States intelligence 
activities by informing that individual of the existence, nature, or 
scope of information that is properly classified pursuant to Executive 
Order 12958, as amended, and thereby cause damage to the national 
security. Further it is necessary to exempt this system to ensure 
unhampered and effective collection and analysis of foreign 
intelligence and counterintelligence information and to protect the 
identities of confidential sources.

EFFECTIVE DATE: This final rule is effective August 8, 2007.

FOR FURTHER INFORMATION CONTACT: GayLa Sessoms, (202) 616-5460 or Mary 
Cahill (202) 307-1823.

SUPPLEMENTARY INFORMATION: The notice of the proposed rule with 
invitation to comment was published in the Federal Register on May 8, 
2007, at 72 FR 26073. No comments were received. The Department of 
Justice is exempting JUSTICE/NSD-001 from 5 U.S.C. 552a(c)(3) and (4); 
(d); (e)(1), (2), (3), (4)(G), (H), and (I), (5) and (8); (f); (g); and 
(h).
    This order relates to individuals rather than small business 
entities. Nevertheless, pursuant to the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, this order will not have a 
significant impact on a substantial number of small business entities.

List of Subjects in 28 CFR Part 16

    Administrative Practices and Procedures, Courts, Freedom of 
Information, and Privacy.

0
Pursuant to the authority vested in the Attorney General by 5 U.S.C. 
552a and delegated to me by Attorney General Order No. 793-78, amend 28 
CFR part 16 as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

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

    Authority: 5 U.S.C. 301, 551, 552a, 552b(g), and 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, and 9701.


0
2. Section 16. 74 is revised to read as follows:


Sec.  16.74  Exemption of National Security Division Systems--limited 
access.

    (a) The following system of records is exempted from subsections 
(c)(3) and (4); (d); (e)(1), (2), (3), (4)(G),(H) and (I), (5) and (8); 
(f); (g); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), 
(k)(1), (2) and (5): Foreign Intelligence and Counterintelligence 
Records System (JUSTICE/NSD-001). These exemptions apply only to the 
extent that information in the system is subject to exemption pursuant 
to 5 U.S.C. 552a(j)(2), (k)(1), (2), and (5).
    (b) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) Subsection (c)(3). To provide the target of a surveillance or 
collection activity with the disclosure accounting records concerning 
him or her would hinder authorized United States intelligence 
activities by informing that individual of the existence, nature, or 
scope of information that is properly classified pursuant to Executive 
Order 12958, as amended, and thereby cause damage to the national 
security.
    (2) Subsection (c)(4). This subsection is inapplicable to the 
extent that an

[[Page 44383]]

exemption is being claimed for subsection (d).
    (3) Subsection (d)(1). Disclosure of foreign intelligence and 
counterintelligence information would interfere with collection 
activities, reveal the identity of confidential sources, and cause 
damage to the national security of the United States. To ensure 
unhampered and effective collection and analysis of foreign 
intelligence and counterintelligence information, disclosure must be 
precluded.
    (4) Subsection (d)(2). Amendment of the records would interfere 
with ongoing intelligence activities thereby causing damage to the 
national security.
    (5) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent exemption is claimed from (d)(1) and (2).
    (6) Subsection (e)(1). It is often impossible to determine in 
advance if intelligence records contained in this system are relevant 
and necessary, but, in the interests of national security, it is 
necessary to retain this information to aid in establishing patterns of 
activity and provide intelligence leads.
    (7) Subsection (e)(2). Although this office does not conduct 
investigations, the collection efforts of agencies that supply 
information to this office would be thwarted if the agencies were 
required to collect information with the subject's knowledge.
    (8) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of collection activity and 
compromise national security. For example, a target could, once made 
aware that collection activity exists, alter his or her manner of 
engaging in intelligence or terrorist activities in order to avoid 
detection.
    (9) Subsections (e)(4)(G), (H) and (I), and (f). These subsections 
are inapplicable to the extent that this system is exempt from the 
access provisions of subsection (d).
    (10) Subsection (e)(5). It is often impossible to determine in 
advance if intelligence records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of national 
security, it is necessary to retain this information to aid in 
establishing patterns of activity and providing intelligence leads.
    (11) Subsection (e)(8). Serving notice could give persons 
sufficient warning to evade intelligence collection and anti-terrorism 
efforts.
    (12) Subsections (g) and (h). These subsections are inapplicable to 
the extent that this system is exempt from other specific subsections 
of the Privacy Act.

    Dated: July 27, 2007.
Lee J. Lofthus,
Assistant Attorney General for Administration.
 [FR Doc. E7-15455 Filed 8-7-07; 8:45 am]
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