[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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