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Rule

Privacy Act of 1974; Implementation

Action

Final Rule.

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.

 

Table of Contents Back to Top

EFFECTIVE DATE: Back to Top

This final rule is effective August 8, 2007.

FOR FURTHER INFORMATION CONTACT: Back to Top

GayLa Sessoms, (202) 616-5460 or Mary Cahill (202) 307-1823.

SUPPLEMENTARY INFORMATION: Back to Top

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 Back to Top

  • Administrative Practices and Procedures
  • Courts
  • Freedom of Information
  • and Privacy
begin regulatory text

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 Back to Top

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.

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

§ 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 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.

end regulatory text

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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