Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-031 Information Sharing Environment Suspicious Activity Reporting Initiative System of Records, 55290-55292 [2010-22639]
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55290
Proposed Rules
Federal Register
Vol. 75, No. 175
Friday, September 10, 2010
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.
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security/ALL–031 Information Sharing
Environment Suspicious Activity
Reporting Initiative System of Records
Privacy Office, DHS.
Notice of proposed rulemaking.
AGENCY:
The Department of Homeland
Security is giving concurrent notice of a
newly established system of records
pursuant to the Privacy Act of 1974 for
the ‘‘Department of Homeland Security/
ALL–031 Information Sharing
Environment Suspicious Activity
Reporting Initiative System of Records’’
and this proposed rulemaking. In this
proposed rulemaking, the Department
proposes to exempt portions of the
system of records from one or more
provisions of the Privacy Act because of
criminal, civil, and administrative
enforcement requirements.
DATES: Comments must be received on
or before October 12, 2010.
ADDRESSES: You may submit comments,
identified by docket number DHS–
2010–0076, by one of the following
methods:
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 703–483–2999.
• Mail: Mary Ellen Callahan, Chief
Privacy Officer, Privacy Office,
Department of Homeland Security,
Washington, DC 20528.
• Instructions: All submissions
received must include the agency name
and docket number for this rulemaking.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
• Docket: For access to the docket to
read background documents or
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SUMMARY:
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12:51 Sep 09, 2010
For
general questions please contact: Ronald
Athmann (202–447–4332), Office of
Intelligence and Analysis, Department
of Homeland Security, Washington, DC
20528. For privacy issues please
contact: Mary Ellen Callahan (703–235–
0780), Chief Privacy Officer, Privacy
Office, Department of Homeland
Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
[Docket No. DHS–2010–0076]
ACTION:
comments received go to https://
www.regulations.gov.
Instructions: All submissions received
must include the agency name and
docket number for this notice. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
Jkt 220001
I. Background
In accordance with the Privacy Act of
1974, 5 U.S.C. 552a, the Department of
Homeland Security (DHS) proposes to
establish a new DHS system of records
titled, ‘‘DHS/ALL–031 Information
Sharing Environment (ISE) Suspicious
Activity Reporting (SAR) Initiative
System of Records.’’
This system of records will allow DHS
components that produce, receive, and
store suspicious activity reports (SARs)
pursuant to their existing authorities,
responsibilities, platforms, and
programs to compile and share report
data that also meet the ISE–SAR
Functional Standard with authorized
participants in the Nationwide SAR
Initiative (NSI) including, federal
departments and agencies, state, local
and tribal law enforcement agencies,
and the private sector. The NSI is one
of a number of government-wide efforts
designed to implement guidelines first
issued by the President on December 16,
2005, for establishing the ISE pursuant
to section 1016 of the Intelligence
Reform and Terrorism Prevention Act of
2004 (IRTPA), as amended. The NSI
establishes a nationwide capability to
gather, document, process, analyze and
share information about suspicious
activity, incidents, or behavior
reasonably indicative of terrorist
activities (hereafter collectively referred
to as suspicious activity or activities) to
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Sfmt 4702
enable rapid identification and
mitigation of potential terrorist threats.
There is a long history of
documenting of suspicious activity,
particularly in the law enforcement
community; these reports are sometimes
referred to as suspicious activity reports,
tips and leads, or other similar terms.
Federal, state, local and tribal agencies,
and private sector currently collect and
document suspicious activities in
support of their responsibilities to
investigate and prevent potential
crimes, protect citizens, and apprehend
and prosecute criminals. Since some of
these documented activities may bear a
nexus to terrorism, the Program
Manager for the Information Sharing
Environment (PM–ISE) has developed a
standardized process for identifying,
documenting, and sharing terrorismrelated SAR data (hereinafter referred to
an ‘‘ISE–SAR’’), which meet the
definition and criteria set forth in the
ISE Functional Standard Suspicious
Activity Reporting, (Version 1.5, May
2009) to the maximum extent possible
consistent with the protection of
individual privacy, civil rights, and civil
liberties. The Functional Standard
defines an ISE–SAR as official
documentation of observed behavior
determined to have a potential nexus to
terrorism (i.e., to be reasonably
indicative of criminal activity associated
with terrorism).
Several operational components
within DHS regularly observe or
otherwise encounter suspicious
activities while executing their
authorized missions and performing
operational duties. Components
document those observations or
encounters in SARs. Across the
Department the operational setting or
context for activities reported in SARs
are as varied as the Department’s
mission responsibilities. Engagement
with the NSI will alter neither those
underlying mission functions nor upset
the current methodologies employed by
DHS components collecting information
on suspicious activities and issuing
SARs. Rather, the NSI will facilitate the
more effective sharing and discovery—
both internally and between DHS and
external NSI participants—by
incorporating a standardized
technological and functional approach
for recording and storing ISE–SARs
throughout DHS. Once training in the
NSI program and the application of
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these technical and functional
standards, DHS personnel will review
component SARs and submit the data
only from those that meet the ISE–SAR
Functional Standard into the NSI
Shared Space.
II. Privacy Act
The Privacy Act embodies fair
information practice principles in a
statutory framework governing the
means by which the U.S. Government
collects, maintains, uses, and
disseminates personally identifiable
information. The Privacy Act applies to
information that is maintained in a
‘‘system of records.’’ A ‘‘system of
records’’ is a group of any records under
the control of an agency from which
information is retrieved by the name of
the individual or by some identifying
number, symbol, or other identifying
particular assigned to the individual. In
the Privacy Act, an individual is defined
to encompass U.S. citizens and lawful
permanent residents. As a matter of
policy, DHS extends administrative
Privacy Act protections to all
individuals where systems of records
maintain information on U.S. citizens,
lawful permanent residents, and
visitors.
The Privacy Act allows government
agencies to exempt certain records from
the access and amendment provisions. If
an agency claims an exemption,
however, it must issue a Notice of
Proposed Rulemaking to make clear to
the public the reasons why a particular
exemption is claimed.
DHS is claiming exemptions from
certain requirements of the Privacy Act
for DHS/ALL–031 ISE SAR Program
System of Records. Some information in
the DHS/ALL–031 ISE SAR Program
System of Records relates to official
DHS national security, law enforcement,
immigration, intelligence activities, and
protective services to the President of
the U.S. or other individuals pursuant to
Section 3056 and 3056A of Title 18.
These exemptions are needed to protect
information relating to DHS activities
from disclosure to subjects or others
related to these activities. Specifically,
the exemptions are required to preclude
subjects of these activities from
frustrating these processes; to avoid
disclosure of activity techniques; to
protect the identities and physical safety
of confidential informants and law
enforcement personnel; to ensure DHS’
ability to obtain information from third
parties and other sources; to protect the
privacy of third parties; to safeguard
classified information; and to safeguard
records in connection with providing
protective services to the President of
the U.S. or other individuals pursuant to
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Section 3056 and 3056A of Title 18.
Disclosure of information to the subject
of the inquiry could also permit the
subject to avoid detection or
apprehension.
The exemptions proposed here are
standard law enforcement and national
security exemptions exercised by a large
number of federal law enforcement and
intelligence agencies. In appropriate
circumstances, where compliance
would not appear to interfere with or
adversely affect the law enforcement
purposes of this system and the overall
law enforcement process, the applicable
exemptions may be waived on a case by
case basis.
A notice of system of records for DHS/
ALL–031 ISE SAR Initiative System of
Records is also published in this issue
of the Federal Register.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
For the reasons stated in the
preamble, DHS proposes to amend
Chapter I of Title 6, Code of Federal
Regulations, as follows:
PART 5—DISCLOSURE OF RECORDS
AND INFORMATION
1. The authority citation for Part 5
continues to read as follows:
Authority: 6 U.S.C. 101 et seq.; Pub. L.
107–296, 116 Stat. 2135; 5 U.S.C. 301.
Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
2. Add at the end of Appendix C to
Part 5, the following new paragraph
‘‘52’’:
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
52. The DHS/ALL–031 ISE SAR Initiative
System of Records consists of electronic
records and will be used by DHS and its
components. The DHS/ALL–031 ISE SAR
Initiative System of Records is a repository of
information held by DHS in connection with
its several and varied missions and functions,
including, but not limited to the enforcement
of civil and criminal laws; investigations,
inquiries, and proceedings there under;
national security and intelligence activities;
and protection of the President of the U.S. or
other individuals pursuant to Section 3056
and 3056A of Title 18. The DHS/ALL–031
ISE SAR Initiative System of Records
contains information that is collected by, on
behalf of, in support of, or in cooperation
with DHS, its components, as well as other
federal, state, local, tribal, or foreign agencies
or private sector organization and may
contain personally identifiable information
collected by other federal, state, local, tribal,
foreign, or international government
agencies. The Secretary of Homeland
Security has exempted this system from the
following provisions of the Privacy Act,
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55291
subject to the limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), and
(e)(12); (f); (g)(1); and (h) of the Privacy Act
pursuant to 5 U.S.C. 552a(j)(2). Additionally,
the Secretary of Homeland Security has
exempted this system from the following
provisions of the Privacy Act, subject to the
limitation set forth in 5 U.S.C. 552a(c)(3); (d);
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) of
the Privacy Act pursuant to 5 U.S.C.
552a(k)(2), and (k)(3). Exemptions from these
particular subsections are justified, on a caseby-case basis to be determined at the time a
request is made, for the following reasons:
(a) From subsection (c)(3) and (c)(4)
(Accounting for Disclosures) because release
of the accounting of disclosures could alert
the subject of an investigation of an actual or
potential criminal, civil, or regulatory
violation to the existence of that investigation
and reveal investigative interest on the part
of DHS as well as the recipient agency.
Disclosure of the accounting would therefore
present a serious impediment to law
enforcement efforts and/or efforts to preserve
national security. Disclosure of the
accounting would also permit the individual
who is the subject of a record to impede the
investigation, to tamper with witnesses or
evidence, and to avoid detection or
apprehension, which would undermine the
entire investigative process.
(b) From subsection (d) (Access to Records)
because access to the records contained in
this system of records could inform the
subject of an investigation of an actual or
potential criminal, civil, or regulatory
violation to the existence of that investigation
and reveal investigative interest on the part
of DHS or another agency. Access to the
records could permit the individual who is
the subject of a record to impede the
investigation, to tamper with witnesses or
evidence, and to avoid detection or
apprehension. Amendment of the records
could interfere with ongoing investigations
and law enforcement activities and would
impose an unreasonable administrative
burden by requiring investigations to be
continually reinvestigated. In addition,
permitting access and amendment to such
information could disclose security-sensitive
information that could be detrimental to
homeland security.
(c) From subsection (e)(1) (Relevancy and
Necessity of Information) because in the
course of investigations into potential
violations of federal law, the accuracy of
information obtained or introduced
occasionally may be unclear, or the
information may not be strictly relevant or
necessary to a specific investigation. In the
interests of effective law enforcement, it is
appropriate to retain all information that may
aid in establishing patterns of unlawful
activity.
(d) From subsection (e)(2) (Collection of
Information from Individuals) because
requiring that information be collected from
the subject of an investigation would alert the
subject to the nature or existence of the
investigation, thereby interfering with that
investigation and related law enforcement
activities.
(e) From subsection (e)(3) (Notice to
Subjects) because providing such detailed
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Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Proposed Rules
information could impede law enforcement
by compromising the existence of a
confidential investigation or reveal the
identity of witnesses or confidential
informants.
(f) From subsections (e)(4)(G), (e)(4)(H),
and (e)(4)(I) (Agency Requirements) and (f)
(Agency Rules), because portions of this
system are exempt from the individual access
provisions of subsection (d) for the reasons
noted above, and therefore DHS is not
required to establish requirements, rules, or
procedures with respect to such access.
Providing notice to individuals with respect
to existence of records pertaining to them in
the system of records or otherwise setting up
procedures pursuant to which individuals
may access and view records pertaining to
themselves in the system would undermine
investigative efforts and reveal the identities
of witnesses, and potential witnesses, and
confidential informants.
(g) From subsection (e)(5) (Collection of
Information) because with the collection of
information for law enforcement purposes, it
is impossible to determine in advance what
information is accurate, relevant, timely, and
complete. Compliance with subsection (e)(5)
would preclude DHS agents from using their
investigative training and exercise of good
judgment to both conduct and report on
investigations.
(h) From subsection (e)(8) (Notice on
Individuals) because compliance would
interfere with DHS’s ability to obtain, serve,
and issue subpoenas, warrants, and other law
enforcement mechanisms that may be filed
under seal and could result in disclosure of
investigative techniques, procedures, and
evidence.
(i) From subsection (e)(12) (Computer
Matching) if the agency is a recipient agency
or a source agency in a matching program
with a non-Federal agency, with respect to
any establishment or revision of a matching
program, at least 30 days prior to conducting
such program, publish in the Federal Register
notice of such establishment or revision.
(j) From subsection (g)(1) (Civil Remedies)
to the extent that the system is exempt from
other specific subsections of the Privacy Act.
(k) From subsection (h) (Legal Guardians)
the parent of any minor, or the legal guardian
of any individual who has been declared to
be incompetent due to physical or mental
incapacity or age by a court of competent
jurisdiction, may act on behalf of the
individual.
Dated: September 7, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. 2010–22639 Filed 9–9–10; 8:45 am]
BILLING CODE 9110–9B–P
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1250
[Doc. No. AMS–PY–08–0032]
Amendment to Egg Research and
Promotion Order and Regulations To
Increase the Rate of Assessment and
Referendum Order
Agricultural Marketing Service,
USDA.
ACTION: Proposed rule and notice of
referendum.
AGENCY:
This proposed rule would
amend the Egg Research and Promotion
Order (Order) to increase the assessment
rate on egg producers paying
assessments to the American Egg Board
(AEB) from 10 cents to 15 cents per
30-dozen case of commercial eggs,
provided the increase is approved by
egg producers voting in a referendum.
This proposal would also make a
conforming amendment to the
regulations. Notice also is hereby given
that the Agricultural Marketing Service
(AMS) will conduct a referendum to
determine whether egg producers favor
the increase in the assessment rate.
DATES: For the purpose of determining
voter eligibility, the representative
production period is the period January
1, 2009, through December 31, 2009.
The referendum will be held during the
period October 29 through November
19, 2010.
FOR FURTHER INFORMATION CONTACT:
Angela C. Snyder, Research and
Promotion; Standards, Promotion &
Technology Branch; Poultry Programs,
AMS, USDA, 1400 Independence
Avenue, SW., Room 3932–S,
Washington, DC 20250–0256; telephone:
(202) 720–4476; fax: (202) 720–2930; or
e-mail: Angie.Snyder@ams.usda.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Executive Order 12866
The Office of Management and Budget
(OMB) has waived the review process
required by Executive Order 12866 for
this action.
Executive Order 12988
This proposed rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. The rule is not intended
to have a retroactive effect.
The Egg Research and Consumer
Information Act (Act) provides that
administrative proceedings must be
exhausted before parties may file suit in
court. Section 14 of the Act allows those
subject to the Order to file a written
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petition with the Secretary of
Agriculture (Secretary) if they believe
that the Order, any provision of the
Order, or any obligation imposed in
connection with the Order, is not in
accordance with the law. In any
petition, the person may request a
modification of the Order or an
exemption from the Order. The
petitioner will have the opportunity for
a hearing on the petition. Afterwards, an
Administrative Law Judge (ALJ) will
issue a decision. If the petitioner
disagrees with the ALJ’s ruling, the
petitioner has 30 days to appeal to the
Judicial Officer, who will issue a ruling
on behalf of the Secretary. If the
petitioner disagrees with the Secretary’s
ruling, the petitioner may file, within 20
days, an appeal in the U.S. District
Court for the district where the
petitioner resides or conducts business.
Initial Regulatory Flexibility Act
Analysis and Paperwork Reduction Act
In accordance with the Regulatory
Flexibility Act (RFA) [5 U.S.C. 601–
612], AMS has considered the economic
impact of this action on the small
producers that would be affected by this
rule. The purpose of the RFA is to fit
regulatory action to scale on businesses
subject to such action so that small
businesses will not be
disproportionately burdened.
According to AEB, approximately 245
producers are subject to the provisions
of the Order, including paying
assessments. Under the current Order,
producers in the 48 contiguous United
States and the District of Columbia who
own more than 75,000 laying hens each
currently pay a mandatory assessment
of 10 cents per 30-dozen case of eggs.
Handlers are responsible for collecting
and remitting assessments to AEB.
There are approximately 160 egg
handlers who collect assessments.
Assessments under the program are
used by AEB to finance promotion,
research, and consumer information
programs designed to increase consumer
demand for eggs in domestic and
international markets. At the current
rate of 10 cents per 30-dozen case,
assessments generate about $20 million
in annual revenues. The Order is
administered by AEB under supervision
of the U.S. Department of Agriculture.
In 13 CFR part 121, the Small
Business Administration (SBA) defines
small agricultural producers as those
having annual receipts of no more than
$750,000 and small agricultural service
firms as those having annual receipts of
no more than $7 million. Under this
definition, the vast majority of the egg
producers that would be affected by this
rule would not be considered small
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]]>Agencies
[Federal Register Volume 75, Number 175 (Friday, September 10, 2010)]
[Proposed Rules]
[Pages 55290-55292]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-22639]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
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.
========================================================================
Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 /
Proposed Rules
[[Page 55290]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2010-0076]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/ALL-031 Information Sharing Environment Suspicious
Activity Reporting Initiative System of Records
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security is giving concurrent
notice of a newly established system of records pursuant to the Privacy
Act of 1974 for the ``Department of Homeland Security/ALL-031
Information Sharing Environment Suspicious Activity Reporting
Initiative System of Records'' and this proposed rulemaking. In this
proposed rulemaking, the Department proposes to exempt portions of the
system of records from one or more provisions of the Privacy Act
because of criminal, civil, and administrative enforcement
requirements.
DATES: Comments must be received on or before October 12, 2010.
ADDRESSES: You may submit comments, identified by docket number DHS-
2010-0076, by one of the following methods:
Federal e-Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 703-483-2999.
Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
Instructions: All submissions received must include the
agency name and docket number for this rulemaking. All comments
received will be posted without change to
http:[sol][sol]www.regulations.gov, including any personal information
provided.
Docket: For access to the docket to read background
documents or comments received go to
http:[sol][sol]www.regulations.gov.
Instructions: All submissions received must include the agency name
and docket number for this notice. All comments received will be posted
without change to http:[sol][sol]www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http:[sol][sol]www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Ronald Athmann (202-447-4332), Office of Intelligence and Analysis,
Department of Homeland Security, Washington, DC 20528. For privacy
issues please contact: Mary Ellen Callahan (703-235-0780), Chief
Privacy Officer, Privacy Office, Department of Homeland Security,
Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the
Department of Homeland Security (DHS) proposes to establish a new DHS
system of records titled, ``DHS/ALL-031 Information Sharing Environment
(ISE) Suspicious Activity Reporting (SAR) Initiative System of
Records.''
This system of records will allow DHS components that produce,
receive, and store suspicious activity reports (SARs) pursuant to their
existing authorities, responsibilities, platforms, and programs to
compile and share report data that also meet the ISE-SAR Functional
Standard with authorized participants in the Nationwide SAR Initiative
(NSI) including, federal departments and agencies, state, local and
tribal law enforcement agencies, and the private sector. The NSI is one
of a number of government-wide efforts designed to implement guidelines
first issued by the President on December 16, 2005, for establishing
the ISE pursuant to section 1016 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (IRTPA), as amended. The NSI
establishes a nationwide capability to gather, document, process,
analyze and share information about suspicious activity, incidents, or
behavior reasonably indicative of terrorist activities (hereafter
collectively referred to as suspicious activity or activities) to
enable rapid identification and mitigation of potential terrorist
threats.
There is a long history of documenting of suspicious activity,
particularly in the law enforcement community; these reports are
sometimes referred to as suspicious activity reports, tips and leads,
or other similar terms. Federal, state, local and tribal agencies, and
private sector currently collect and document suspicious activities in
support of their responsibilities to investigate and prevent potential
crimes, protect citizens, and apprehend and prosecute criminals. Since
some of these documented activities may bear a nexus to terrorism, the
Program Manager for the Information Sharing Environment (PM-ISE) has
developed a standardized process for identifying, documenting, and
sharing terrorism-related SAR data (hereinafter referred to an ``ISE-
SAR''), which meet the definition and criteria set forth in the ISE
Functional Standard Suspicious Activity Reporting, (Version 1.5, May
2009) to the maximum extent possible consistent with the protection of
individual privacy, civil rights, and civil liberties. The Functional
Standard defines an ISE-SAR as official documentation of observed
behavior determined to have a potential nexus to terrorism (i.e., to be
reasonably indicative of criminal activity associated with terrorism).
Several operational components within DHS regularly observe or
otherwise encounter suspicious activities while executing their
authorized missions and performing operational duties. Components
document those observations or encounters in SARs. Across the
Department the operational setting or context for activities reported
in SARs are as varied as the Department's mission responsibilities.
Engagement with the NSI will alter neither those underlying mission
functions nor upset the current methodologies employed by DHS
components collecting information on suspicious activities and issuing
SARs. Rather, the NSI will facilitate the more effective sharing and
discovery--both internally and between DHS and external NSI
participants--by incorporating a standardized technological and
functional approach for recording and storing ISE-SARs throughout DHS.
Once training in the NSI program and the application of
[[Page 55291]]
these technical and functional standards, DHS personnel will review
component SARs and submit the data only from those that meet the ISE-
SAR Functional Standard into the NSI Shared Space.
II. Privacy Act
The Privacy Act embodies fair information practice principles in a
statutory framework governing the means by which the U.S. Government
collects, maintains, uses, and disseminates personally identifiable
information. The Privacy Act applies to information that is maintained
in a ``system of records.'' A ``system of records'' is a group of any
records under the control of an agency from which information is
retrieved by the name of the individual or by some identifying number,
symbol, or other identifying particular assigned to the individual. In
the Privacy Act, an individual is defined to encompass U.S. citizens
and lawful permanent residents. As a matter of policy, DHS extends
administrative Privacy Act protections to all individuals where systems
of records maintain information on U.S. citizens, lawful permanent
residents, and visitors.
The Privacy Act allows government agencies to exempt certain
records from the access and amendment provisions. If an agency claims
an exemption, however, it must issue a Notice of Proposed Rulemaking to
make clear to the public the reasons why a particular exemption is
claimed.
DHS is claiming exemptions from certain requirements of the Privacy
Act for DHS/ALL-031 ISE SAR Program System of Records. Some information
in the DHS/ALL-031 ISE SAR Program System of Records relates to
official DHS national security, law enforcement, immigration,
intelligence activities, and protective services to the President of
the U.S. or other individuals pursuant to Section 3056 and 3056A of
Title 18. These exemptions are needed to protect information relating
to DHS activities from disclosure to subjects or others related to
these activities. Specifically, the exemptions are required to preclude
subjects of these activities from frustrating these processes; to avoid
disclosure of activity techniques; to protect the identities and
physical safety of confidential informants and law enforcement
personnel; to ensure DHS' ability to obtain information from third
parties and other sources; to protect the privacy of third parties; to
safeguard classified information; and to safeguard records in
connection with providing protective services to the President of the
U.S. or other individuals pursuant to Section 3056 and 3056A of Title
18. Disclosure of information to the subject of the inquiry could also
permit the subject to avoid detection or apprehension.
The exemptions proposed here are standard law enforcement and
national security exemptions exercised by a large number of federal law
enforcement and intelligence agencies. In appropriate circumstances,
where compliance would not appear to interfere with or adversely affect
the law enforcement purposes of this system and the overall law
enforcement process, the applicable exemptions may be waived on a case
by case basis.
A notice of system of records for DHS/ALL-031 ISE SAR Initiative
System of Records is also published in this issue of the Federal
Register.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend
Chapter I of Title 6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
1. The authority citation for Part 5 continues to read as follows:
Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat.
2135; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
2. Add at the end of Appendix C to Part 5, the following new
paragraph ``52'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
52. The DHS/ALL-031 ISE SAR Initiative System of Records
consists of electronic records and will be used by DHS and its
components. The DHS/ALL-031 ISE SAR Initiative System of Records is
a repository of information held by DHS in connection with its
several and varied missions and functions, including, but not
limited to the enforcement of civil and criminal laws;
investigations, inquiries, and proceedings there under; national
security and intelligence activities; and protection of the
President of the U.S. or other individuals pursuant to Section 3056
and 3056A of Title 18. The DHS/ALL-031 ISE SAR Initiative System of
Records contains information that is collected by, on behalf of, in
support of, or in cooperation with DHS, its components, as well as
other federal, state, local, tribal, or foreign agencies or private
sector organization and may contain personally identifiable
information collected by other federal, state, local, tribal,
foreign, or international government agencies. The Secretary of
Homeland Security has exempted this system from the following
provisions of the Privacy Act, subject to the limitations set forth
in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), and (e)(12); (f);
(g)(1); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2).
Additionally, the Secretary of Homeland Security has exempted this
system from the following provisions of the Privacy Act, subject to
the limitation set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1),
(e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) of the Privacy Act pursuant
to 5 U.S.C. 552a(k)(2), and (k)(3). Exemptions from these particular
subsections are justified, on a case-by-case basis to be determined
at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (c)(4) (Accounting for
Disclosures) because release of the accounting of disclosures could
alert the subject of an investigation of an actual or potential
criminal, civil, or regulatory violation to the existence of that
investigation and reveal investigative interest on the part of DHS
as well as the recipient agency. Disclosure of the accounting would
therefore present a serious impediment to law enforcement efforts
and/or efforts to preserve national security. Disclosure of the
accounting would also permit the individual who is the subject of a
record to impede the investigation, to tamper with witnesses or
evidence, and to avoid detection or apprehension, which would
undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to
the records contained in this system of records could inform the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation to the existence of that
investigation and reveal investigative interest on the part of DHS
or another agency. Access to the records could permit the individual
who is the subject of a record to impede the investigation, to
tamper with witnesses or evidence, and to avoid detection or
apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement activities and would impose an
unreasonable administrative burden by requiring investigations to be
continually reinvestigated. In addition, permitting access and
amendment to such information could disclose security-sensitive
information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of federal law, the accuracy of information obtained or
introduced occasionally may be unclear, or the information may not
be strictly relevant or necessary to a specific investigation. In
the interests of effective law enforcement, it is appropriate to
retain all information that may aid in establishing patterns of
unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject to the
nature or existence of the investigation, thereby interfering with
that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed
[[Page 55292]]
information could impede law enforcement by compromising the
existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency
Requirements) and (f) (Agency Rules), because portions of this
system are exempt from the individual access provisions of
subsection (d) for the reasons noted above, and therefore DHS is not
required to establish requirements, rules, or procedures with
respect to such access. Providing notice to individuals with respect
to existence of records pertaining to them in the system of records
or otherwise setting up procedures pursuant to which individuals may
access and view records pertaining to themselves in the system would
undermine investigative efforts and reveal the identities of
witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because
with the collection of information for law enforcement purposes, it
is impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with subsection (e)(5)
would preclude DHS agents from using their investigative training
and exercise of good judgment to both conduct and report on
investigations.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS's ability to obtain, serve, and
issue subpoenas, warrants, and other law enforcement mechanisms that
may be filed under seal and could result in disclosure of
investigative techniques, procedures, and evidence.
(i) From subsection (e)(12) (Computer Matching) if the agency is
a recipient agency or a source agency in a matching program with a
non-Federal agency, with respect to any establishment or revision of
a matching program, at least 30 days prior to conducting such
program, publish in the Federal Register notice of such
establishment or revision.
(j) From subsection (g)(1) (Civil Remedies) to the extent that
the system is exempt from other specific subsections of the Privacy
Act.
(k) From subsection (h) (Legal Guardians) the parent of any
minor, or the legal guardian of any individual who has been declared
to be incompetent due to physical or mental incapacity or age by a
court of competent jurisdiction, may act on behalf of the
individual.
Dated: September 7, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-22639 Filed 9-9-10; 8:45 am]
BILLING CODE 9110-9B-P
