Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security National Protection and Programs Directorate-001 National Infrastructure Coordinating Center Records System of Records, 44452-44454 [2011-18828]
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Federal Register / Vol. 76, No. 143 / Tuesday, July 26, 2011 / Rules and Regulations
will be used by DHS and its components. The
DHS/ALL–029 Civil Rights and Civil
Liberties Records 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 thereunder; national security
and intelligence activities; and protection of
the President of the United States or other
individuals pursuant to Section 3056 and
3056A of Title 18. The DHS/ALL–029 Civil
Rights and Civil Liberties Records System of
Records contains information that is
collected by, on behalf of, in support of, or
in cooperation with DHS and its components
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 limitations set forth in 5
U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C.
§ 552a(k)(1), (k)(2), (k)(3), and (k)(5).
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) (Accounting for
Disclosures) because release of the
accounting of disclosures could alert the
individual who is 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
individual who is 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
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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 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.
*
*
*
*
*
Dated: June 9, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. 2011–18832 Filed 7–25–11; 8:45 am]
BILLING CODE 9110–9B–P
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2011–0054]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security National Protection and
Programs Directorate—001 National
Infrastructure Coordinating Center
Records System of Records
Privacy Office, DHS.
ACTION: Final rule.
AGENCY:
The Department of Homeland
Security is issuing a final rule to amend
its regulations to exempt portions of a
newly established system of records
titled, ‘‘Department of Homeland
Security/National Protection and
Programs Directorate—001 National
Infrastructure Coordinating Center
Records System of Records’’ from
certain provisions of the Privacy Act.
Specifically, the Department exempts
portions of the ‘‘Department of
Homeland Security/National Protection
and Programs Directorate—001 National
Infrastructure Coordinating Center
Records System of Records’’ from one or
more provisions of the Privacy Act
because of criminal, civil, and
administrative enforcement
SUMMARY:
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requirements. The Department will not
claim Privacy Act exemption (k)(3) as
originally published in the Notice of
Proposed Rulemaking.
DATES: Effective Date: This final rule is
effective July 26, 2011.
FOR FURTHER INFORMATION CONTACT: For
general questions please contact: Emily
Andrew (703–235–2182), Senior Privacy
Officer, National Protection and
Programs Directorate, Department of
Homeland Security, Washington, DC
20525. 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:
Background
The Department of Homeland
Security (DHS), National Protection and
Programs Directorate (NPPD), published
a notice of proposed rulemaking
(NPRM) in the Federal Register, 75 FR
69603, on November 15, 2010,
proposing 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. The system
of records is the DHS/NPPD—001
National Infrastructure Coordinating
Center (NICC) Records System of
Records. The DHS/NPPD—001 NICC
Records system of records notice
(SORN) was published concurrently in
the Federal Register, 75 FR 69693,
November 15, 2010, and comments were
invited on both the NPRM and SORN.
The Department will not claim Privacy
Act exemption (k)(3) as originally
published in the NPRM.
Public Comments
DHS received one set of public
comments from the Electronic Privacy
Information Center (EPIC). Comments
submitted for the NPRM and SORN
were identical. Each comment is
outlined below followed by the
Department’s response.
1. By exempting this system of
records from certain provisions of the
Privacy Act, DHS is contravening the
purpose of the Act.
Comment: EPIC urged DHS to limit its
exemptions from the Privacy Act’s
provisions, including 5 U.S.C.
552a(c)(3), which entitles individuals to
an accounting of disclosures of their
records, stating that individuals should
be able to know, after an investigation
is completed or made public, the
information stored about them in the
system. Further, EPIC wrote that
because information from informants
may be used to initiate investigations,
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individuals may find themselves
investigated due to malicious
information. This could be alleviated by
providing access to records of
completed investigations with
appropriate redactions. EPIC also stated
that DHS is retaining the right to
disseminate using the overly broad
standard of ‘‘potential risk of harm to an
individual,’’ while limiting access to
that same information that may be
further disseminated.
Response: DHS recognizes the need to
allow individuals the rights to and an
account of disclosures of their records.
The determination to exempt records
from 5 U.S.C. 552a(d) is justified on a
case-by-case basis, to be determined at
the time a request is made. In those
instances where an individual’s records
are determined to be exempt from this
provision, the individual may seek
access to such records under 5 U.S.C.
552.
Comment: EPIC stated that DHS is
exempting this system from 5 U.S.C.
552a(d) in order to prevent individuals
from avoiding detection or tampering
with evidence, which DHS argues
would impose an unreasonable
administrative burden by requiring
investigations to be continually
reinvestigated. EPIC wrote that this
restriction would not only contravene
the Privacy Act, but may also hinder
some government investigations, as was
illustrated in a 2007 Department of
Justice Inspector General review of the
Transportation Security
Administration’s (TSA) Terrorist
Screening Center, which indicates that
errors in the watch list obstruct the
capture of actual terrorists and affect
innocent individuals. EPIC specifically
referenced fusion center data, writing
that by exempting this data, DHS would
prevent individuals from requesting
information that DHS may be keeping
on them, limiting their opportunity to
seek redress.
Response: DHS recognizes the need to
allow individuals the right to seek
redress. The determination to exempt
records from 5 U.S.C. 552a(d) is justified
on a case-by-case basis, to be
determined at the time a request is
made. In those instances where an
individual’s records are determined to
be exempt from this provision, the
individual may seek access to such
records under 5 U.S.C. 552. With
respect to EPIC’s specific comment
regarding fusion center data that
information falls outside the scope of
this NPRM and SORN.
Comment: EPIC urged DHS to remove
this system’s exemption from 5 U.S.C.
552a(e)(1), requiring that records
maintained in this system be relevant
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and necessary to accomplish the
agency’s purpose, as this standard is a
fundamental and necessary part of the
Privacy Act protections and staves off
mission creep. EPIC cited TSA’s secondgeneration Computer Assisted Passenger
Prescreening System (CAPPS II)
program as an example in which
mission creep led to additional
opportunity for errors. Further, EPIC
wrote that this blanket exemption
would allow records to contain
information unrelated to any purpose of
DHS.
Response: In the interest of effective
law enforcement, it is appropriate to
retain all information that may aid in
establishing patterns of unlawful
activity. The information collected in
this system that may be helpful in a
particular investigation would likely be
relevant and necessary to the
investigation at some stage, and thus be
in compliance with the standards of the
Privacy Act.
Comment: EPIC expressed concerns
with the operation of a proposed fusion
center without being subject to the
provisions of 5 U.S.C. 552a(e)(4)(G)–(I)
and (f), noting that this would prevent
individuals from knowing whether
records in this system pertain to them.
EPIC wrote that DHS could promulgate
rules requiring notification only after an
active investigation has been concluded
or with sensitive information redacted
prior to release.
Response: This comment relates to
fusion center activities, which are
outside the scope of this NPRM and
SORN.
2. The NICC Proposal Requires a
Narrow Mission with Clear Oversight
Mechanisms and Limiting Guidelines.
Comment: EPIC wrote that the NICC
mission statement is overly broad and
justifies the collection of personal
information for virtually any reason or
for no reason at all. Instead, EPIC would
advocate for meaningful guidance on
the reasons and purpose of the creation
of the system of records, arguing that the
range of routine uses proposed by DHS
are so broad as to make meaningless any
intent to restrict data, furthering the
possibility of mission creep.
Response: Consistent with DHS’s
information sharing mission,
information contained in the system of
records may be shared with other DHS
components, as well as appropriate
Federal, state, local, Tribal territorial,
foreign or international government
agencies. The sharing will only take
place after DHS determines that the
receiving component or agency has a
verifiable need to know the information
to carry out national security, law
enforcement, immigration, intelligence-
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44453
related activities, or to the functions
consistent with the routine uses. DHS
has provided notice of the purpose of
the creation of this system of records in
the form of NPRM, the SORN, and the
Privacy Impact Assessment (PIA).
3. The NICC Proposal Requires a New
PIA.
Comment: EPIC called for a new PIA
to be drafted, which would cover
fusions centers encompassing Federal
projects, as opposed to covering only
state, local, and regional fusion center
projects.
Response: This comment relates to
fusion center activities, which are
outside the scope of this NPRM and
SORN.
After careful review and
consideration of these public comments
alongside the published PIA and SORN,
the Department will implement the
rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
For the reasons stated in the
preamble, DHS amends 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
‘‘59’’:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
59. The DHS/NPPD–001 NICC Records
System of Records consists of electronic and
paper records and will be used by DHS and
its components. The DHS/NPPD–001 NICC
Records 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
The DHS/NPPD–001 NICC Records System of
Records contains information that is
collected by, on behalf of, in support of, or
in cooperation with DHS and its components
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 limitations set forth in 5
U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I), and (f) pursuant to 5 U.S.C.
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552a(k)(1) and (k)(2). 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) (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 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.
VerDate Mar<15>2010
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Jkt 223001
Dated: June 28, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. 2011–18828 Filed 7–25–11; 8:45 am]
BILLING CODE 9110–9P–P
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
7 CFR Part 301
[Docket No. APHIS–2009–0079]
Karnal Bunt; Regulated Areas in
Arizona, California, and Texas
Animal and Plant Health
Inspection Service, USDA.
ACTION: Final rule.
AGENCY:
We are adopting as a final
rule, with one change, an interim rule
that amended the Karnal bunt
regulations to make changes to the list
of areas or fields regulated because of
Karnal bunt, a fungal disease of wheat.
Specifically, the interim rule added
portions of the Buckeye/Pretoria area of
Maricopa County, AZ, to the list of
regulated areas and removed
Throckmorton and Young Counties, TX,
portions of Riverside County, CA, and
certain areas in La Paz, Maricopa, and
Pinal Counties, AZ, from the list of
regulated areas based on our
determination that those fields or areas
meet our criteria for release from
regulation. The interim rule was
necessary to prevent the spread of
Karnal bunt to noninfected areas of the
United States and to relieve restrictions
on certain areas that are no longer
necessary. In the interim rule, we
inadvertently removed two areas in
Maricopa County, AZ, from the list of
regulated areas. We are returning those
areas to the list in this final rule.
DATES: Effective Date: July 26, 2011.
FOR FURTHER INFORMATION CONTACT: Ms.
Lynn Evans-Goldner, Karnal Bunt
Program Manager, Plant Pathogen and
Weed Programs, EDP, PPQ, APHIS, 4700
River Road, Unit 26, Riverdale, MD
20737–1236; (301) 734–7228.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background
Karnal bunt is a fungal disease of
wheat (Triticum aestivum), durum
wheat (Triticum durum), and triticale
(Triticum aestivum X Secale cereale), a
hybrid of wheat and rye. Karnal bunt is
caused by the fungus Tilletia indica
(Mitra) Mundkur and is spread
primarily through the planting of
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infected seed followed by very specific
environmental conditions matched
during specific stages of wheat growth.
The U.S. Department of Agriculture’s
Animal and Plant Health Inspection
Service regulates the movement of
articles in the United States that could
spread Karnal bunt and works toward
eventual eradication of Karnal bunt
through biosanitary measures.
In an interim rule 1 effective and
published in the Federal Register on
November 10, 2010 (75 FR 68942–
68945, Docket No. APHIS–2009–0079),
we amended the Karnal bunt regulations
in 7 CFR 301.89–1 through 301.89–16
by adding the Buckeye/Pretoria area of
Maricopa County, AZ, to the list of
regulated areas. The interim rule also
removed Throckmorton and Young
Counties, TX, portions of Riverside
County, CA, and certain areas in La Paz,
Maricopa, and Pinal Counties, AZ, from
the list of regulated areas in § 301.89–3
based on our determination that those
fields or areas meet our criteria for
release from regulation.
We solicited comments concerning
the interim rule for 60 days ending
January 10, 2011. We did not receive
any comments. However, after the
publication of the interim rule, we
noted that in amending the entry for
Maricopa County, AZ, in § 301.89–3, we
inadvertently removed paragraphs (3)
and (4) in the description of the
quarantined areas in that county. We are
reinstating those paragraphs in this final
rule.
Therefore, for the reasons given in the
interim rule, we are adopting the
interim rule as a final rule with change
discussed in this document.
This action also affirms the
information contained in the interim
rule concerning Executive Order 12866
and the Regulatory Flexibility Act,
Executive Orders 12372 and 12988, and
the Paperwork Reduction Act.
Further, for this action, the Office of
Management and Budget has waived its
review under Executive Order 12866.
Effective Date
Pursuant to the administrative
procedure provisions in 5 U.S.C. 553,
we find good cause for making this rule
effective less than 30 days after
publication in the Federal Register. The
interim rule adopted as final by this rule
became effective on November 10, 2010.
This rule reinstates two paragraphs of
the description of the regulated area in
Maricopa County, AZ. Immediate action
1 To view the interim rule and a correction that
restored several missing hyphens in the rule text,
go to https://www.regulations.gov/fdmspublic/
component/main?main=DocketDetail&d=APHIS2009-0079.
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]]>Agencies
[Federal Register Volume 76, Number 143 (Tuesday, July 26, 2011)]
[Rules and Regulations]
[Pages 44452-44454]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18828]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2011-0054]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security National Protection and Programs Directorate--001
National Infrastructure Coordinating Center Records System of Records
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security is issuing a final rule to
amend its regulations to exempt portions of a newly established system
of records titled, ``Department of Homeland Security/National
Protection and Programs Directorate--001 National Infrastructure
Coordinating Center Records System of Records'' from certain provisions
of the Privacy Act. Specifically, the Department exempts portions of
the ``Department of Homeland Security/National Protection and Programs
Directorate--001 National Infrastructure Coordinating Center Records
System of Records'' from one or more provisions of the Privacy Act
because of criminal, civil, and administrative enforcement
requirements. The Department will not claim Privacy Act exemption
(k)(3) as originally published in the Notice of Proposed Rulemaking.
DATES: Effective Date: This final rule is effective July 26, 2011.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Emily Andrew (703-235-2182), Senior Privacy Officer, National
Protection and Programs Directorate, Department of Homeland Security,
Washington, DC 20525. 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:
Background
The Department of Homeland Security (DHS), National Protection and
Programs Directorate (NPPD), published a notice of proposed rulemaking
(NPRM) in the Federal Register, 75 FR 69603, on November 15, 2010,
proposing 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. The system of records is the
DHS/NPPD--001 National Infrastructure Coordinating Center (NICC)
Records System of Records. The DHS/NPPD--001 NICC Records system of
records notice (SORN) was published concurrently in the Federal
Register, 75 FR 69693, November 15, 2010, and comments were invited on
both the NPRM and SORN. The Department will not claim Privacy Act
exemption (k)(3) as originally published in the NPRM.
Public Comments
DHS received one set of public comments from the Electronic Privacy
Information Center (EPIC). Comments submitted for the NPRM and SORN
were identical. Each comment is outlined below followed by the
Department's response.
1. By exempting this system of records from certain provisions of
the Privacy Act, DHS is contravening the purpose of the Act.
Comment: EPIC urged DHS to limit its exemptions from the Privacy
Act's provisions, including 5 U.S.C. 552a(c)(3), which entitles
individuals to an accounting of disclosures of their records, stating
that individuals should be able to know, after an investigation is
completed or made public, the information stored about them in the
system. Further, EPIC wrote that because information from informants
may be used to initiate investigations,
[[Page 44453]]
individuals may find themselves investigated due to malicious
information. This could be alleviated by providing access to records of
completed investigations with appropriate redactions. EPIC also stated
that DHS is retaining the right to disseminate using the overly broad
standard of ``potential risk of harm to an individual,'' while limiting
access to that same information that may be further disseminated.
Response: DHS recognizes the need to allow individuals the rights
to and an account of disclosures of their records. The determination to
exempt records from 5 U.S.C. 552a(d) is justified on a case-by-case
basis, to be determined at the time a request is made. In those
instances where an individual's records are determined to be exempt
from this provision, the individual may seek access to such records
under 5 U.S.C. 552.
Comment: EPIC stated that DHS is exempting this system from 5
U.S.C. 552a(d) in order to prevent individuals from avoiding detection
or tampering with evidence, which DHS argues would impose an
unreasonable administrative burden by requiring investigations to be
continually reinvestigated. EPIC wrote that this restriction would not
only contravene the Privacy Act, but may also hinder some government
investigations, as was illustrated in a 2007 Department of Justice
Inspector General review of the Transportation Security
Administration's (TSA) Terrorist Screening Center, which indicates that
errors in the watch list obstruct the capture of actual terrorists and
affect innocent individuals. EPIC specifically referenced fusion center
data, writing that by exempting this data, DHS would prevent
individuals from requesting information that DHS may be keeping on
them, limiting their opportunity to seek redress.
Response: DHS recognizes the need to allow individuals the right to
seek redress. The determination to exempt records from 5 U.S.C. 552a(d)
is justified on a case-by-case basis, to be determined at the time a
request is made. In those instances where an individual's records are
determined to be exempt from this provision, the individual may seek
access to such records under 5 U.S.C. 552. With respect to EPIC's
specific comment regarding fusion center data that information falls
outside the scope of this NPRM and SORN.
Comment: EPIC urged DHS to remove this system's exemption from 5
U.S.C. 552a(e)(1), requiring that records maintained in this system be
relevant and necessary to accomplish the agency's purpose, as this
standard is a fundamental and necessary part of the Privacy Act
protections and staves off mission creep. EPIC cited TSA's second-
generation Computer Assisted Passenger Prescreening System (CAPPS II)
program as an example in which mission creep led to additional
opportunity for errors. Further, EPIC wrote that this blanket exemption
would allow records to contain information unrelated to any purpose of
DHS.
Response: In the interest of effective law enforcement, it is
appropriate to retain all information that may aid in establishing
patterns of unlawful activity. The information collected in this system
that may be helpful in a particular investigation would likely be
relevant and necessary to the investigation at some stage, and thus be
in compliance with the standards of the Privacy Act.
Comment: EPIC expressed concerns with the operation of a proposed
fusion center without being subject to the provisions of 5 U.S.C.
552a(e)(4)(G)-(I) and (f), noting that this would prevent individuals
from knowing whether records in this system pertain to them. EPIC wrote
that DHS could promulgate rules requiring notification only after an
active investigation has been concluded or with sensitive information
redacted prior to release.
Response: This comment relates to fusion center activities, which
are outside the scope of this NPRM and SORN.
2. The NICC Proposal Requires a Narrow Mission with Clear Oversight
Mechanisms and Limiting Guidelines.
Comment: EPIC wrote that the NICC mission statement is overly broad
and justifies the collection of personal information for virtually any
reason or for no reason at all. Instead, EPIC would advocate for
meaningful guidance on the reasons and purpose of the creation of the
system of records, arguing that the range of routine uses proposed by
DHS are so broad as to make meaningless any intent to restrict data,
furthering the possibility of mission creep.
Response: Consistent with DHS's information sharing mission,
information contained in the system of records may be shared with other
DHS components, as well as appropriate Federal, state, local, Tribal
territorial, foreign or international government agencies. The sharing
will only take place after DHS determines that the receiving component
or agency has a verifiable need to know the information to carry out
national security, law enforcement, immigration, intelligence-related
activities, or to the functions consistent with the routine uses. DHS
has provided notice of the purpose of the creation of this system of
records in the form of NPRM, the SORN, and the Privacy Impact
Assessment (PIA).
3. The NICC Proposal Requires a New PIA.
Comment: EPIC called for a new PIA to be drafted, which would cover
fusions centers encompassing Federal projects, as opposed to covering
only state, local, and regional fusion center projects.
Response: This comment relates to fusion center activities, which
are outside the scope of this NPRM and SORN.
After careful review and consideration of these public comments
alongside the published PIA and SORN, the Department will implement the
rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS amends Chapter I of
Title 6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
0
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.
0
2. Add at the end of Appendix C to Part 5, the following new paragraph
``59'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
59. The DHS/NPPD-001 NICC Records System of Records consists of
electronic and paper records and will be used by DHS and its
components. The DHS/NPPD-001 NICC Records 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 The DHS/NPPD-001 NICC Records System of Records contains
information that is collected by, on behalf of, in support of, or in
cooperation with DHS and its components 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 limitations set forth in 5
U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and
(f) pursuant to 5 U.S.C.
[[Page 44454]]
552a(k)(1) and (k)(2). 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) (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 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.
Dated: June 28, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-18828 Filed 7-25-11; 8:45 am]
BILLING CODE 9110-9P-P
