Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-030 Use of the Terrorist Screening Database System of Records, 81787-81789 [2011-33428]
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81787
Rules and Regulations
Federal Register
Vol. 76, No. 250
Thursday, December 29, 2011
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF HOMELAND
SECURITY
provisions of the Privacy Act because of
criminal, civil, and administrative
enforcement requirements. The system
of records is titled, ‘‘DHS/ALL–030 Use
of the Terrorist Screening Database
System of Records.’’ The DHS/ALL–030
Use of the Terrorist Screening Database
system of records notice (SORN) was
published concurrently in the Federal
Register, July 6, 2011, 76 FR 39408, and
comments were invited on both the
NPRM and SORN.
Public Comments
DHS received a total of two
comments, one on the NPRM and one
that addressed both the NPRM and the
SORN.
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2011–0100]
Comments on the NPRM
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security/ALL–030 Use of the Terrorist
Screening Database System of
Records
DHS received two comments on the
NPRM. One of the comments on the
NPRM also included comments on the
SORN. That comment will be addressed
in its entirety under SORN below. The
one comment exclusively on the NPRM
was from a private individual. The
individual raised a series of
philosophical questions regarding the
policy behind homeland security issues
that were unrelated to this proposed
rulemaking. The individual also
mentioned several times that this is a
‘‘new database.’’ This is not a new
database. The system of records
addressed by this NPRM and the
accompanying SORN represents a
mirror copy of the Department of Justice
(DOJ)/Federal Bureau of Investigation
(FBI)–019 Terrorist Screening Records
System of Records (August 22, 2007, 72
FR 47073). The same rules outlined in
the DOJ/FBI–019 Terrorist Screening
Records System of Records (August 22,
2007, 72 FR 47073) transfer and apply.
The individual goes on to discuss the
historical relevance of the Terrorist
Screening Database and outlines the
positives and negatives of the system.
The individual also raises concerns
about the security of the system. The
DHS mirrored copy of the system will
receive the same security and protection
as it does at the FBI and Terrorist
Screening Center (TSC). The individual
also speculates that, as a matter of fiscal
priority, the system could be subject to
less funding over time based on
priorities. The system will meet the
same requirements at DHS as it does at
FBI/TSC. The individual concludes the
general comments by saying the benefits
Privacy Office, DHS.
Final rule.
AGENCY:
ACTION:
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/ALL–030 Use of the Terrorist
Screening Database System of Records’’
from certain provisions of the Privacy
Act. Specifically, the Department
exempts portions of the ‘‘Department of
Homeland Security/ALL–030 Use of the
Terrorist Screening Database System of
Records’’ from one or more provisions
of the Privacy Act because of criminal,
civil, and administrative enforcement
requirements.
SUMMARY:
Effective Date: This final rule is
effective December 29, 2011.
FOR FURTHER INFORMATION CONTACT: For
general questions and privacy issues
please contact: Mary Ellen Callahan
(703) 235–0780), Chief Privacy Officer,
Privacy Office, Department of Homeland
Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
tkelley on DSK3SPTVN1PROD with RULES
DATES:
Background
The Department of Homeland
Security (DHS) published a notice of
proposed rulemaking (NPRM) in the
Federal Register, July 6, 2011, 76 FR
39315, proposing to exempt portions of
the system of records from one or more
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16:16 Dec 28, 2011
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outweigh the risks. On Privacy Act
exemptions, the individual states that
the proposed rule was nicely drafted.
The individual asks the question of who
will make the determination on when
an exemption will be applied. In
response to that question, that
determination will be made by DHS
privacy or disclosure staff in
consultation with counsel. If the
exemption is applied and an appeal is
necessary, individuals may appeal the
decision. That process can be found at
www.dhs.gov/foia. The individual
expresses appreciation for the
Department’s decision to consider
requests on a case-by-case basis when
applying exemptions. The individual
states that the system should be
implemented and that it be a model for
other agencies.
Comment on the SORN
DHS received one comment on the
SORN from a public interest research
center that was joined in filing its
comments by seventeen other privacy,
consumer rights, and civil rights
organizations. The comment addressed
both the NPRM and SORN jointly and
is addressed in this section. The authors
start by stating that DHS should
‘‘suspend the proposal pending a full
review of the privacy, security, and legal
implications of the program, including
compliance with the Federal Privacy
Act.’’ The NPRM and SORN received
internal coordination and clearance by
program and compliance officials,
including, but not limited to, the Office
of General Counsel and the Chief
Privacy Officer. The organizations
further stated that ‘‘if the agency (DHS)
proceeds with the Watch List System
(WLS) program, the system must, at a
minimum: (1) Adhere to Congress’s
intent to maintain transparent and
secure government recordkeeping
systems; (2) provide individuals
judicially enforceable rights of notice,
access, and correction; (3) conform to a
revised SORN and NPRM that includes
requirements for the agency (DHS) to
respect individuals’ rights to control
their information in possession of
Federal agencies, as the Privacy Act
requires; and (4) premise its
technological and security approach on
decentralization.’’ With respect to these
points, the Department follows the
complete privacy legal framework as
well as additional privacy policy it has
E:\FR\FM\29DER1.SGM
29DER1
tkelley on DSK3SPTVN1PROD with RULES
81788
Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Rules and Regulations
put in place. The organizations go on to
state that the Department is
intentionally circumventing a number of
provisions under the Privacy Act as well
as the intent of the Privacy Act. As
noted above, the NPRM and SORN
received internal coordination and
clearance by program and compliance
officials, including, but not limited to,
the Office of General Counsel and the
Chief Privacy Officer. This addresses the
author’s points covering ‘‘meaningful
privacy protections Congress
established in the Privacy Act.’’ The fact
that Privacy Act exemptions are taken
within this system of records, and
explained within the NPRM, does not
mean that the act is illegal or outside of
the intent of Congress. The exemptions
are contemplated by the Privacy Act and
the Department implemented them
consistent with that statute. The
Department maintains that, for a variety
of national security and law
enforcement purposes, the exemptions
taken within the system of records, and
outlined in the NRPM, are necessary
and are unchanged. The organizations
go on to refute the Privacy Act
exemptions claimed and recommend
changing the way the Department does
business including the way it conducts
investigations. The organizations
recommend that the Department void
the claimed exemptions. The
Department maintains that, for national
security and law enforcement purposes,
the exemptions taken within the system
of records, and outlined in the NRPM,
are necessary and remain in place. The
organizations also go on to cite concerns
regarding privacy risks contemplated in
previously published Privacy Impact
Assessments (PIAs) where the Terrorist
Screening Database (TSDB) is used. In
response, the Department emphasizes
that this is not a new database. This
NPRM and SORN represent a mirror
copy of the DOJ/FBI–019 Terrorist
Screening Records System of Records
(August 22, 2007, 72 FR 47073). The
same rules outlined in the FBI SORN
transfer and apply. The Department has
taken additional steps to further ensure
privacy protections by conducting
appropriate privacy analysis through a
published PIA as well as SORN. Doing
so provides additional transparency on
the risks, mitigations, and privacy rules
associated with maintaining a mirror
copy of the TSDB.
After consideration of public
comments and reviewing the NPRM, the
Department determined it did not
require exemptions to subsections
(e)(12) or (h) of the Privacy Act. Thus,
the Department has removed proposed
VerDate Mar<15>2010
16:16 Dec 28, 2011
Jkt 226001
paragraphs (i) and (k) from the Final
Rule. No additional changes were made.
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
‘‘66’’:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
66. The DHS/ALL–030 Use of
Terrorist Screening Database System of
Records consists of electronic and paper
records and will be used by DHS and its
components. The DHS/ALL–030 Use of
Terrorist Screening Database 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–030 Use of Terrorist Screening
Database 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.
Pursuant to 5 U.S.C. 552a(j)(2), 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 (c)(4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I),
(e)(5), (e)(8); (f); and (g)(1). Additionally,
pursuant to 5 U.S.C. 552a(k)(1) and
(k)(2), 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). Exemptions
from these particular subsections are
PO 00000
Frm 00002
Fmt 4700
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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
E:\FR\FM\29DER1.SGM
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Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Rules and Regulations
that investigation and related law
enforcement activities.
(e) From subsection (e)(3) (Notice to
Subjects) because providing such
detailed 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 (g)(1) (Civil
Remedies) to the extent that the system
is exempt from other specific
subsections of the Privacy Act.
tkelley on DSK3SPTVN1PROD with RULES
Dated: November 23, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. 2011–33428 Filed 12–28–11; 8:45 am]
BILLING CODE 9110–9M–P
DEPARTMENT OF AGRICULTURE
12 CFR Part 345
7 CFR Part 4274
Community Reinvestment
Direct and Insured Loanmaking
CFR Correction
In Title 7 of the Code of Federal
Regulations, Part 2000 to End, revised as
of January 1, 2011, on page 746, in
§ 4274.338, paragraph (b)(4)(ii)(D) is
added to read as follows:
§ 4274.338 Loan agreements between the
Agency and the intermediary.
*
*
*
*
*
(b) * * *
(4) * * *
(ii) * * *
(D) An annual report on the extent to
which increased employment, income
and ownership opportunities are
provided to low-income persons, farm
families, and displaced farm families for
each loan made by such intermediary.
*
*
*
*
*
Jkt 226001
CFR Correction
In Title 12 of the Code of Federal
Regulations, Parts 300 to 499, revised as
of January 1, 2011, on page 457, in
§ 345.12, paragraph (u)(1) is revised to
read as follows:
§ 345.12
Definitions.
*
*
*
*
*
(u) * * *
(1) Definition. Small bank means a
bank that, as of December 31 of either
of the prior two calendar years, had
assets of less than $1.122 billion.
Intermediate small bank means a small
bank with assets of at least $280 million
as of December 31 of both of the prior
two calendar years and less than $1.122
billion as of December 31 of either of the
prior two calendar years.
*
*
*
*
*
[FR Doc. 2011–33529 Filed 12–28–11; 8:45 am]
BILLING CODE 1505–01–D
[FR Doc. 2011–33527 Filed 12–28–11; 8:45 am]
BUREAU OF CONSUMER FINANCIAL
PROTECTION
BILLING CODE 1505–01–D
12 CFR Part 1013
DEPARTMENT OF JUSTICE
[Docket No. CFPB–2011–0026]
Executive Office for Immigration
Review
RIN 3170–AA06
8 CFR Part 1292
Consumer Leasing (Regulation M);
Correction
Bureau of Consumer Financial
Protection.
ACTION: Interim final rule; correction.
AGENCY:
Professional Conduct for
Practitioners—Representation and
Appearances
CFR Correction
In Title 8 of the Code of Federal
Regulations, revised as of January 1,
2011, on page 1142, in § 1292.1,
paragraph (a)(2) introductory text is
corrected to read as follows:
§ 1292.1
Representation of others.
(a) * * *
(2) Law students and law graduates
not yet admitted to the bar. A law
student who is enrolled in an accredited
U.S. law school, or a graduate of an
accredited U.S. law school who is not
yet admitted to the bar, provided that:
*
*
*
*
*
BILLING CODE 1505–01–D
16:16 Dec 28, 2011
FEDERAL DEPOSIT INSURANCE
CORPORATION
Rural Business-Cooperative Service
[FR Doc. 2011–33530 Filed 12–28–11; 8:45 am]
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The Bureau of Consumer
Financial Protection (Bureau) is
correcting an interim final rule that
appeared in the Federal Register of
December 19, 2011 (76 FR 78500). The
interim final rule established a new
Regulation M (Consumer Leasing) in
accordance with the transfer of
rulemaking authority for the Consumer
Leasing Act of 1976 (CLA) from the
Board of Governors of the Federal
Reserve System to the Bureau under
Title X of the Dodd-Frank Wall Street
Reform and Consumer Protection Act.1
DATES: Effective December 30, 2011.
FOR FURTHER INFORMATION CONTACT:
Courtney Jean or Priscilla Walton-Fein,
Office of Regulations, at (202) 435–7700.
SUMMARY:
1 Section 1066 of the Dodd-Frank Act grants the
Secretary of the Treasury interim authority to
perform certain functions of the Bureau. Pursuant
to that authority, Treasury is publishing this interim
final rule on behalf of the Bureau.
E:\FR\FM\29DER1.SGM
29DER1
]]>Agencies
[Federal Register Volume 76, Number 250 (Thursday, December 29, 2011)]
[Rules and Regulations]
[Pages 81787-81789]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33428]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 /
Rules and Regulations
[[Page 81787]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2011-0100]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/ALL-030 Use of the Terrorist Screening Database
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/ALL-030 Use of the
Terrorist Screening Database System of Records'' from certain
provisions of the Privacy Act. Specifically, the Department exempts
portions of the ``Department of Homeland Security/ALL-030 Use of the
Terrorist Screening Database System of Records'' from one or more
provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements.
DATES: Effective Date: This final rule is effective December 29, 2011.
FOR FURTHER INFORMATION CONTACT: For general questions and 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) published a notice of
proposed rulemaking (NPRM) in the Federal Register, July 6, 2011, 76 FR
39315, 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
titled, ``DHS/ALL-030 Use of the Terrorist Screening Database System of
Records.'' The DHS/ALL-030 Use of the Terrorist Screening Database
system of records notice (SORN) was published concurrently in the
Federal Register, July 6, 2011, 76 FR 39408, and comments were invited
on both the NPRM and SORN.
Public Comments
DHS received a total of two comments, one on the NPRM and one that
addressed both the NPRM and the SORN.
Comments on the NPRM
DHS received two comments on the NPRM. One of the comments on the
NPRM also included comments on the SORN. That comment will be addressed
in its entirety under SORN below. The one comment exclusively on the
NPRM was from a private individual. The individual raised a series of
philosophical questions regarding the policy behind homeland security
issues that were unrelated to this proposed rulemaking. The individual
also mentioned several times that this is a ``new database.'' This is
not a new database. The system of records addressed by this NPRM and
the accompanying SORN represents a mirror copy of the Department of
Justice (DOJ)/Federal Bureau of Investigation (FBI)-019 Terrorist
Screening Records System of Records (August 22, 2007, 72 FR 47073). The
same rules outlined in the DOJ/FBI-019 Terrorist Screening Records
System of Records (August 22, 2007, 72 FR 47073) transfer and apply.
The individual goes on to discuss the historical relevance of the
Terrorist Screening Database and outlines the positives and negatives
of the system. The individual also raises concerns about the security
of the system. The DHS mirrored copy of the system will receive the
same security and protection as it does at the FBI and Terrorist
Screening Center (TSC). The individual also speculates that, as a
matter of fiscal priority, the system could be subject to less funding
over time based on priorities. The system will meet the same
requirements at DHS as it does at FBI/TSC. The individual concludes the
general comments by saying the benefits outweigh the risks. On Privacy
Act exemptions, the individual states that the proposed rule was nicely
drafted. The individual asks the question of who will make the
determination on when an exemption will be applied. In response to that
question, that determination will be made by DHS privacy or disclosure
staff in consultation with counsel. If the exemption is applied and an
appeal is necessary, individuals may appeal the decision. That process
can be found at www.dhs.gov/foia. The individual expresses appreciation
for the Department's decision to consider requests on a case-by-case
basis when applying exemptions. The individual states that the system
should be implemented and that it be a model for other agencies.
Comment on the SORN
DHS received one comment on the SORN from a public interest
research center that was joined in filing its comments by seventeen
other privacy, consumer rights, and civil rights organizations. The
comment addressed both the NPRM and SORN jointly and is addressed in
this section. The authors start by stating that DHS should ``suspend
the proposal pending a full review of the privacy, security, and legal
implications of the program, including compliance with the Federal
Privacy Act.'' The NPRM and SORN received internal coordination and
clearance by program and compliance officials, including, but not
limited to, the Office of General Counsel and the Chief Privacy
Officer. The organizations further stated that ``if the agency (DHS)
proceeds with the Watch List System (WLS) program, the system must, at
a minimum: (1) Adhere to Congress's intent to maintain transparent and
secure government recordkeeping systems; (2) provide individuals
judicially enforceable rights of notice, access, and correction; (3)
conform to a revised SORN and NPRM that includes requirements for the
agency (DHS) to respect individuals' rights to control their
information in possession of Federal agencies, as the Privacy Act
requires; and (4) premise its technological and security approach on
decentralization.'' With respect to these points, the Department
follows the complete privacy legal framework as well as additional
privacy policy it has
[[Page 81788]]
put in place. The organizations go on to state that the Department is
intentionally circumventing a number of provisions under the Privacy
Act as well as the intent of the Privacy Act. As noted above, the NPRM
and SORN received internal coordination and clearance by program and
compliance officials, including, but not limited to, the Office of
General Counsel and the Chief Privacy Officer. This addresses the
author's points covering ``meaningful privacy protections Congress
established in the Privacy Act.'' The fact that Privacy Act exemptions
are taken within this system of records, and explained within the NPRM,
does not mean that the act is illegal or outside of the intent of
Congress. The exemptions are contemplated by the Privacy Act and the
Department implemented them consistent with that statute. The
Department maintains that, for a variety of national security and law
enforcement purposes, the exemptions taken within the system of
records, and outlined in the NRPM, are necessary and are unchanged. The
organizations go on to refute the Privacy Act exemptions claimed and
recommend changing the way the Department does business including the
way it conducts investigations. The organizations recommend that the
Department void the claimed exemptions. The Department maintains that,
for national security and law enforcement purposes, the exemptions
taken within the system of records, and outlined in the NRPM, are
necessary and remain in place. The organizations also go on to cite
concerns regarding privacy risks contemplated in previously published
Privacy Impact Assessments (PIAs) where the Terrorist Screening
Database (TSDB) is used. In response, the Department emphasizes that
this is not a new database. This NPRM and SORN represent a mirror copy
of the DOJ/FBI-019 Terrorist Screening Records System of Records
(August 22, 2007, 72 FR 47073). The same rules outlined in the FBI SORN
transfer and apply. The Department has taken additional steps to
further ensure privacy protections by conducting appropriate privacy
analysis through a published PIA as well as SORN. Doing so provides
additional transparency on the risks, mitigations, and privacy rules
associated with maintaining a mirror copy of the TSDB.
After consideration of public comments and reviewing the NPRM, the
Department determined it did not require exemptions to subsections
(e)(12) or (h) of the Privacy Act. Thus, the Department has removed
proposed paragraphs (i) and (k) from the Final Rule. No additional
changes were made.
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
``66'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
66. The DHS/ALL-030 Use of Terrorist Screening Database System of
Records consists of electronic and paper records and will be used by
DHS and its components. The DHS/ALL-030 Use of Terrorist Screening
Database 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-030 Use of Terrorist Screening Database 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.
Pursuant to 5 U.S.C. 552a(j)(2), 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 (c)(4);
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5),
(e)(8); (f); and (g)(1). Additionally, pursuant to 5 U.S.C. 552a(k)(1)
and (k)(2), 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). 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
[[Page 81789]]
that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed 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 (g)(1) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
Dated: November 23, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-33428 Filed 12-28-11; 8:45 am]
BILLING CODE 9110-9M-P
