Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security Office of Operations Coordination and Planning-003 Operations Collection, Planning, Coordination, Reporting, Analysis, and Fusion System of Records, 33605-33607 [2012-13778]
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33605
Rules and Regulations
Federal Register
Vol. 77, No. 110
Thursday, June 7, 2012
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
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2011–0057]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security Office of Operations
Coordination and Planning—003
Operations Collection, Planning,
Coordination, Reporting, Analysis, and
Fusion 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 Office of Operations
Coordination and Planning–003
Operations Collection, Planning,
Coordination, Reporting, Analysis, and
Fusion System of Records’’ from certain
provisions of the Privacy Act.
Specifically, the Department exempts
portions of the 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 June 7, 2012.
FOR FURTHER INFORMATION CONTACT: For
general questions please contact:
Michael Page (202–357–7626), Privacy
Point of Contact, Office of Operations
Coordination and Planning, 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:
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DATES:
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Background
The Department of Homeland
Security (DHS) Office of Operations
Coordination and Planning (OPS)
published a notice of proposed
rulemaking (NPRM) in the Federal
Register, on November 15, 2010 at 75
FR 69604, 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/OPS–003 Operations
Collection, Planning, Coordination,
Reporting, Analysis, and Fusion System
of Records.’’ The DHS/OPS–003
Operations Collection, Planning,
Coordination, Reporting, Analysis, and
Fusion system of records notice (SORN)
was published concurrently in the
Federal Register on November 15, 2010
at 75 FR 69689, and comments were
invited on both the NPRM and SORN.
Public Comments
DHS/OPS received three comments
on the NPRM and three comments on
the SORN for a total of six comments.
Comments on the NPRM
DHS/OPS received three comments
on the NPRM. The first NPRM comment
was from an anonymous individual
seeking to state an opinion and
requested no specific action or
amendment related to the proposed
rulemaking. The second NPRM
comment was from an anonymous
individual supporting the proposed
rulemaking. The third NPRM comment
was from a public interest organization
that filed comments on the NPRM and
SORN jointly in a comingled fashion
and the comments on the SORN and
NPRM are addressed as the second
SORN comment below.
Comments on the SORN
DHS/OPS also received three
comments on the SORN. The first SORN
comment was from a media and
academic partnership and included the
following points: (1) It is difficult for the
public to comment on the merits of the
proposed rulemaking because so little
information is available on fusion
centers; (2) the government has failed to
make available information requested
under FOIA (an issue unrelated to this
proposed rulemaking); (3) the proposed
system does not adequately protect the
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public’s privacy; (4) the new system will
impose significant costs (an issue
unrelated to this proposed rulemaking);
(5) there is fusion center mission creep
(an issue unrelated to this proposed
rulemaking); and (6) there are privacy
violations in fusion center guidelines
(an issue unrelated to this proposed
rulemaking). Many of the points raised
by this commenter were unrelated to the
proposed rulemaking, but the
Department will address the above
comments in whole. The commenter
states that there is ‘‘insufficient public
information available on fusion centers
for the public to adequately evaluate the
effect of the proposed information
collection system’’ and ‘‘the expense,
mission creep, and privacy effects of the
proposed database.’’ In response to the
issues raised by this commenter
regarding fusion centers: (1) Information
on fusion centers can be found on the
Department’s Web page at www.dhs.gov
and in the DHS/ALL/PIA–011
Department of Homeland Security State,
Local, and Regional Fusion Center
Initiative Privacy Impact Assessment
(PIA), December 11, 2008. This PIA
provides a detailed discussion and
privacy analysis on fusion centers and
is available at www.dhs.gov/privacy; (2)
the Department is and will continue to
be responsive to FOIA requests. FOIA
requests may be sent to the Chief
Privacy Officer and Chief Freedom of
Information Act Officer, Department of
Homeland Security, 245 Murray Drive
SW., Building 410, STOP–0655,
Washington, DC 20528; and (3) the
privacy protections of information
collected by fusion centers is covered by
privacy policies of the fusion center.
This DHS/OPS–003 Operations
Collection, Planning, Coordination,
Reporting, Analysis, and Fusion System
of Records is not the system of records
exclusively covering information
collections by fusion centers. This
system of records would only cover
information sent to the NOC by fusion
centers, as well as other information
collections beyond information sent to
the NOC by fusion centers. Components
of the Department receiving information
from fusion centers use their own
SORNs on a component-by-component
basis and those SORNs can be found at
www.dhs.gov/privacy. Each of the
officially-designated and operational
fusion centers have privacy policies that
have been found by DHS to be ‘‘at least
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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations
as comprehensive’’ as the federal
guidelines for protecting privacy within
the Information Sharing Environment.
Many of these policies are published on
the National Fusion Center
Association’s public Web site at https://
www.nfcausa.org. With respect to points
4, 5, and 6, above these are not related
to this rulemaking. This NPRM and
SORN do not seek to establish a new
information technology (IT) database or
to collect new information; rather this
NPRM and SORN provide transparency
to OPS practices by pulling together a
variety of already existing records for a
single purpose under a specific
authority. It is also worth clarifying that
this NPRM and SORN do not
exclusively cover fusion centers for the
Department, although the National
Operations Center (NOC) may receive
information from a fusion center. Such
information may be covered by this
NPRM and SORN. Neither the NOC nor
OPS is a ‘‘Fusion Center.’’ The purpose
of this system of records and its
authority are mandated by law (6 U.S.C.
321d) to be ‘‘the principal operations
center for the Department of Homeland
Security.’’ Through the NOC, OPS
provides real-time situational awareness
and a common operating picture to the
Department’s leadership and senior
management.
The second SORN comment was from
a public interest research center that
filed comments on the NPRM and SORN
jointly in a comingled fashion and both
are addressed in this section. The
commenter raised concerns about: (1)
Unusually broad purpose; (2) unusually
broad authority and sharing; (3)
contradictory statements about fusion
centers as state and local entities (an
issue unrelated to this proposed
rulemaking); (4) taking Privacy Act
exemptions where disclosure from the
individual is withheld; (5) removing the
use of the Privacy Act exemptions that
address ‘‘relevant and necessary;’’ (6)
the new fusion center PIA (an issue
unrelated to this proposed rulemaking);
and (7) the new suitable retention and
disposal standards. Finally, the
commenter recommends the creation of
an independent oversight mechanism to
prevent mission creep and uphold
reporting requirements (an issue
unrelated to this proposed rulemaking).
In response to the comment on broad
purpose, authority, and sharing of this
system of records (1 and 2 above), the
Department notes that the NOC is
authorized by law to be ‘‘the principal
operations center for the Department of
Homeland Security,’’ (6 U.S.C. 321d)
and this system of records allows the
NOC to fulfill this mission. Through the
NOC, OPS provides real-time situational
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awareness and a common operating
picture to the Department leadership
and senior management. The NOC
operates 24 hours a day, seven days a
week, and 365 days a year and
coordinates information sharing to help
deter, detect, and prevent terrorist acts
and to manage domestic incidents. With
regards to point 3, DHS is not being
contradictory on the nature of fusion
centers, which are state and local
entities. This system of records may
maintain information received from
fusion centers, but only when that
information is sent to the NOC by fusion
centers. Additional information on
fusion centers can be found on the
Department’s Web page at www.dhs.gov
and in the DHS/ALL/PIA–011
Department of Homeland Security State,
Local, and Regional Fusion Center
Initiative PIA, December 11, 2008,
which addresses privacy analysis on
fusion centers and is available at
www.dhs.gov/privacy.
DHS’ decision to take exemptions to
the Privacy Act (point 4) are appropriate
given the law enforcement nature of the
collection and the concern that
providing access may give individuals
the ability to contravene legitimate law
enforcement activities. DHS also notes
that as a matter of policy it reviews all
Privacy Act requests to determine
whether or not it can provide access to
the information. With regards to the
comments concerns regarding
exemptions from the ‘‘relevant and
necessary’’ standard (point 5), sufficient
means do exist to verify the accuracy of
the data and ensure that incorrect data
is not used against an individual.
System users are trained to verify
information obtained from the NOC
before including it in any analytical
reports. Verification procedures include
direct queries to the source databases
from which the information was
originally obtained, queries of
commercial or other government
databases when appropriate, and
interviews with individuals or others
who are in a position to confirm the
data. These procedures mitigate the risk
posed by inaccurate data in the system
and raise the probability that such data
will be identified and corrected before
any action is taken against an
individual. In addition, the source
systems from which the NOC obtains
information may, themselves, have
mechanisms in place to ensure the
accuracy of the data prior to the
information being shared, as outlined in
the ISE.
The commenter expressed concern
about the DHS/ALL/PIA–011
Department of Homeland Security State,
Local, and Regional Fusion Center
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Initiative PIA, December 11, 2008 (point
6) and whether it was accurate given
this system of records notice. As noted
above, this system of records does not
cover fusion centers, but may receive
information from fusion centers if it is
relevant to the purpose of this system of
records and the mission of OPS. This
PIA is currently under review for
possible update as required by law. The
commenter expressed concern about the
records retention and disposal
standards. DHS has an updated records
schedule approved by NARA for records
contained in this system of records,
Steady state (normal day-to-day) records
are kept for five years and destroyed. All
records that become part of a Phase 2 or
3 event are transferred to the National
Archives five years after the event or
case is closed for permanent retention in
the National Archives (NARA schedule
N1–563–11–010).
Finally, the commenter recommended
that the Department establish additional
independent oversight for fusion centers
beyond what currently exists at the
Department. This is outside the purview
of this rulemaking.
The third and final comment is from
a private individual. This individual
wrote to the Department to explain the
circumstances related to this
individual’s arrest by a state law
enforcement authority resulting in what
this individual believes to be faulty
information received from a state
intelligence center. The individual goes
on to detail issues related to the state’s
fusion center as it applied to this
individual’s case. The individual
requested no specific action or
amendment related to the proposed
rulemaking and the individual’s
comments were unrelated to the
proposed rulemaking.
After careful consideration of public
comments, the Department will
implement the rulemaking as proposed,
additionally the Department will not
update the Systems of Records Notice.
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.
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2. Add at the end of Appendix C to
Part 5, the following new paragraph
‘‘68’’:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
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*
*
*
*
*
68. The DHS OPS–003 Operations
Collection, Planning, Coordination,
Reporting, Analysis, and Fusion System of
Records consists of electronic and paper
records and will be used by DHS and its
components. The DHS OPS–003 Operations
Collection, Planning, Coordination,
Reporting, Analysis, and Fusion System of
Records is a repository of information held
by DHS to serve its several and varied
missions and functions. This system also
supports certain other DHS programs whose
functions include, but are 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 OPS–003 Operations Collection,
Planning, Coordination, Reporting, Analysis,
and Fusion 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. This
system is exempted from the following
provisions of the Privacy Act pursuant to 5
U.S.C. 552a(k)(1), (k)(2), (k)(3): 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 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 and
Amendment) 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
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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 1, 2012.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. 2012–13778 Filed 6–6–12; 8:45 am]
BILLING CODE 9110–9A–P
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
9 CFR Part 11
[Docket No. APHIS–2011–0030]
RIN 0579–AD43
Horse Protection Act; Requiring Horse
Industry Organizations To Assess and
Enforce Minimum Penalties for
Violations
Animal and Plant Health
Inspection Service, USDA.
ACTION: Final rule.
AGENCY:
We are amending the horse
protection regulations to require horse
industry organizations or associations
that license Designated Qualified
Persons to assess and enforce minimum
penalties for violations of the Horse
Protection Act (the Act). The regulations
currently provide that such penalties
will be set either by the horse industry
SUMMARY:
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33607
organization or association or by the
U.S. Department of Agriculture. This
action will strengthen our enforcement
of the Act by ensuring that minimum
penalties are assessed and enforced
consistently by all horse industry
organizations and associations that are
certified under the regulations by the
U.S. Department of Agriculture.
DATES: Effective Date: July 9, 2012.
FOR FURTHER INFORMATION CONTACT:
Dr. Rachel Cezar, Horse Protection
National Coordinator, Animal Care,
APHIS, 4700 River Road, Unit 84,
Riverdale, MD 20737; (301) 851–3746.
SUPPLEMENTARY INFORMATION:
Background
In 1970, Congress passed the Horse
Protection Act (15 U.S.C. 1821–1831),
referred to below as the Act or the HPA,
to eliminate the practice of soring by
prohibiting the showing or selling of
sored horses. The regulations in 9 CFR
part 11, referred to below as the
regulations, implement the Act.
In the Act, Congress found and
declared that the soring of horses is
cruel and inhumane. The Act states that
the term ‘‘sore’’ when used to describe
a horse means that the horse suffers, or
can reasonably expect to suffer, physical
pain or distress, inflammation, or
lameness when walking, trotting, or
otherwise moving as a result of:
• An irritating or blistering agent
applied, internally or externally, by a
person to any limb of a horse,
• Any burn, cut, or laceration
inflicted by a person on any limb of a
horse,
• Any tack, nail, screw, or chemical
agent injected by a person into or used
by a person on any limb of a horse, or
• Any other substance or device used
by a person on any limb of a horse or
a person has engaged in a practice
involving a horse.
(The Act excludes therapeutic treatment
by or under the supervision of a
licensed veterinarian from the definition
of ‘‘sore’’ when used to described a
horse.)
The practice of soring horses is aimed
at producing an exaggerated show gait
for competition. Typically, the forelimbs
of the horse are sored, which causes the
horse to place its hindlimbs further
forward than normal under the horse’s
body, resulting in its hindlimbs carrying
more of its body weight. When the sored
forelimbs come into contact with the
ground, causing pain, the horse quickly
extends its forelimbs and snaps them
forward. This gait is known as ‘‘the big
lick.’’
Soring is primarily used in the
training of Tennessee Walking Horses,
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]]>Agencies
[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Rules and Regulations]
[Pages 33605-33607]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13778]
========================================================================
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. 77, No. 110 / Thursday, June 7, 2012 / Rules
and Regulations
[[Page 33605]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2011-0057]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security Office of Operations Coordination and Planning--003
Operations Collection, Planning, Coordination, Reporting, Analysis, and
Fusion 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 Office of
Operations Coordination and Planning-003 Operations Collection,
Planning, Coordination, Reporting, Analysis, and Fusion System of
Records'' from certain provisions of the Privacy Act. Specifically, the
Department exempts portions of the 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 June 7, 2012.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Michael Page (202-357-7626), Privacy Point of Contact, Office of
Operations Coordination and Planning, 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:
Background
The Department of Homeland Security (DHS) Office of Operations
Coordination and Planning (OPS) published a notice of proposed
rulemaking (NPRM) in the Federal Register, on November 15, 2010 at 75
FR 69604, 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/OPS-003 Operations Collection, Planning, Coordination,
Reporting, Analysis, and Fusion System of Records.'' The DHS/OPS-003
Operations Collection, Planning, Coordination, Reporting, Analysis, and
Fusion system of records notice (SORN) was published concurrently in
the Federal Register on November 15, 2010 at 75 FR 69689, and comments
were invited on both the NPRM and SORN.
Public Comments
DHS/OPS received three comments on the NPRM and three comments on
the SORN for a total of six comments.
Comments on the NPRM
DHS/OPS received three comments on the NPRM. The first NPRM comment
was from an anonymous individual seeking to state an opinion and
requested no specific action or amendment related to the proposed
rulemaking. The second NPRM comment was from an anonymous individual
supporting the proposed rulemaking. The third NPRM comment was from a
public interest organization that filed comments on the NPRM and SORN
jointly in a comingled fashion and the comments on the SORN and NPRM
are addressed as the second SORN comment below.
Comments on the SORN
DHS/OPS also received three comments on the SORN. The first SORN
comment was from a media and academic partnership and included the
following points: (1) It is difficult for the public to comment on the
merits of the proposed rulemaking because so little information is
available on fusion centers; (2) the government has failed to make
available information requested under FOIA (an issue unrelated to this
proposed rulemaking); (3) the proposed system does not adequately
protect the public's privacy; (4) the new system will impose
significant costs (an issue unrelated to this proposed rulemaking); (5)
there is fusion center mission creep (an issue unrelated to this
proposed rulemaking); and (6) there are privacy violations in fusion
center guidelines (an issue unrelated to this proposed rulemaking).
Many of the points raised by this commenter were unrelated to the
proposed rulemaking, but the Department will address the above comments
in whole. The commenter states that there is ``insufficient public
information available on fusion centers for the public to adequately
evaluate the effect of the proposed information collection system'' and
``the expense, mission creep, and privacy effects of the proposed
database.'' In response to the issues raised by this commenter
regarding fusion centers: (1) Information on fusion centers can be
found on the Department's Web page at www.dhs.gov and in the DHS/ALL/
PIA-011 Department of Homeland Security State, Local, and Regional
Fusion Center Initiative Privacy Impact Assessment (PIA), December 11,
2008. This PIA provides a detailed discussion and privacy analysis on
fusion centers and is available at www.dhs.gov/privacy; (2) the
Department is and will continue to be responsive to FOIA requests. FOIA
requests may be sent to the Chief Privacy Officer and Chief Freedom of
Information Act Officer, Department of Homeland Security, 245 Murray
Drive SW., Building 410, STOP-0655, Washington, DC 20528; and (3) the
privacy protections of information collected by fusion centers is
covered by privacy policies of the fusion center. This DHS/OPS-003
Operations Collection, Planning, Coordination, Reporting, Analysis, and
Fusion System of Records is not the system of records exclusively
covering information collections by fusion centers. This system of
records would only cover information sent to the NOC by fusion centers,
as well as other information collections beyond information sent to the
NOC by fusion centers. Components of the Department receiving
information from fusion centers use their own SORNs on a component-by-
component basis and those SORNs can be found at www.dhs.gov/privacy.
Each of the officially-designated and operational fusion centers have
privacy policies that have been found by DHS to be ``at least
[[Page 33606]]
as comprehensive'' as the federal guidelines for protecting privacy
within the Information Sharing Environment. Many of these policies are
published on the National Fusion Center Association's public Web site
at https://www.nfcausa.org. With respect to points 4, 5, and 6, above
these are not related to this rulemaking. This NPRM and SORN do not
seek to establish a new information technology (IT) database or to
collect new information; rather this NPRM and SORN provide transparency
to OPS practices by pulling together a variety of already existing
records for a single purpose under a specific authority. It is also
worth clarifying that this NPRM and SORN do not exclusively cover
fusion centers for the Department, although the National Operations
Center (NOC) may receive information from a fusion center. Such
information may be covered by this NPRM and SORN. Neither the NOC nor
OPS is a ``Fusion Center.'' The purpose of this system of records and
its authority are mandated by law (6 U.S.C. 321d) to be ``the principal
operations center for the Department of Homeland Security.'' Through
the NOC, OPS provides real-time situational awareness and a common
operating picture to the Department's leadership and senior management.
The second SORN comment was from a public interest research center
that filed comments on the NPRM and SORN jointly in a comingled fashion
and both are addressed in this section. The commenter raised concerns
about: (1) Unusually broad purpose; (2) unusually broad authority and
sharing; (3) contradictory statements about fusion centers as state and
local entities (an issue unrelated to this proposed rulemaking); (4)
taking Privacy Act exemptions where disclosure from the individual is
withheld; (5) removing the use of the Privacy Act exemptions that
address ``relevant and necessary;'' (6) the new fusion center PIA (an
issue unrelated to this proposed rulemaking); and (7) the new suitable
retention and disposal standards. Finally, the commenter recommends the
creation of an independent oversight mechanism to prevent mission creep
and uphold reporting requirements (an issue unrelated to this proposed
rulemaking).
In response to the comment on broad purpose, authority, and sharing
of this system of records (1 and 2 above), the Department notes that
the NOC is authorized by law to be ``the principal operations center
for the Department of Homeland Security,'' (6 U.S.C. 321d) and this
system of records allows the NOC to fulfill this mission. Through the
NOC, OPS provides real-time situational awareness and a common
operating picture to the Department leadership and senior management.
The NOC operates 24 hours a day, seven days a week, and 365 days a year
and coordinates information sharing to help deter, detect, and prevent
terrorist acts and to manage domestic incidents. With regards to point
3, DHS is not being contradictory on the nature of fusion centers,
which are state and local entities. This system of records may maintain
information received from fusion centers, but only when that
information is sent to the NOC by fusion centers. Additional
information on fusion centers can be found on the Department's Web page
at www.dhs.gov and in the DHS/ALL/PIA-011 Department of Homeland
Security State, Local, and Regional Fusion Center Initiative PIA,
December 11, 2008, which addresses privacy analysis on fusion centers
and is available at www.dhs.gov/privacy.
DHS' decision to take exemptions to the Privacy Act (point 4) are
appropriate given the law enforcement nature of the collection and the
concern that providing access may give individuals the ability to
contravene legitimate law enforcement activities. DHS also notes that
as a matter of policy it reviews all Privacy Act requests to determine
whether or not it can provide access to the information. With regards
to the comments concerns regarding exemptions from the ``relevant and
necessary'' standard (point 5), sufficient means do exist to verify the
accuracy of the data and ensure that incorrect data is not used against
an individual. System users are trained to verify information obtained
from the NOC before including it in any analytical reports.
Verification procedures include direct queries to the source databases
from which the information was originally obtained, queries of
commercial or other government databases when appropriate, and
interviews with individuals or others who are in a position to confirm
the data. These procedures mitigate the risk posed by inaccurate data
in the system and raise the probability that such data will be
identified and corrected before any action is taken against an
individual. In addition, the source systems from which the NOC obtains
information may, themselves, have mechanisms in place to ensure the
accuracy of the data prior to the information being shared, as outlined
in the ISE.
The commenter expressed concern about the DHS/ALL/PIA-011
Department of Homeland Security State, Local, and Regional Fusion
Center Initiative PIA, December 11, 2008 (point 6) and whether it was
accurate given this system of records notice. As noted above, this
system of records does not cover fusion centers, but may receive
information from fusion centers if it is relevant to the purpose of
this system of records and the mission of OPS. This PIA is currently
under review for possible update as required by law. The commenter
expressed concern about the records retention and disposal standards.
DHS has an updated records schedule approved by NARA for records
contained in this system of records, Steady state (normal day-to-day)
records are kept for five years and destroyed. All records that become
part of a Phase 2 or 3 event are transferred to the National Archives
five years after the event or case is closed for permanent retention in
the National Archives (NARA schedule N1-563-11-010).
Finally, the commenter recommended that the Department establish
additional independent oversight for fusion centers beyond what
currently exists at the Department. This is outside the purview of this
rulemaking.
The third and final comment is from a private individual. This
individual wrote to the Department to explain the circumstances related
to this individual's arrest by a state law enforcement authority
resulting in what this individual believes to be faulty information
received from a state intelligence center. The individual goes on to
detail issues related to the state's fusion center as it applied to
this individual's case. The individual requested no specific action or
amendment related to the proposed rulemaking and the individual's
comments were unrelated to the proposed rulemaking.
After careful consideration of public comments, the Department will
implement the rulemaking as proposed, additionally the Department will
not update the Systems of Records Notice.
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.
[[Page 33607]]
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2. Add at the end of Appendix C to Part 5, the following new paragraph
``68'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
68. The DHS OPS-003 Operations Collection, Planning,
Coordination, Reporting, Analysis, and Fusion System of Records
consists of electronic and paper records and will be used by DHS and
its components. The DHS OPS-003 Operations Collection, Planning,
Coordination, Reporting, Analysis, and Fusion System of Records is a
repository of information held by DHS to serve its several and
varied missions and functions. This system also supports certain
other DHS programs whose functions include, but are 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 OPS-003 Operations Collection, Planning, Coordination,
Reporting, Analysis, and Fusion 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. This system
is exempted from the following provisions of the Privacy Act
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3): 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) (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 and Amendment) 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 1, 2012.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2012-13778 Filed 6-6-12; 8:45 am]
BILLING CODE 9110-9A-P
