This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

80667 

Vol. 85, No. 240 

Monday, December 14, 2020 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2020–0014] 

RIN 1601–AA98 

Privacy Act of 1974: Implementation of 

Exemptions; U.S. Department of 

Homeland Security/ALL–046 

Counterintelligence Program System 

of Records 

AGENCY: Office of the Secretary, U.S. 

Department of Homeland Security. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Department of 

Homeland Security is giving concurrent 

notice of a new system of records 

pursuant to the Privacy Act of 1974 for 

the ‘‘U.S. Department of Homeland 

Security/ALL–046 Counterintelligence 

Program System of Records’’ and this 

proposed rulemaking. In this proposed 

rulemaking, the Department proposes to 

exempt portions of the system of records 

from one or more provisions of the 

Privacy Act because of 

counterintelligence, criminal, civil, and 

administrative investigative and 

enforcement requirements. 

DATES: Comments must be received on 

or before January 13, 2021. 

ADDRESSES: You may submit comments, 

identified by docket number DHS– 

2020–0014 by one of the following 

methods: 

• Federal e-Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 202–343–4010. 

• Mail: Constantina Kozanas, Chief 

Privacy Officer, Privacy Office, U.S. 

Department of Homeland Security, 

Washington, DC 20528–0655. 

Instructions: All submissions received 

must include the agency name and 

docket number for this notice. All 

comments received will be posted 

without change to http://

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: For 

questions please contact: Constantina 

Kozanas, (202–343–1717), Chief Privacy 

Officer, Privacy Office, U.S. Department 

of Homeland Security, Washington, DC 

20528–0655. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In accordance with the Privacy Act of 

1974, 5 U.S.C. 552a, the U.S. 

Department of Homeland Security 

(DHS) proposes to create a new DHS 

system of records titled ‘‘DHS/ALL–046 

Counterintelligence Program System of 

Records.’’ 

DHS developed the 

Counterintelligence (CI) Program to 

identify, deceive, exploit, disrupt, or 

protect against espionage, other 

intelligence activities, sabotage, or 

assassinations conducted for or on 

behalf of Foreign Intelligence Entities 

(FIE). FIEs are known or suspected 

foreign state or non-state organizations 

or persons that conduct intelligence 

activities to acquire information about 

the United States, block or impair 

intelligence collection by the United 

States Government, influence United 

States policy, or disrupt systems and 

programs owned or operated by or 

within the United States, all of which 

may impact or influence DHS 

operations and missions. The term 

includes foreign intelligence and 

security services, international 

terrorists, transnational criminal 

organizations, and drug trafficking 

organizations conducting intelligencerelated activities. 

DHS is issuing this notice of proposed 

rulemaking to exempt this system of 

records from certain provisions of the 

Privacy Act. The system of records 

notice is published elsewhere in this 

Federal Register. This newly 

established system will be included in 

DHS’s inventory of record systems. 

II. Privacy Act 

The Privacy Act embodies fair 

information practice principles in a 

statutory framework governing the 

means by which Federal Government 

agencies collect, maintain, use, and 

disseminate individuals’ records. The 

Privacy Act applies to information that 

is maintained in a ‘‘system of records.’’ 

A ‘‘system of records’’ is a group of any 

records under the control of an agency 

from which information is retrieved by 

the name of the individual or by some 

identifying number, symbol, or other 

identifying particular assigned to the 

individual. In the Privacy Act, an 

individual is defined to encompass U.S. 

citizens and lawful permanent 

residents. Additionally, and similarly, 

the Judicial Redress Act (JRA) provides 

a statutory right to covered persons to 

make requests for access and 

amendment to covered records, as 

defined by the JRA, along with judicial 

review for denials of such requests. In 

addition, the JRA prohibits disclosures 

of covered records, except as otherwise 

permitted by the Privacy Act. 

The Privacy Act allows Government 

agencies to exempt certain records from 

the access and amendment provisions. If 

an agency claims an exemption, 

however, it must issue a notice of 

proposed rulemaking to make clear to 

the public the reasons why a particular 

exemption is claimed. 

DHS is claiming exemptions from 

certain requirements of the Privacy Act 

for DHS/ALL–046 Counterintelligence 

Program System of Records. Some 

information in this system relates to 

official DHS national security, law 

enforcement, counterintelligence, and 

intelligence activities. These 

exemptions are needed to protect 

information relating to DHS activities 

from disclosure to subjects or others 

related to these activities. Specifically, 

the exemptions are required to: preclude 

subjects of these activities from 

frustrating these processes; avoid 

disclosure of counterintelligence 

sources, assets and methods, inquiries 

and investigations; protect the identities 

and physical safety of confidential 

informants and law enforcement 

personnel; ensure DHS’s ability to 

obtain information from third parties 

and other sources; protect the privacy of 

third parties; and safeguard classified 

information. Disclosure of a 

counterintelligence inquiry or 

investigation, to the subject of said 

inquiry or investigation, could have an 

adverse effect on the outcome of the 

inquiry or investigation. 

In appropriate circumstances, when 

compliance would not appear to 


jbell on DSKJLSW7X2PROD with PROPOSALS
80668 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Proposed Rules 

interfere with or adversely affect the law 

enforcement and counterintelligence 

purposes of this system and the overall 

law enforcement process, the applicable 

exemptions may be waived on a case by 

case basis. 

A notice of system of records DHS/ 

ALL–046 Counterintelligence Program 

System of Records is also publishing 

elsewhere in this issue of the Federal 

Register. 

List of Subjects in 6 CFR Part 5 

Freedom of information; Privacy. 

For the reasons stated in the 

preamble, DHS proposes to amend 

chapter I of title 6, Code of Federal 

Regulations, as follows: 

PART 5—DISCLOSURE OF RECORDS 

AND INFORMATION 

■ 1. The authority citation for part 5 

continues to read in part as follows: 

Authority: 6 U.S.C. 101 et seq.; Pub. L. 

107–296, 116 Stat. 2135; 5 U.S.C. 301. 

* * * * * 

■ 2. In appendix C to part 5, add 

paragraph 83 to read as follows: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

83. The DHS/ALL–046 Counterintelligence 

Program System of Records consists of 

electronic and paper records and will be used 

by DHS and its components. The DHS/ALL– 

046 Counterintelligence Program System of 

Records covers information held by DHS in 

connection with various missions and 

functions, including, but not limited to the 

enforcement of civil and criminal laws; 

investigations, inquiries, and proceedings 

there under; and national security and 

intelligence activities. The system of records 

covers 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, 

pursuant to 5 U.S.C. 552a(j)(2), has exempted 

this system from the following provisions of 

the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); 

(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 

(e)(4)(I), (e)(5), (e)(8), (e)(12); (f); and (g)(1). 

Additionally, the Secretary of Homeland 

Security, pursuant to 5 U.S.C. 552a(k)(1), 

(k)(2), and (k)(5), has exempted this system 

from the following provisions of the Privacy 

Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), 

(e)(4)(H), (e)(4)(I); and (f). 

Where a record received from another 

system has been exempted in that source 

system under 5 U.S.C. 552a(j)(2), 5 U.S.C. 

552a(k)(1), (k)(2), and (k)(5), DHS will claim 

the same exemptions for those records that 

are claimed for the original primary systems 

of records from which they originated and 

claims any additional exemptions set forth 

here. 

Exemptions from these particular 

subsections are justified on a case-by-case 

basis and determined at the time a request is 

made, for the following reasons: 

(a) From subsection (c)(3) and (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 and the recipient agency. Disclosure 

of the accounting would therefore present a 

serious impediment to law enforcement 

efforts and efforts to preserve national 

security. Disclosure of the accounting would 

also permit 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. When an 

investigation has been completed, 

information on disclosures made may 

continue to be exempted if the fact that an 

investigation occurred remains sensitive after 

completion. 

(b) From subsection (d) (Access and 

Amendment to Records) because providing 

access or permitting amendment 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 subject of a 

record to impede the investigation, to tamper 

with witnesses or evidence, and to avoid 

detection or apprehension. Amendment of 

the records could interfere with ongoing 

investigations and law enforcement activities 

and would impose an unreasonable 

administrative burden by requiring 

investigations to be continually 

reinvestigated. In addition, permitting access 

and amendment to such information could 

disclose security-sensitive information that 

could be detrimental to homeland security. 

(c) From subsection (e)(1) (Relevancy and 

Necessity of Information) because in the 

course of investigations into potential 

violations of federal law, the accuracy of 

information obtained or introduced 

occasionally may be unclear, or the 

information may not be strictly relevant or 

necessary to a specific investigation. In the 

interests of effective law enforcement, it is 

appropriate to retain all information that may 

aid in establishing patterns of unlawful 

activity. 

(d) From subsection (e)(2) (Collection of 

Information from Individuals) because 

requiring that information be collected from 

the subject of an investigation would alert the 

subject to the nature or existence of the 

investigation, thereby interfering with that 

investigation and related law enforcement 

activities. 

(e) From subsection (e)(3) (Notice to 

Subjects) because providing such detailed 

information could impede law enforcement 

by compromising the existence of a 

confidential investigation or reveal the 

identity of witnesses or confidential 

informants. 

(f) From subsections (e)(4)(G), (e)(4)(H), 

and (e)(4)(I) (Agency Requirements) and (f) 

(Agency Rules), because portions of this 

system are exempt from the individual access 

provisions of subsection (d) for the reasons 

noted above, and therefore DHS is not 

required to establish requirements, rules, or 

procedures with respect to such access. 

Providing notice to individuals with respect 

to existence of records pertaining to them in 

the system of records or otherwise setting up 

procedures pursuant to which individuals 

may access and view records pertaining to 

themselves in the system would undermine 

investigative efforts and reveal the identities 

of witnesses, and potential witnesses, and 

confidential informants. 

(g) From subsection (e)(5) (Collection of 

Information) because with the collection of 

information for law enforcement purposes, it 

is impossible to determine in advance what 

information is accurate, relevant, timely, and 

complete. Compliance with subsection (e)(5) 

would preclude DHS agents from using their 

investigative training and exercise of good 

judgment to both conduct and report on 

investigations. 

(h) From subsection (e)(8) (Notice on 

Individuals) because compliance would 

interfere with DHS’s ability to obtain, serve, 

and issue subpoenas, warrants, and other law 

enforcement mechanisms that may be filed 

under seal and could result in disclosure of 

investigative techniques, procedures, and 

evidence. 

(i) From subsection (e)(12) (Matching 

Agreements) because requiring DHS to 

provide notice of a new or revised matching 

agreement with a non-Federal agency, if one 

existed, would impair DHS operations by 

indicating which data elements and 

information are valuable to DHS’s analytical 

functions, thereby providing harmful 

disclosure of information to individuals who 

would seek to circumvent or interfere with 

DHS’s missions. 

(j) From subsection (g)(1) (Civil Remedies) 

to the extent that the system is exempt from 

other specific subsections of the Privacy Act. 

Constantina Kozanas, 

Chief Privacy Officer, U.S. Department of 

Homeland Security. 

[FR Doc. 2020–27314 Filed 12–11–20; 8:45 am] 

BILLING CODE 9110–9N–P 

DEPARTMENT OF AGRICULTURE 

Food Safety and Inspection Service 

9 CFR Part 439 

[Docket No. FSIS–2016–0026] 

RIN 0583–AD70 

Changes to Accreditation of NonFederal Analytical Testing 

Laboratories. 

AGENCY: Food Safety and Inspection 

Service, USDA. 

ACTION: Proposed rule. 

SUMMARY: FSIS is proposing to revise 

the regulations prescribing the statistical 


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