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

55290 

Vol. 75, No. 175 

Friday, September 10, 2010 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2010–0076] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security/ALL–031 Information Sharing 

Environment Suspicious Activity 

Reporting Initiative System of Records 

AGENCY: Privacy Office, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security is giving concurrent notice of a 

newly established system of records 

pursuant to the Privacy Act of 1974 for 

the ‘‘Department of Homeland Security/ 

ALL–031 Information Sharing 

Environment Suspicious Activity 

Reporting Initiative System of Records’’ 

and this proposed rulemaking. In this 

proposed rulemaking, the Department 

proposes to exempt portions of the 

system of records from one or more 

provisions of the Privacy Act because of 

criminal, civil, and administrative 

enforcement requirements. 

DATES: Comments must be received on 

or before October 12, 2010. 

ADDRESSES: You may submit comments, 

identified by docket number DHS– 

2010–0076, by one of the following 

methods: 

• Federal e-Rulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 703–483–2999. 

• Mail: Mary Ellen Callahan, Chief 

Privacy Officer, Privacy Office, 

Department of Homeland Security, 

Washington, DC 20528. 

• Instructions: All submissions 

received must include the agency name 

and docket number for this rulemaking. 

All comments received will be posted 

without change to http://

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. 

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 

general questions please contact: Ronald 

Athmann (202–447–4332), Office of 

Intelligence and Analysis, Department 

of Homeland Security, Washington, DC 

20528. For privacy issues please 

contact: Mary Ellen Callahan (703–235– 

0780), Chief Privacy Officer, Privacy 

Office, Department of Homeland 

Security, Washington, DC 20528. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In accordance with the Privacy Act of 

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

Homeland Security (DHS) proposes to 

establish a new DHS system of records 

titled, ‘‘DHS/ALL–031 Information 

Sharing Environment (ISE) Suspicious 

Activity Reporting (SAR) Initiative 

System of Records.’’ 

This system of records will allow DHS 

components that produce, receive, and 

store suspicious activity reports (SARs) 

pursuant to their existing authorities, 

responsibilities, platforms, and 

programs to compile and share report 

data that also meet the ISE–SAR 

Functional Standard with authorized 

participants in the Nationwide SAR 

Initiative (NSI) including, federal 

departments and agencies, state, local 

and tribal law enforcement agencies, 

and the private sector. The NSI is one 

of a number of government-wide efforts 

designed to implement guidelines first 

issued by the President on December 16, 

2005, for establishing the ISE pursuant 

to section 1016 of the Intelligence 

Reform and Terrorism Prevention Act of 

2004 (IRTPA), as amended. The NSI 

establishes a nationwide capability to 

gather, document, process, analyze and 

share information about suspicious 

activity, incidents, or behavior 

reasonably indicative of terrorist 

activities (hereafter collectively referred 

to as suspicious activity or activities) to 

enable rapid identification and 

mitigation of potential terrorist threats. 

There is a long history of 

documenting of suspicious activity, 

particularly in the law enforcement 

community; these reports are sometimes 

referred to as suspicious activity reports, 

tips and leads, or other similar terms. 

Federal, state, local and tribal agencies, 

and private sector currently collect and 

document suspicious activities in 

support of their responsibilities to 

investigate and prevent potential 

crimes, protect citizens, and apprehend 

and prosecute criminals. Since some of 

these documented activities may bear a 

nexus to terrorism, the Program 

Manager for the Information Sharing 

Environment (PM–ISE) has developed a 

standardized process for identifying, 

documenting, and sharing terrorismrelated SAR data (hereinafter referred to 

an ‘‘ISE–SAR’’), which meet the 

definition and criteria set forth in the 

ISE Functional Standard Suspicious 

Activity Reporting, (Version 1.5, May 

2009) to the maximum extent possible 

consistent with the protection of 

individual privacy, civil rights, and civil 

liberties. The Functional Standard 

defines an ISE–SAR as official 

documentation of observed behavior 

determined to have a potential nexus to 

terrorism (i.e., to be reasonably 

indicative of criminal activity associated 

with terrorism). 

Several operational components 

within DHS regularly observe or 

otherwise encounter suspicious 

activities while executing their 

authorized missions and performing 

operational duties. Components 

document those observations or 

encounters in SARs. Across the 

Department the operational setting or 

context for activities reported in SARs 

are as varied as the Department’s 

mission responsibilities. Engagement 

with the NSI will alter neither those 

underlying mission functions nor upset 

the current methodologies employed by 

DHS components collecting information 

on suspicious activities and issuing 

SARs. Rather, the NSI will facilitate the 

more effective sharing and discovery— 

both internally and between DHS and 

external NSI participants—by 

incorporating a standardized 

technological and functional approach 

for recording and storing ISE–SARs 

throughout DHS. Once training in the 

NSI program and the application of 

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Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Proposed Rules 55291 

these technical and functional 

standards, DHS personnel will review 

component SARs and submit the data 

only from those that meet the ISE–SAR 

Functional Standard into the NSI 

Shared Space. 

II. Privacy Act 

The Privacy Act embodies fair 

information practice principles in a 

statutory framework governing the 

means by which the U.S. Government 

collects, maintains, uses, and 

disseminates personally identifiable 

information. The Privacy Act applies to 

information that is maintained in a 

‘‘system of records.’’ A ‘‘system of 

records’’ is a group of any records under 

the control of an agency from which 

information is retrieved by the name of 

the individual or by some identifying 

number, symbol, or other identifying 

particular assigned to the individual. In 

the Privacy Act, an individual is defined 

to encompass U.S. citizens and lawful 

permanent residents. As a matter of 

policy, DHS extends administrative 

Privacy Act protections to all 

individuals where systems of records 

maintain information on U.S. citizens, 

lawful permanent residents, and 

visitors. 

The Privacy Act allows government 

agencies to exempt certain records from 

the access and amendment provisions. If 

an agency claims an exemption, 

however, it must issue a Notice of 

Proposed Rulemaking to make clear to 

the public the reasons why a particular 

exemption is claimed. 

DHS is claiming exemptions from 

certain requirements of the Privacy Act 

for DHS/ALL–031 ISE SAR Program 

System of Records. Some information in 

the DHS/ALL–031 ISE SAR Program 

System of Records relates to official 

DHS national security, law enforcement, 

immigration, intelligence activities, and 

protective services to the President of 

the U.S. or other individuals pursuant to 

Section 3056 and 3056A of Title 18. 

These exemptions are needed to protect 

information relating to DHS activities 

from disclosure to subjects or others 

related to these activities. Specifically, 

the exemptions are required to preclude 

subjects of these activities from 

frustrating these processes; to avoid 

disclosure of activity techniques; to 

protect the identities and physical safety 

of confidential informants and law 

enforcement personnel; to ensure DHS’ 

ability to obtain information from third 

parties and other sources; to protect the 

privacy of third parties; to safeguard 

classified information; and to safeguard 

records in connection with providing 

protective services to the President of 

the U.S. or other individuals pursuant to 

Section 3056 and 3056A of Title 18. 

Disclosure of information to the subject 

of the inquiry could also permit the 

subject to avoid detection or 

apprehension. 

The exemptions proposed here are 

standard law enforcement and national 

security exemptions exercised by a large 

number of federal law enforcement and 

intelligence agencies. In appropriate 

circumstances, where compliance 

would not appear to interfere with or 

adversely affect the law enforcement 

purposes of this system and the overall 

law enforcement process, the applicable 

exemptions may be waived on a case by 

case basis. 

A notice of system of records for DHS/ 

ALL–031 ISE SAR Initiative System of 

Records is also published in this issue 

of the Federal Register. 

List of Subjects in 6 CFR Part 5 

Freedom of information; Privacy. 

For the reasons stated in the 

preamble, DHS proposes to amend 

Chapter I of Title 6, Code of Federal 

Regulations, as follows: 

PART 5—DISCLOSURE OF RECORDS 

AND INFORMATION 

1. The authority citation for Part 5 

continues to read as follows: 

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

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

Subpart A also issued under 5 U.S.C. 552. 

Subpart B also issued under 5 U.S.C. 552a. 

2. Add at the end of Appendix C to 

Part 5, the following new paragraph 

‘‘52’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

52. The DHS/ALL–031 ISE SAR Initiative 

System of Records consists of electronic 

records and will be used by DHS and its 

components. The DHS/ALL–031 ISE SAR 

Initiative System of Records is a repository of 

information held by DHS in connection with 

its several and varied missions and functions, 

including, but not limited to the enforcement 

of civil and criminal laws; investigations, 

inquiries, and proceedings there under; 

national security and intelligence activities; 

and protection of the President of the U.S. or 

other individuals pursuant to Section 3056 

and 3056A of Title 18. The DHS/ALL–031 

ISE SAR Initiative System of Records 

contains information that is collected by, on 

behalf of, in support of, or in cooperation 

with DHS, its components, as well as other 

federal, state, local, tribal, or foreign agencies 

or private sector organization and may 

contain personally identifiable information 

collected by other federal, state, local, tribal, 

foreign, or international government 

agencies. The Secretary of Homeland 

Security has exempted this system from the 

following provisions of the Privacy Act, 

subject to the limitations set forth in 5 U.S.C. 

552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), 

(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), and 

(e)(12); (f); (g)(1); and (h) of the Privacy Act 

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

the Secretary of Homeland Security has 

exempted this system from the following 

provisions of the Privacy Act, subject to the 

limitation set forth in 5 U.S.C. 552a(c)(3); (d); 

(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) of 

the Privacy Act pursuant to 5 U.S.C. 

552a(k)(2), and (k)(3). Exemptions from these 

particular subsections are justified, on a caseby-case basis to be determined at the time a 

request is made, for the following reasons: 

(a) From subsection (c)(3) and (c)(4) 

(Accounting for Disclosures) because release 

of the accounting of disclosures could alert 

the subject of an investigation of an actual or 

potential criminal, civil, or regulatory 

violation to the existence of that investigation 

and reveal investigative interest on the part 

of DHS as well as the recipient agency. 

Disclosure of the accounting would therefore 

present a serious impediment to law 

enforcement efforts and/or efforts to preserve 

national security. Disclosure of the 

accounting would also permit the individual 

who is the subject of a record to impede the 

investigation, to tamper with witnesses or 

evidence, and to avoid detection or 

apprehension, which would undermine the 

entire investigative process. 

(b) From subsection (d) (Access to Records) 

because access to the records contained in 

this system of records could inform the 

subject of an investigation of an actual or 

potential criminal, civil, or regulatory 

violation to the existence of that investigation 

and reveal investigative interest on the part 

of DHS or another agency. Access to the 

records could permit the individual who is 

the subject of a record to impede the 

investigation, to tamper with witnesses or 

evidence, and to avoid detection or 

apprehension. Amendment of the records 

could interfere with ongoing investigations 

and law enforcement activities and would 

impose an unreasonable administrative 

burden by requiring investigations to be 

continually reinvestigated. In addition, 

permitting access and amendment to such 

information could disclose security-sensitive 

information that could be detrimental to 

homeland security. 

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

Necessity of Information) because in the 

course of investigations into potential 

violations of federal law, the accuracy of 

information obtained or introduced 

occasionally may be unclear, or the 

information may not be strictly relevant or 

necessary to a specific investigation. In the 

interests of effective law enforcement, it is 

appropriate to retain all information that may 

aid in establishing patterns of unlawful 

activity. 

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

Information from Individuals) because 

requiring that information be collected from 

the subject of an investigation would alert the 

subject to the nature or existence of the 

investigation, thereby interfering with that 

investigation and related law enforcement 

activities. 

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

Subjects) because providing such detailed 

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55292 Federal Register / Vol. 75, No. 175 / Friday, September 10, 2010 / Proposed Rules 

information could impede law enforcement 

by compromising the existence of a 

confidential investigation or reveal the 

identity of witnesses or confidential 

informants. 

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

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

(Agency Rules), because portions of this 

system are exempt from the individual access 

provisions of subsection (d) for the reasons 

noted above, and therefore DHS is not 

required to establish requirements, rules, or 

procedures with respect to such access. 

Providing notice to individuals with respect 

to existence of records pertaining to them in 

the system of records or otherwise setting up 

procedures pursuant to which individuals 

may access and view records pertaining to 

themselves in the system would undermine 

investigative efforts and reveal the identities 

of witnesses, and potential witnesses, and 

confidential informants. 

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

Information) because with the collection of 

information for law enforcement purposes, it 

is impossible to determine in advance what 

information is accurate, relevant, timely, and 

complete. Compliance with subsection (e)(5) 

would preclude DHS agents from using their 

investigative training and exercise of good 

judgment to both conduct and report on 

investigations. 

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

Individuals) because compliance would 

interfere with DHS’s ability to obtain, serve, 

and issue subpoenas, warrants, and other law 

enforcement mechanisms that may be filed 

under seal and could result in disclosure of 

investigative techniques, procedures, and 

evidence. 

(i) From subsection (e)(12) (Computer 

Matching) if the agency is a recipient agency 

or a source agency in a matching program 

with a non-Federal agency, with respect to 

any establishment or revision of a matching 

program, at least 30 days prior to conducting 

such program, publish in the Federal Register 

notice of such establishment or revision. 

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

to the extent that the system is exempt from 

other specific subsections of the Privacy Act. 

(k) From subsection (h) (Legal Guardians) 

the parent of any minor, or the legal guardian 

of any individual who has been declared to 

be incompetent due to physical or mental 

incapacity or age by a court of competent 

jurisdiction, may act on behalf of the 

individual. 

Dated: September 7, 2010. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2010–22639 Filed 9–9–10; 8:45 am] 

BILLING CODE 9110–9B–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1250 

[Doc. No. AMS–PY–08–0032] 

Amendment to Egg Research and 

Promotion Order and Regulations To 

Increase the Rate of Assessment and 

Referendum Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule and notice of 

referendum. 

SUMMARY: This proposed rule would 

amend the Egg Research and Promotion 

Order (Order) to increase the assessment 

rate on egg producers paying 

assessments to the American Egg Board 

(AEB) from 10 cents to 15 cents per 

30-dozen case of commercial eggs, 

provided the increase is approved by 

egg producers voting in a referendum. 

This proposal would also make a 

conforming amendment to the 

regulations. Notice also is hereby given 

that the Agricultural Marketing Service 

(AMS) will conduct a referendum to 

determine whether egg producers favor 

the increase in the assessment rate. 

DATES: For the purpose of determining 

voter eligibility, the representative 

production period is the period January 

1, 2009, through December 31, 2009. 

The referendum will be held during the 

period October 29 through November 

19, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Angela C. Snyder, Research and 

Promotion; Standards, Promotion & 

Technology Branch; Poultry Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Room 3932–S, 

Washington, DC 20250–0256; telephone: 

(202) 720–4476; fax: (202) 720–2930; or 

e-mail: Angie.Snyder@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has waived the review process 

required by Executive Order 12866 for 

this action. 

Executive Order 12988 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. The rule is not intended 

to have a retroactive effect. 

The Egg Research and Consumer 

Information Act (Act) provides that 

administrative proceedings must be 

exhausted before parties may file suit in 

court. Section 14 of the Act allows those 

subject to the Order to file a written 

petition with the Secretary of 

Agriculture (Secretary) if they believe 

that the Order, any provision of the 

Order, or any obligation imposed in 

connection with the Order, is not in 

accordance with the law. In any 

petition, the person may request a 

modification of the Order or an 

exemption from the Order. The 

petitioner will have the opportunity for 

a hearing on the petition. Afterwards, an 

Administrative Law Judge (ALJ) will 

issue a decision. If the petitioner 

disagrees with the ALJ’s ruling, the 

petitioner has 30 days to appeal to the 

Judicial Officer, who will issue a ruling 

on behalf of the Secretary. If the 

petitioner disagrees with the Secretary’s 

ruling, the petitioner may file, within 20 

days, an appeal in the U.S. District 

Court for the district where the 

petitioner resides or conducts business. 

Initial Regulatory Flexibility Act 

Analysis and Paperwork Reduction Act 

In accordance with the Regulatory 

Flexibility Act (RFA) [5 U.S.C. 601– 

612], AMS has considered the economic 

impact of this action on the small 

producers that would be affected by this 

rule. The purpose of the RFA is to fit 

regulatory action to scale on businesses 

subject to such action so that small 

businesses will not be 

disproportionately burdened. 

According to AEB, approximately 245 

producers are subject to the provisions 

of the Order, including paying 

assessments. Under the current Order, 

producers in the 48 contiguous United 

States and the District of Columbia who 

own more than 75,000 laying hens each 

currently pay a mandatory assessment 

of 10 cents per 30-dozen case of eggs. 

Handlers are responsible for collecting 

and remitting assessments to AEB. 

There are approximately 160 egg 

handlers who collect assessments. 

Assessments under the program are 

used by AEB to finance promotion, 

research, and consumer information 

programs designed to increase consumer 

demand for eggs in domestic and 

international markets. At the current 

rate of 10 cents per 30-dozen case, 

assessments generate about $20 million 

in annual revenues. The Order is 

administered by AEB under supervision 

of the U.S. Department of Agriculture. 

In 13 CFR part 121, the Small 

Business Administration (SBA) defines 

small agricultural producers as those 

having annual receipts of no more than 

$750,000 and small agricultural service 

firms as those having annual receipts of 

no more than $7 million. Under this 

definition, the vast majority of the egg 

producers that would be affected by this 

rule would not be considered small 

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