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.

Rules and Regulations Federal Register

81787 

Vol. 76, No. 250 

Thursday, December 29, 2011 

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 


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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 

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 

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 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 250 / Thursday, December 29, 2011 / Rules and Regulations 81789 

1Section 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. 

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 

DEPARTMENT OF AGRICULTURE 

Rural Business-Cooperative Service 

7 CFR Part 4274 

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. 

* * * * * 

[FR Doc. 2011–33527 Filed 12–28–11; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Part 1292 

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: 

* * * * * 

[FR Doc. 2011–33530 Filed 12–28–11; 8:45 am] 

BILLING CODE 1505–01–D 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 345 

Community Reinvestment 

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 

BUREAU OF CONSUMER FINANCIAL 

PROTECTION 

12 CFR Part 1013 

[Docket No. CFPB–2011–0026] 

RIN 3170–AA06 

Consumer Leasing (Regulation M); 

Correction 

AGENCY: Bureau of Consumer Financial 

Protection. 

ACTION: Interim final rule; correction. 

SUMMARY: 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. 


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