[Federal Register Volume 75, Number 219 (Monday, November 15, 2010)]
[Proposed Rules]
[Pages 69604-69606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28572]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2010-0053]


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: Notice of proposed rulemaking.

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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 Office of 
Operations Coordination and Planning--003 Operations Collection, 
Planning, Coordination, Reporting, Analysis, and Fusion 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 December 15, 2010.

ADDRESSES: You may submit comments, identified by docket number DHS-
2010-0053, by one of the following methods:
    <bullet> Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Fax: 703-483-2999.
    <bullet> 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 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: 
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-

[[Page 69605]]

0780), Chief Privacy Officer, Privacy Office, Department of Homeland 
Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION: Background: In accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) 
Office of Operations Coordination and Planning (OPS), including the 
National Operations Center (NOC), proposes to establish a new DHS 
system of records titled, ``DHS/OPS--003 Operations Collection, 
Planning, Coordination, Reporting, Analysis, and Fusion System of 
Records.''
    This system of records will allow DHS/OPS, including the NOC, to 
collect, plan, coordinate, report, analyze, and fuse information 
related to all-threats and all-hazards, law enforcement activities, 
intelligence activities, man-made disasters and acts of terrorism, 
natural disasters, and other information collected or received from 
Federal, State, local, tribal, and territorial agencies and 
organizations; foreign governments and international organizations; 
domestic security and emergency management officials; and private 
sector entities or individuals into the Department.
    OPS serves as a joint operations coordination and planning 
capability at the strategic level to support internal DHS operational 
decision making, DHS leadership, and participation in interagency 
operations. OPS integrates DHS and interagency planning and operations 
coordination in order to prevent, protect, and respond to and recover 
from all-threats and all-hazards, man-made disasters and acts of 
terrorism, and natural disasters.
    The NOC serves as the nation's homeland security center for 
information sharing and domestic incident management, dramatically 
increasing coordination between federal, state, local, tribal, and 
territorial agencies and organizations; foreign governments and 
international organizations; domestic security and emergency management 
officials; and private sector entities or individuals. The NOC collects 
and fuses information from a variety of sources everyday to help deter, 
detect, and prevent terrorist acts as well as to prepare for, respond 
to, and recover from all-threats and all-hazards, man-made disasters 
and acts of terrorism, and natural disasters. Operating 24 hours a day, 
seven days a week, 365 days a year, the NOC provides real-time 
situational awareness and monitoring of the homeland, coordinates 
incident and response activities, and, in conjunction with other DHS 
components, issues advisories and bulletins concerning threats to 
homeland security, including natural disasters, as well as specific 
protective measures. Information on domestic incident management is 
shared with state Fusion Centers and Emergency Operations Centers (EOC) 
at all levels through Watch Officer Desks located in the NOC.
    The purpose of this system is to:
    1. Collect, plan, coordinate, and analyze all-threats and all-
hazards, law enforcement activities, intelligence activities, man-made 
disasters and acts of terrorism, natural disasters, and other 
information collected or received from Federal, State, local, tribal, 
and territorial agencies and organizations; foreign governments and 
international organizations; domestic security and emergency management 
officials; and private sector entities or individuals; and
    2. Report, integrate, and fuse such information throughout DHS in 
order to share information, increase coordination, identify and assess 
the nature and scope of information and understand risks in light of 
potential or actual vulnerabilities to the homeland; and help deter, 
detect, and prevent terrorist acts as well as to prepare for, respond 
to, and recover from all-threats and all-hazards, man-made disasters 
and acts of terrorism, and natural disasters.
    DHS is authorized to implement this program primarily through 5 
U.S.C. 301, 552, 552a; 44 U.S.C. 3101; 6 U.S.C. 121; Sec. Sec.  201 and 
514 of the Homeland Security Act of 2002, as amended; Sec.  520 of the 
Post Katrina Emergency Management Reform Act; 44 U.S.C. 3101; Executive 
Order (E.O.) 12958; E.O. 9397; E.O. 12333; E.O. 13356; E.O. 13388; and 
Homeland Security Presidential Directive 5. This system has an effect 
on individual privacy that is balanced by the need to collect, plan, 
coordinate, report, analyze, and fuse homeland security information 
coming into and going out of OPS, including the NOC. Routine uses 
contained in this notice include sharing with the Department of Justice 
(DOJ) for legal advice and representation; to a congressional office at 
the request of an individual; to the National Archives and Records 
Administration (NARA) for records management; to contractors in support 
of their contract assignment to DHS; to appropriate Federal, State, 
tribal, local, international, foreign agency, or other appropriate 
entity including the privacy sector in their role aiding OPS in their 
mission; to agencies, organizations or individuals for the purpose of 
audit; to agencies, entities, or persons during a security or 
information compromise or breach; to an agency, organization, or 
individual when there could potentially be a risk of harm to an 
individual; and to the news media in the interest of the public. A 
review of this system is being conducted to determine if the system of 
records collects information under the Paperwork Reduction Act (PRA).
    Consistent with DHS's information sharing mission, information 
contained in the DHS/OPS--003 Collection, Planning, Coordination, 
Reporting, Analysis, and Fusion System of Records may be shared with 
other DHS components, as well as appropriate Federal, State, local, 
tribal, territorial, foreign, or international government agencies. 
This sharing will only take place after DHS determines that the 
receiving component or agency has a verifiable need to know the 
information to carry out national security, law enforcement, 
immigration, intelligence, or other functions consistent with the 
routine uses set forth in this system of records notice.
    The information within this system that meets the functional 
standard of the National Suspicious Activity Reporting Initiative will 
be placed into the DHS/ALL--031 Information Sharing Environment 
Suspicious Activity Reporting Initiative (September 10, 2010, 75 FR 
55335).
    The Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States 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. 
Individuals may request their own records that are maintained in a 
system of records in the possession or under the control of DHS by 
complying with DHS Privacy Act regulations, 6 CFR part 5.
    The Privacy Act requires each agency to publish in the Federal 
Register a description of the type and character of each system of 
records that the agency maintains, and the routine uses that are 
contained in each system in order to make agency recordkeeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals in finding such files within the agency.
    The Privacy Act allows Government agencies to exempt certain 
records from

[[Page 69606]]

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/OPS--003 Operations Collection, Planning, Coordination, 
Reporting, Analysis, and Fusion System of Records. Some information in 
DHS/OPS--003 Operations Collection, Planning, Coordination, Reporting, 
Analysis, and Fusion System of Records relates to official DHS national 
security, law enforcement, immigration, 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; 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; and 
to safeguard classified information. 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.

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 ``53'':

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    53. 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/
OPS. The DHS/OPS--003 Operations Collection, Planning, Coordination, 
Reporting, Analysis, and Fusion 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. 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.
    The Secretary of Homeland Security is exempting this system from 
the following provisions of the Privacy Act, subject to limitations 
set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I); and (f) pursuant to 5 U.S.C. 552a (k)(1), (k)(2), and 
(k)(3). 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 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 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: November 5, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2010-28572 Filed 11-12-10; 8:45 am]
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