[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Rules and Regulations]
[Pages 42578-42579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20155]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0064]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL--024 Facility and Perimeter Access Control and 
Visitor Management System of Records

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of a Department-wide system of 
records entitled the ``Department of Homeland Security/ALL--024 
Facility and Perimeter Access Control and Visitor Management System of 
Records'' from certain provisions of the Privacy Act. Specifically, the 
Department exempts portions of the Department of Homeland Security/
ALL--024 Facility and Perimeter Access Control and Visitor Management 
system 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 August 24, 2009.

FOR FURTHER INFORMATION CONTACT: For general questions and privacy 
issues please contact: Mary Ellen Callahan (703-235-0780), Chief 
Privacy Officer, Privacy Office, U.S. Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

Background

    The Department of Homeland Security (DHS) published a notice of 
proposed rulemaking in the Federal Register, 74 FR 2906, January 16, 
2009, 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 the 
DHS/ALL--024 Facility and Perimeter Access Control and Visitor 
Management system. The DHS/ALL--024 Facility and Perimeter Access 
Control and Visitor Management system of records notice was published 
concurrently in the Federal Register, 74 FR 3081, January 16, 2009, and 
comments were invited on both the notice of proposed rulemaking and 
system of records notice. No comments were received.

Public Comments

    DHS received no comments on the notice of proposed rulemaking or 
the system of records notice. DHS will implement the rulemaking as 
proposed.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.


0
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.


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2. Add at the end of Appendix C to Part 5, the following new paragraph 
``19'':
* * * * *

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

* * * * *
    19. The DHS/ALL--024 Facility and Perimeter Access Control and 
Visitor Management system of records consists of electronic and 
paper records and will be used by DHS and its components. The DHS/
ALL--024 Facility and Perimeter Access Control and Visitor 
Management system 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; and 
national security and intelligence activities. The DHS/ALL--024 
Facility and Perimeter Access Control and Visitor Management system 
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 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), (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)(5). 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 the 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

[[Page 42579]]

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 the 
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 
impossible administrative burden by requiring investigations to be 
continuously 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: August 12, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-20155 Filed 8-21-09; 8:45 am]
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