[Federal Register Volume 74, Number 189 (Thursday, October 1, 2009)]
[Rules and Regulations]
[Pages 50904-50906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23524]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0069]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL--023 Personnel Security 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 of Homeland 
Security system of records entitled the ``Department of Homeland 
Security/ALL--023 Personnel Security Management System of Records'' 
from certain provisions of the Privacy Act. Specifically, the 
Department exempts portions of the Department of Homeland Security/
ALL--023 Personnel Security 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 October 1, 2009.

[[Page 50905]]


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 2904, 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--023 Personnel Security Management system. The DHS/ALL--023 
Personnel Security Management system of records notice was published 
concurrently in the Federal Register, 74 FR 3084, January 16, 2009, and 
comments were invited on both the notice of proposed rulemaking and 
system of records notice. No comments were received on the notice of 
proposed rulemaking or system of records notice published on January 
16, 2009.
    Prior to the January 16, 2009 publishing, DHS published a notice of 
proposed rulemaking and system of records notice for the DHS-OS-001 
Office of Security File System on September 12, 2006. The notice of 
proposed rulemaking published in the Federal Register, 71 FR 53609, 
September 12, 2006, proposed 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 notice published concurrently in the Federal 
Register, 71 FR 53700, September 12, 2006, and comments were invited on 
both the notice of proposed rulemaking and system of records notice. 
The notice of proposed rulemaking received four public comments and 
system of records notice received one public comment but were never 
addressed after the publication period expired.
    Because the DHS-OS-001 Office of Security File System notice of 
proposed rulemaking and system of records notice, published on 
September 12, 2006, have been superseded by the DHS/ALL--023 Personnel 
Security Management notice of proposed rulemaking and system of records 
notice published on January 16, 2009, the Department will respond to 
previous public comments in this final rule as if they were submitted 
under the new docket number.

Public Comments

    DHS received no public comments on the DHS/ALL--023 Personnel 
Security Management system notice of proposed rulemaking and system of 
records notice published on January 16, 2009. As described above, DHS 
received four public comments on DHS-OS-001 Office of Security File 
System notice of proposed rulemaking and one public comment on the 
system of records notice published on September 12, 2006.

Notice of Proposed Rulemaking 71 FR 53609, September 12, 2006

    Public comments noted that the functions of law enforcement and 
personnel security should be two separate systems of records, not 
commingled systems. In January 2009, the Department published two new 
system of records notices: (1) DHS/ALL--023 Personnel Security 
Management system, 74 FR 3084, January 16, 2009; and (2) DHS/ALL--025 
Law Enforcement Authority in Support of the Protection of Property 
Owned or Occupied by the Department of Homeland Security system, 74 FR 
3088, January 16, 2009. Publishing these two systems of records notices 
provides transparency to the public of the Department's security 
authorities and exemptions for personnel security and law enforcement 
activities and addresses the concerns expressed in the public comments.
    Final exemptions for the DHS/ALL--023 Personnel Security Management 
system of records are published below under PART 5--DISCLOSURE OF 
RECORDS AND INFORMATION. The Department's authorities for use of these 
exemptions are provided therein. The Department, through the Freedom of 
Information Act and Privacy Act, wishes to remain transparent in 
providing as much information as possible to the public when formally 
requesting information.
    Having addressed the issues published in response to this notice of 
proposed rulemaking and after receiving no public comment on the DHS 
notice of proposed rulemaking published in the Federal Register, 74 FR 
2904, January 16, 2009, DHS will implement the rulemaking as proposed.

System of Records Notice 71 FR 53700, September 12, 2006

    Public comments noted that the functions of law enforcement and 
personnel security should be two separate systems of records, not 
commingled systems. In January 2008, the Department published two new 
system of records notices: (1) DHS/ALL--023 Personnel Security 
Management system, 74 FR 3084, January 16, 2009; and (2) DHS/ALL--025 
Law Enforcement Authority in Support of the Protection of Property 
Owned or Occupied by the Department of Homeland Security system, 74 FR 
3088, January 16, 2008. Each of the above cited systems of records 
contains a law enforcement and/or a counterintelligence component. Both 
personnel and physical security systems of records necessarily require 
law enforcement or counterintelligence information in order to protect 
the Department from infiltration or compromise. As complementary 
information collections, both systems ensure the security and integrity 
of DHS personnel and facilities. Considering those purposes, it is 
appropriate for the systems of records to take exemptions available 
under (k)(1), (k)(2), (k)(3) and/or (k)(5) as all of the functions 
covered by these exemptions are directly relevant to the investigations 
of threats to the Department's personnel and facilities. Publishing 
these two systems of records notices provides transparency to the 
public of the Department's security authorities and exemptions for 
personnel security and law enforcement activities.
    Public comments also noted concern over Routine Use H and Routine 
Use I of the system of records notice. Routine Use H permits release of 
information to Congress. It may be necessary, from time to time, for 
the Department to release information to a Member of Congress working 
on behalf of a constituent. While such a disclosure might be acceptable 
under consent of the constituent, Office of Management and Budget 
guidance recommends additional notice through the published routine use 
be given. As such, DHS continues to keep this routine use in the SORN.
    Routine Use I releases information to contractors, which includes 
students. One commenter stated that it was inappropriate for DHS to 
share information with any contractor or student working officially on 
behalf of the Department. Contractors, including students, are subject 
to the same screening as full time employees. The Department relies on 
contractors and students in the course of its day to day activities and 
it may become necessary for information to be released to them for 
official government use just as it would be for a DHS employee. The 
decision to allow students access to DHS facilities and a certain 
information

[[Page 50906]]

level rests solely with the DHS Office of Security and component 
security offices. Employees, contractors, students, detailees, 
grantees, experts and any other person working at a DHS facility and 
accessing DHS information are required to undergo the same background 
investigation as it pertains to their required classification level. 
Those decisions are left to the discretion of the Office of Security 
and the component or office to which the employee, contractor, student, 
detailee, grantee, expert, or other person is assigned. As such, DHS 
shall maintain this routine use.
    Having addressed the issues published in response to this system of 
records notice and after receiving no public comment on the DHS system 
of records notice published in the Federal Register, 74 FR 3084, 
January 16, 2009, 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.



0
2. In Appendix C to Part 5, add a new paragraph 40 to read as follows:

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

* * * * *
    40. The DHS/ALL--023 Personnel Security Management system of 
records consists of electronic and paper records and will be used by 
DHS and its components. The DHS/ALL--023 Personnel Security 
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 thereunder; 
national security and intelligence activities; and protection of the 
President of the United States or other individuals pursuant to 
Section 3056 and 3056A of Title 18. The DHS/ALL--023 Personnel 
Security 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), (k)(3), 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 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), (H), and (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: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-23524 Filed 9-30-09; 8:45 am]
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