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.

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new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

44451 

Vol. 76, No. 143 

Tuesday, July 26, 2011 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2011–0051] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security/ALL–029 Civil Rights and Civil 

Liberties Records System of Records 

AGENCY: Privacy Office, DHS. 

AGENCY: 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–029 Civil Rights and Civil 

Liberties Records System of Records’’ 

from certain provisions of the Privacy 

Act. Specifically, the Department 

exempts portions of the ‘‘Department of 

Homeland Security/ALL–029 Civil 

Rights and Civil Liberties Records 

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 July 26, 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, 75 FR 39184, July 8, 

2010, 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–029 Civil 

Rights and Civil Liberties Records 

System of Records. The DHS/ALL–029 

Civil Rights and Civil Liberties Records 

system of records notice (SORN) was 

published concurrently in the Federal 

Register, 75 FR 39266, July 8, 2010, and 

comments were invited on both the 

NPRM and SORN. 

Public Comments 

DHS received one comment on the 

NPRM and one comment on the SORN. 

NPRM 

Public Comment: The commenter 

asked that DHS ‘‘consider then the 

longevity of your agency’s [DHS] 

decision to classify civil rights records; 

pent up negativity tends to torrentially 

destroy future objectives, and 

undermines the legitimacy of the work 

done to bring justice to those who 

deserve its retribution.’’ 

DHS Response: DHS is not seeking, 

through the proposed rule, to classify 

civil rights records. Rather, DHS has 

exempted certain records within this 

system of records from release under the 

Privacy Act because they are classified 

records, investigatory records compiled 

for law enforcement purposes, records 

related to the protection of the President 

and others, and investigatory records 

used for employee and contractor 

suitability determinations. 

SORN 

Public Comment: The commenter 

noted that ‘‘many persons affected by 

these programs are afraid to complain 

about misconduct because they fear that 

the personally identifying information 

that they provide will not be kept 

confidential or that they will be 

retaliated against by the agencies about 

which they complain. The SORN does 

nothing to alleviate these fears. In fact, 

it makes explicit that identifying 

information will be shared among 

government agencies, including state 

and local agencies. This was a missed 

opportunity to ensure that complaints 

may be made without fear of reprisal. It 

does not provide any meaningful 

opportunity for complainants to learn 

the results of their complaints.’’ 

DHS Response: The purpose of a 

Privacy Act SORN is to provide 

reasonable notice to the public on 

information that the Department is 

collecting, maintaining, and retrieving 

by personal identifier related directly to 

an individual in an agency system. The 

purpose is also to state the purpose, 

information on records and individuals 

covered, information sharing with other 

entities, records retention, and redress 

on information within that system. It is 

not intended to be a mechanism for 

complainants to learn the results of their 

complaints. There is a separate process 

for that. Information received within 

these systems of records must be 

protected by government agencies as 

outlined in statutes, executive orders, 

regulations, and DHS policy; in this 

case, records related to civil rights and 

civil liberties. There are limits to 

sharing information in a Privacy Act 

system of records, this includes between 

Federal, state, and local agencies 

including law enforcement. Sharing 

must be done in accordance with the 

routine uses in the Privacy Act system 

of records as published in the Federal 

Register. Routine uses apply to 

information sharing external to DHS. 

The term ‘‘routine use’’ is defined, with 

respect to the disclosure of a record, as 

the use of such record for a purpose 

which is compatible with the purpose 

for which the record was collected. This 

ensures the public receives adequate 

notice of the Department’s planned uses 

of the information in the system of 

records. 

DHS will implement this rulemaking 

as proposed. 

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. In Appendix C to Part 5, revise 

paragraph 2 to read as follows: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

2. The DHS/ALL–029 Civil Rights and 

Civil Liberties Records System of Records 

consists of electronic and paper records and 


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44452 Federal Register / Vol. 76, No. 143 / Tuesday, July 26, 2011 / Rules and Regulations 

will be used by DHS and its components. The 

DHS/ALL–029 Civil Rights and Civil 

Liberties Records 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 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–029 Civil 

Rights and Civil Liberties Records 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 has exempted 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), (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 

individual who is 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 

individual who is 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: June 9, 2011. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2011–18832 Filed 7–25–11; 8:45 am] 

BILLING CODE 9110–9B–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2011–0054] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security National Protection and 

Programs Directorate—001 National 

Infrastructure Coordinating Center 

Records 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/National Protection and 

Programs Directorate—001 National 

Infrastructure Coordinating Center 

Records System of Records’’ from 

certain provisions of the Privacy Act. 

Specifically, the Department exempts 

portions of the ‘‘Department of 

Homeland Security/National Protection 

and Programs Directorate—001 National 

Infrastructure Coordinating Center 

Records System of Records’’ from one or 

more provisions of the Privacy Act 

because of criminal, civil, and 

administrative enforcement 

requirements. The Department will not 

claim Privacy Act exemption (k)(3) as 

originally published in the Notice of 

Proposed Rulemaking. 

DATES: Effective Date: This final rule is 

effective July 26, 2011. 

FOR FURTHER INFORMATION CONTACT: For 

general questions please contact: Emily 

Andrew (703–235–2182), Senior Privacy 

Officer, National Protection and 

Programs Directorate, Department of 

Homeland Security, Washington, DC 

20525. 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: 

Background 

The Department of Homeland 

Security (DHS), National Protection and 

Programs Directorate (NPPD), published 

a notice of proposed rulemaking 

(NPRM) in the Federal Register, 75 FR 

69603, on November 15, 2010, 

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/NPPD—001 

National Infrastructure Coordinating 

Center (NICC) Records System of 

Records. The DHS/NPPD—001 NICC 

Records system of records notice 

(SORN) was published concurrently in 

the Federal Register, 75 FR 69693, 

November 15, 2010, and comments were 

invited on both the NPRM and SORN. 

The Department will not claim Privacy 

Act exemption (k)(3) as originally 

published in the NPRM. 

Public Comments 

DHS received one set of public 

comments from the Electronic Privacy 

Information Center (EPIC). Comments 

submitted for the NPRM and SORN 

were identical. Each comment is 

outlined below followed by the 

Department’s response. 

1. By exempting this system of 

records from certain provisions of the 

Privacy Act, DHS is contravening the 

purpose of the Act. 

Comment: EPIC urged DHS to limit its 

exemptions from the Privacy Act’s 

provisions, including 5 U.S.C. 

552a(c)(3), which entitles individuals to 

an accounting of disclosures of their 

records, stating that individuals should 

be able to know, after an investigation 

is completed or made public, the 

information stored about them in the 

system. Further, EPIC wrote that 

because information from informants 

may be used to initiate investigations, 


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