Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 2209 

(b) The notice must inform the 

respondent that he or she may be 

represented by a representative of the 

respondent’s choice and that if the 

respondent wishes to have such a 

representative, the respondent must 

designate the representative in writing. 

(c) The agency must serve the notice 

of proposed action upon the respondent 

by mail or hand delivery no less than 30 

days prior to the effective date of the 

proposed action to the respondent’s last 

known residence or duty station. 

(d) If the respondent is employed in 

a position covered by this part on the 

date the notice is served, the respondent 

is entitled to be retained in a pay status 

during the notice period. 

§ 731.403 Answer. 

A respondent may answer the charges 

in writing and furnish documentation 

and/or affidavits in support of the 

answer. To be timely, a written answer 

must be submitted no more than 30 days 

after the date of the notice of proposed 

action. 

§ 731.404 Decision. 

The decision regarding the final 

action must be in writing, be dated, and 

inform the respondent of the reasons for 

the decision and that an unfavorable 

decision may be appealed in accordance 

with subpart E of this part. If the 

decision requires removal, the 

employing agency must remove the 

appointee from the rolls within 5 work 

days of the agency’s decision. 

Subpart E—Appeal to the Merit 

Systems Protection Board 

§ 731.501 Appeal to the Merit Systems 

Protection Board. 

(a) Appeal to the Merit Systems 

Protection Board. When OPM or an 

agency acting under delegated authority 

under this part takes a suitability action 

against a person, that person may appeal 

the action to the Merit Systems 

Protection Board (hereinafter ‘‘Board’’). 

If the Board finds that at least one of the 

charges brought by OPM or an agency 

against the person is supported by a 

preponderance of the evidence, 

regardless of whether all specifications 

are sustained, it must affirm the 

suitability determination and the 

suitability action. 

(b) Appeal procedures. The 

procedures for filing an appeal with the 

Board are found at part 1201 of this title. 

Subpart F—Savings Provision 

§ 731.601 Savings provision. 

No provision of the regulations in this 

part is to be applied in such a way as 

to affect any administrative proceeding 

pending on [DATE OF THE EFFECTIVE 

DATE OF THE FINAL RULE]. An 

administrative proceeding is deemed to 

be pending from the date of the agency 

or OPM ‘‘notice of proposed action’’

described in §§ 731.302 and 731.402. 

[FR Doc. E7–592 Filed 1–17–07; 8:45 am] 

BILLING CODE 6326–39–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket Number DHS–2007–0003] 

Privacy Act of 1974: Implementation of 

Exemptions; Redress and Response 

Records System 

AGENCY: Privacy Office, Office of the 

Secretary, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security is amending its regulations to 

exempt portions of a new system of 

records from certain provisions of the 

Privacy Act. Specifically, the 

Department proposes to exempt 

portions of the Redress and Response 

Records System 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 February 20, 2007. 

ADDRESSES: You may submit comments, 

identified by Docket Number DHS–

2007–0003 by one of the following 

methods: 

• Federal e-Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Facsimile: 866–466–5370. 

• Mail: Hugo Teufel III, Chief Privacy 

Officer, Privacy Office, Department of 

Homeland Security, Washington, DC 

20528. 

FOR FURTHER INFORMATION CONTACT: 

Hugo Teufel III, Chief Privacy Officer, 

Privacy Office, Department of Homeland 

Security, Washington, DC 20528; 

telephone 571–227–3813; facsimile: 

866–466–5370. 

SUPPLEMENTARY INFORMATION:

Background 

The Department of Homeland 

Security (DHS), elsewhere in this 

edition of the Federal Register, 

published a Privacy Act system of 

records notice describing records in the 

DHS Redress and Response Records 

System. This system maintains records 

for the DHS Traveler Redress Inquiry 

Program (TRIP), which is the traveler 

redress mechanism being established by 

DHS in connection with the RiceChertoff Initiative, as well as in 

accordance with other policy and law. 

DHS TRIP will facilitate the public’s 

ability to provide appropriate 

information to DHS for redress requests 

when they believe they have been 

denied entry, refused boarding for 

transportation, or identified for 

additional screening by DHS 

components or programs at their 

operational locations. Such locations 

include airports, seaports, train stations 

and land borders. DHS TRIP will create 

a cohesive process to address these 

redress requests across DHS. 

DHS TRIP will serve as a mechanism 

to share redress-related information and 

facilitate communication of redress 

results across DHS components. It will 

also facilitate efficient adjudication of 

redress requests. Once the information 

intake is complete, DHS TRIP will 

facilitate the transfer of or access to this 

information for the DHS components or 

other agencies redress process, which 

will address the redress request. 

This system contains records 

pertaining to various categories of 

individuals, including: individuals 

seeking redress or individuals on whose 

behalf redress is sought from DHS; 

individuals applying for redress on 

behalf of another individual; and DHS 

employees and contractors assigned to 

interact with the redress process. 

No exemption shall be asserted with 

respect to information submitted by and 

collected from individuals or their 

representatives in the course of any 

redress process associated with this 

System of Records. 

This system, however, may contain 

records or information recompiled from 

or created from information contained 

in other systems of records, which are 

exempt from certain provisions of the 

Privacy Act. For these records or 

information only, in accordance with 5 

U.S.C. 552a (j)(2), (k)(1), (k)(2), and 

(k)(5), DHS will also claim the original 

exemptions for these records or 

information from subsections (c)(3) and 

(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), 

(4)(G) through (I), (5), and (8); (f), and (g) 

of the Privacy Act of 1974, as amended, 

as necessary and appropriate to protect 

such information. Moreover, DHS will 

add these exemptions to Appendix C to 

6 CFR Part 5, DHS Systems of Records 

Exempt from the Privacy Act. Such 

exempt records or information may be 

law enforcement or national security 

investigation records, law enforcement 

activity and encounter records, or 

terrorist screening records. 


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2210 Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / Proposed Rules 

DHS needs these exemptions in order 

to protect information relating to law 

enforcement investigations from 

disclosure to subjects of investigations 

and others who could interfere with 

investigatory and law enforcement 

activities. Specifically, the exemptions 

are required to: preclude subjects of 

investigations from frustrating the 

investigative process; avoid disclosure 

of investigative techniques; protect the 

identities and physical safety of 

confidential informants and of law 

enforcement personnel; ensure DHS’

and other federal agencies’ ability to 

obtain information from third parties 

and other sources; protect the privacy of 

third parties; and safeguard sensitive 

information. 

In addition, because such 

investigations may arise out of DHS 

programs and activities, information in 

this system of records may pertain to 

national security and related law 

enforcement matters. In such cases, 

allowing access to such information 

could alert subjects of such 

investigations into actual or potential 

criminal, civil, or regulatory violations, 

and could reveal, in an untimely 

manner, DHS’ and other agencies’

investigative interests in law 

enforcement efforts to preserve national 

security. 

Additionally, DHS needs these 

exemptions in order to protect 

information relating to background 

investigations from disclosure to 

subjects of investigations and others 

who could interfere with investigatory 

activities. Specifically, the exemptions 

are required to: withhold information to 

the extent it identifies witnesses 

promised confidentiality as a condition 

of providing information during the 

course of the background investigation; 

prevent subjects of investigations from 

frustrating the investigative process; 

avoid disclosure of investigative 

techniques; protect the privacy of third 

parties; ensure DHS’ and other federal 

agencies’ ability to obtain information 

from third parties and other sources; 

and safeguard sensitive information. 

The exemptions proposed here are 

standard law enforcement and national 

security exemptions exercised by a large 

number of federal law enforcement and 

intelligence agencies. 

Nonetheless, DHS will examine each 

separate request on a case-by-case basis, 

and, after conferring with the 

appropriate component or agency, may 

waive applicable exemptions in 

appropriate circumstances and where it 

would not appear to interfere with or 

adversely affect the law enforcement or 

national security purposes of the 

systems from which the information is 

recompiled or in which it is contained. 

Again, DHS shall not assert any 

exemption with respect to information 

submitted by and collected from the 

individual or the individual’s 

representative in the course of any 

redress process associated with the 

underlying System of Records. 

Regulatory Requirements 

A. Regulatory Impact Analyses 

Changes to Federal regulations must 

undergo several analyses. In conducting 

these analyses, DHS has determined: 

1. Executive Order 12866 Assessment 

This rule is not a significant 

regulatory action under Executive Order 

12866, ‘‘Regulatory Planning and 

Review’’ (as amended). Accordingly, 

this rule has not been reviewed by the 

Office of Management and Budget 

(OMB). Nevertheless, DHS has reviewed 

this rulemaking, and concluded that 

there will not be any significant 

economic impact. 

2. Regulatory Flexibility Act Assessment 

Pursuant to section 605 of the 

Regulatory Flexibility Act (RFA), 5 

U.S.C. 605(b), as amended by the Small 

Business Regulatory Enforcement and 

Fairness Act of 1996 (SBREFA), DHS 

certifies that this rule will not have a 

significant impact on a substantial 

number of small entities. The rule 

would impose no duties or obligations 

on small entities. Further, the 

exemptions to the Privacy Act apply to 

individuals, and individuals are not 

covered entities under the RFA. 

3. International Trade Impact 

Assessment 

This rulemaking will not constitute a 

barrier to international trade. The 

exemptions relate to criminal 

investigations and agency 

documentation and, therefore, do not 

create any new costs or barriers to trade. 

4. Unfunded Mandates Assessment 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), (Pub. L. 

104–4, 109 Stat. 48), requires Federal 

agencies to assess the effects of certain 

regulatory actions on State, local, and 

tribal governments, and the private 

sector. This rulemaking will not impose 

an unfunded mandate on State, local, or 

tribal governments, or on the private 

sector. 

B. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(PRA) (44 U.S.C. 3501 et seq.) requires 

that DHS consider the impact of 

paperwork and other information 

collection burdens imposed on the 

public and, under the provisions of PRA 

section 3507(d), obtain approval from 

the Office of Management and Budget 

(OMB) for each collection of 

information it conducts, sponsors, or 

requires through regulations. DHS has 

determined that there are no current or 

new information collection 

requirements associated with this rule. 

C. Executive Order 13132, Federalism 

This action will not have a substantial 

direct effect on the States, on the 

relationship between the national 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, and therefore will 

not have federalism implications. 

D. Environmental Analysis 

DHS has reviewed this action for 

purposes of the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321–4347) and has determined that 

this action will not have a significant 

effect on the human environment. 

E. Energy Impact 

The energy impact of this action has 

been assessed in accordance with the 

Energy Policy and Conservation Act 

(EPCA) Public Law 94–163, as amended 

(42 U.S.C. 6362). This rulemaking is not 

a major regulatory action under the 

provisions of the EPCA. 

List of Subjects in 6 CFR Part 5 

Sensitive information, Privacy, 

Freedom of information. 

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: Pub. L. 107–296, 116 Stat. 2135, 

6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A 

also issued under 5 U.S.C. 552. 

2. At the end of Appendix C to Part 

5, add the following new paragraph: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

3. DHS–ALL–005, Redress and Response 

Records System. A portion of the following 

system of records is exempt from 5 U.S.C. 

552a(c)(3) and (4); (d)(1), (2), (3), and (4); 

(e)(1), (2), (3), (4)(G) through (I), (5), and (8); 

(f), and (g); however, these exemptions apply 

only to the extent that information in this 

system records is recompiled or is created 

from information contained in other systems 

of records subject to such exemptions 


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pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), 

and (k)(5). Further, no exemption shall be 

asserted with respect to information 

submitted by and collected from the 

individual or the individual’s representative 

in the course of any redress process 

associated with this system of records. After 

conferring with the appropriate component 

or agency, DHS may waive applicable 

exemptions in appropriate circumstances and 

where it would not appear to interfere with 

or adversely affect the law enforcement or 

national security purposes of the systems 

from which the information is recompiled or 

in which it is contained. Exemptions from 

the above particular subsections are justified, 

on a case-by-case basis to be determined at 

the time a request is made, when information 

in this system records is recompiled or is 

created from information contained in other 

systems of records subject to exemptions for 

the following reasons: 

(a) From subsection (c)(3) because making 

available to a record subject the accounting 

of disclosures from records concerning him 

or her would specifically reveal any 

investigative interest in the individual. 

Revealing this information could reasonably 

be expected to compromise ongoing efforts to 

investigate a known or suspected terrorist by 

notifying the record subject that he or she is 

under investigation. This information could 

also permit the record subject to take 

measures to impede the investigation, e.g., 

destroy evidence, intimidate potential 

witnesses, or flee the area to avoid or impede 

the investigation. 

(b) From subsection (c)(4) because portions 

of this system are exempt from the access and 

amendment provisions of subsection (d). 

(c) From subsections (d)(1), (2), (3), and (4) 

because these provisions concern individual 

access to and amendment of certain records 

contained in this system, including law 

enforcement counterterrorism, investigatory 

and intelligence records. Compliance with 

these provisions could alert the subject of an 

investigation of the fact and nature of the 

investigation, and/or the investigative 

interest of intelligence or law enforcement 

agencies; compromise sensitive information 

related to national security; interfere with the 

overall law enforcement process by leading 

to the destruction of evidence, improper 

influencing of witnesses, fabrication of 

testimony, and/or flight of the subject; could 

identify a confidential source or disclose 

information which would constitute an 

unwarranted invasion of another’s personal 

privacy; reveal a sensitive investigative or 

intelligence technique; or constitute a 

potential danger to the health or safety of law 

enforcement personnel, confidential 

informants, and witnesses. Amendment of 

these records would interfere with ongoing 

counterterrorism, law enforcement, or 

intelligence investigations and analysis 

activities and impose an impossible 

administrative burden by requiring 

investigations, analyses, and reports to be 

continuously reinvestigated and revised. 

(d) From subsection (e)(1) because it is not 

always possible for DHS or other agencies to 

know in advance what information is 

relevant and necessary for it to complete an 

identity comparison between the individual 

seeking redress and a known or suspected 

terrorist. Also, because DHS and other 

agencies may not always know what 

information about an encounter with a 

known or suspected terrorist will be relevant 

to law enforcement for the purpose of 

conducting an operational response. 

(e) From subsection (e)(2) because 

application of this provision could present a 

serious impediment to counterterrorism, law 

enforcement, or intelligence efforts in that it 

would put the subject of an investigation, 

study or analysis on notice of that fact, 

thereby permitting the subject to engage in 

conduct designed to frustrate or impede that 

activity. The nature of counterterrorism, law 

enforcement, or intelligence investigations is 

such that vital information about an 

individual frequently can be obtained only 

from other persons who are familiar with 

such individual and his/her activities. In 

such investigations it is not feasible to rely 

upon information furnished by the 

individual concerning his own activities. 

(f) From subsection (e)(3), to the extent that 

this subsection is interpreted to require DHS 

to provide notice to an individual if DHS or 

another agency receives or collects 

information about that individual during an 

investigation or from a third party. Should 

the subsection be so interpreted, exemption 

from this provision is necessary to avoid 

impeding counterterrorism, law enforcement, 

or intelligence efforts by putting the subject 

of an investigation, study or analysis on 

notice of that fact, thereby permitting the 

subject to engage in conduct intended to 

frustrate or impede that activity. 

(g) From subsections (e)(4)(G), (H) and (I) 

(Agency Requirements) because portions of 

this system are exempt from the access and 

amendment provisions of subsection (d). 

(h) From subsection (e)(5) because many of 

the records in this system coming from other 

system of records are derived from other 

domestic and foreign agency record systems 

and therefore it is not possible for DHS to 

vouch for their compliance with this 

provision, however, the DHS has 

implemented internal quality assurance 

procedures to ensure that data used in the 

redress process is as thorough, accurate, and 

current as possible. In addition, in the 

collection of information for law 

enforcement, counterterrorism, and 

intelligence purposes, it is impossible to 

determine in advance what information is 

accurate, relevant, timely, and complete. 

With the passage of time, seemingly 

irrelevant or untimely information may 

acquire new significance as further 

investigation brings new details to light. The 

restrictions imposed by (e)(5) would limit the 

ability of those agencies’ trained investigators 

and intelligence analysts to exercise their 

judgment in conducting investigations and 

impede the development of intelligence 

necessary for effective law enforcement and 

counterterrorism efforts. The DHS has, 

however, implemented internal quality 

assurance procedures to ensure that the data 

used in the redress process is as thorough, 

accurate, and current as possible. 

(i) From subsection (e)(8) because to 

require individual notice of disclosure of 

information due to compulsory legal process 

would pose an impossible administrative 

burden on DHS and other agencies and could 

alert the subjects of counterterrorism, law 

enforcement, or intelligence investigations to 

the fact of those investigations when not 

previously known. 

(j) From subsection (f) (Agency Rules) 

because portions of this system are exempt 

from the access and amendment provisions 

of subsection (d). 

(k) From subsection (g) to the extent that 

the system is exempt from other specific 

subsections of the Privacy Act. 

Dated: January 12, 2007. 

Hugo Teufel III, 

Chief Privacy Officer. 

[FR Doc. 07–191 Filed 1–12–07; 3:38 pm] 

BILLING CODE 4410–10–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1260 

[No. LS–07–03] 

Cattlemen’s Beef Promotion and 

Research Program; Section 610 

Review 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Notice of review and request for 

comments. 

SUMMARY: This action announces the 

Agricultural Marketing Service’s (AMS) 

review of the Cattlemen’s Beef 

Promotion and Research Program, 

which is conducted under the Beef 

Promotion and Research Order (Order), 

under the criteria contained in section 

610 of the Regulatory Flexibility Act 

(RFA). 

DATES: Written comments on this notice 

must be received by March 19, 2007. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this notice of review. 

Comments must be sent to Kenneth R. 

Payne, Chief, Marketing Programs, 

Livestock and Seed Program, AMS, 

USDA, Room 2628–S, STOP 0251, 1400 

Independence Avenue, SW., 

Washington, DC 20250–0251; Fax: (202) 

720–1125; via e-mail at 

beefcomments@usda.gov or online at 

www.regulations.gov. All comments 

should reference the docket number, the 

date, and the page number of this issue 

of the Federal Register. Comments will 

be available for public inspection via 

the Internet at http:// 

www.ams.usda.gov/lsg/mpb/rp-beef.htm 

or during regular business hours. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth R. Payne, Chief, Marketing 

Programs Branch, Livestock and Seed 


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