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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Federal Register / Vol. 76, No. 143 / Tuesday, July 26, 2011 / Rules and Regulations 44453 

individuals may find themselves 

investigated due to malicious 

information. This could be alleviated by 

providing access to records of 

completed investigations with 

appropriate redactions. EPIC also stated 

that DHS is retaining the right to 

disseminate using the overly broad 

standard of ‘‘potential risk of harm to an 

individual,’’ while limiting access to 

that same information that may be 

further disseminated. 

Response: DHS recognizes the need to 

allow individuals the rights to and an 

account of disclosures of their records. 

The determination to exempt records 

from 5 U.S.C. 552a(d) is justified on a 

case-by-case basis, to be determined at 

the time a request is made. In those 

instances where an individual’s records 

are determined to be exempt from this 

provision, the individual may seek 

access to such records under 5 U.S.C. 

552. 

Comment: EPIC stated that DHS is 

exempting this system from 5 U.S.C. 

552a(d) in order to prevent individuals 

from avoiding detection or tampering 

with evidence, which DHS argues 

would impose an unreasonable 

administrative burden by requiring 

investigations to be continually 

reinvestigated. EPIC wrote that this 

restriction would not only contravene 

the Privacy Act, but may also hinder 

some government investigations, as was 

illustrated in a 2007 Department of 

Justice Inspector General review of the 

Transportation Security 

Administration’s (TSA) Terrorist 

Screening Center, which indicates that 

errors in the watch list obstruct the 

capture of actual terrorists and affect 

innocent individuals. EPIC specifically 

referenced fusion center data, writing 

that by exempting this data, DHS would 

prevent individuals from requesting 

information that DHS may be keeping 

on them, limiting their opportunity to 

seek redress. 

Response: DHS recognizes the need to 

allow individuals the right to seek 

redress. The determination to exempt 

records from 5 U.S.C. 552a(d) is justified 

on a case-by-case basis, to be 

determined at the time a request is 

made. In those instances where an 

individual’s records are determined to 

be exempt from this provision, the 

individual may seek access to such 

records under 5 U.S.C. 552. With 

respect to EPIC’s specific comment 

regarding fusion center data that 

information falls outside the scope of 

this NPRM and SORN. 

Comment: EPIC urged DHS to remove 

this system’s exemption from 5 U.S.C. 

552a(e)(1), requiring that records 

maintained in this system be relevant 

and necessary to accomplish the 

agency’s purpose, as this standard is a 

fundamental and necessary part of the 

Privacy Act protections and staves off 

mission creep. EPIC cited TSA’s secondgeneration Computer Assisted Passenger 

Prescreening System (CAPPS II) 

program as an example in which 

mission creep led to additional 

opportunity for errors. Further, EPIC 

wrote that this blanket exemption 

would allow records to contain 

information unrelated to any purpose of 

DHS. 

Response: In the interest of effective 

law enforcement, it is appropriate to 

retain all information that may aid in 

establishing patterns of unlawful 

activity. The information collected in 

this system that may be helpful in a 

particular investigation would likely be 

relevant and necessary to the 

investigation at some stage, and thus be 

in compliance with the standards of the 

Privacy Act. 

Comment: EPIC expressed concerns 

with the operation of a proposed fusion 

center without being subject to the 

provisions of 5 U.S.C. 552a(e)(4)(G)–(I) 

and (f), noting that this would prevent 

individuals from knowing whether 

records in this system pertain to them. 

EPIC wrote that DHS could promulgate 

rules requiring notification only after an 

active investigation has been concluded 

or with sensitive information redacted 

prior to release. 

Response: This comment relates to 

fusion center activities, which are 

outside the scope of this NPRM and 

SORN. 

2. The NICC Proposal Requires a 

Narrow Mission with Clear Oversight 

Mechanisms and Limiting Guidelines. 

Comment: EPIC wrote that the NICC 

mission statement is overly broad and 

justifies the collection of personal 

information for virtually any reason or 

for no reason at all. Instead, EPIC would 

advocate for meaningful guidance on 

the reasons and purpose of the creation 

of the system of records, arguing that the 

range of routine uses proposed by DHS 

are so broad as to make meaningless any 

intent to restrict data, furthering the 

possibility of mission creep. 

Response: Consistent with DHS’s 

information sharing mission, 

information contained in the system of 

records may be shared with other DHS 

components, as well as appropriate 

Federal, state, local, Tribal territorial, 

foreign or international government 

agencies. The 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, intelligencerelated activities, or to the functions 

consistent with the routine uses. DHS 

has provided notice of the purpose of 

the creation of this system of records in 

the form of NPRM, the SORN, and the 

Privacy Impact Assessment (PIA). 

3. The NICC Proposal Requires a New 

PIA. 

Comment: EPIC called for a new PIA 

to be drafted, which would cover 

fusions centers encompassing Federal 

projects, as opposed to covering only 

state, local, and regional fusion center 

projects. 

Response: This comment relates to 

fusion center activities, which are 

outside the scope of this NPRM and 

SORN. 

After careful review and 

consideration of these public comments 

alongside the published PIA and SORN, 

the Department will implement the 

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. Add at the end of Appendix C to 

Part 5, the following new paragraph 

‘‘59’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

59. The DHS/NPPD–001 NICC Records 

System of Records consists of electronic and 

paper records and will be used by DHS and 

its components. The DHS/NPPD–001 NICC 

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 there under; 

national security and intelligence activities 

The DHS/NPPD–001 NICC 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. 


wreier-aviles on DSKDVH8Z91PROD with RULES
44454 Federal Register / Vol. 76, No. 143 / Tuesday, July 26, 2011 / Rules and Regulations 

1To view the interim rule and a correction that 

restored several missing hyphens in the rule text, 

go to http://www.regulations.gov/fdmspublic/ 

component/main?main=DocketDetail&d=APHIS2009-0079. 

552a(k)(1) and (k)(2). Exemptions from these 

particular subsections are justified, on a caseby-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: June 28, 2011. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2011–18828 Filed 7–25–11; 8:45 am] 

BILLING CODE 9110–9P–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2009–0079] 

Karnal Bunt; Regulated Areas in 

Arizona, California, and Texas 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are adopting as a final 

rule, with one change, an interim rule 

that amended the Karnal bunt 

regulations to make changes to the list 

of areas or fields regulated because of 

Karnal bunt, a fungal disease of wheat. 

Specifically, the interim rule added 

portions of the Buckeye/Pretoria area of 

Maricopa County, AZ, to the list of 

regulated areas and removed 

Throckmorton and Young Counties, TX, 

portions of Riverside County, CA, and 

certain areas in La Paz, Maricopa, and 

Pinal Counties, AZ, from the list of 

regulated areas based on our 

determination that those fields or areas 

meet our criteria for release from 

regulation. The interim rule was 

necessary to prevent the spread of 

Karnal bunt to noninfected areas of the 

United States and to relieve restrictions 

on certain areas that are no longer 

necessary. In the interim rule, we 

inadvertently removed two areas in 

Maricopa County, AZ, from the list of 

regulated areas. We are returning those 

areas to the list in this final rule. 

DATES: Effective Date: July 26, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lynn Evans-Goldner, Karnal Bunt 

Program Manager, Plant Pathogen and 

Weed Programs, EDP, PPQ, APHIS, 4700 

River Road, Unit 26, Riverdale, MD 

20737–1236; (301) 734–7228. 

SUPPLEMENTARY INFORMATION: 

Background 

Karnal bunt is a fungal disease of 

wheat (Triticum aestivum), durum 

wheat (Triticum durum), and triticale 

(Triticum aestivum X Secale cereale), a 

hybrid of wheat and rye. Karnal bunt is 

caused by the fungus Tilletia indica 

(Mitra) Mundkur and is spread 

primarily through the planting of 

infected seed followed by very specific 

environmental conditions matched 

during specific stages of wheat growth. 

The U.S. Department of Agriculture’s 

Animal and Plant Health Inspection 

Service regulates the movement of 

articles in the United States that could 

spread Karnal bunt and works toward 

eventual eradication of Karnal bunt 

through biosanitary measures. 

In an interim rule 1 effective and 

published in the Federal Register on 

November 10, 2010 (75 FR 68942– 

68945, Docket No. APHIS–2009–0079), 

we amended the Karnal bunt regulations 

in 7 CFR 301.89–1 through 301.89–16 

by adding the Buckeye/Pretoria area of 

Maricopa County, AZ, to the list of 

regulated areas. The interim rule also 

removed Throckmorton and Young 

Counties, TX, portions of Riverside 

County, CA, and certain areas in La Paz, 

Maricopa, and Pinal Counties, AZ, from 

the list of regulated areas in § 301.89–3 

based on our determination that those 

fields or areas meet our criteria for 

release from regulation. 

We solicited comments concerning 

the interim rule for 60 days ending 

January 10, 2011. We did not receive 

any comments. However, after the 

publication of the interim rule, we 

noted that in amending the entry for 

Maricopa County, AZ, in § 301.89–3, we 

inadvertently removed paragraphs (3) 

and (4) in the description of the 

quarantined areas in that county. We are 

reinstating those paragraphs in this final 

rule. 

Therefore, for the reasons given in the 

interim rule, we are adopting the 

interim rule as a final rule with change 

discussed in this document. 

This action also affirms the 

information contained in the interim 

rule concerning Executive Order 12866 

and the Regulatory Flexibility Act, 

Executive Orders 12372 and 12988, and 

the Paperwork Reduction Act. 

Further, for this action, the Office of 

Management and Budget has waived its 

review under Executive Order 12866. 

Effective Date 

Pursuant to the administrative 

procedure provisions in 5 U.S.C. 553, 

we find good cause for making this rule 

effective less than 30 days after 

publication in the Federal Register. The 

interim rule adopted as final by this rule 

became effective on November 10, 2010. 

This rule reinstates two paragraphs of 

the description of the regulated area in 

Maricopa County, AZ. Immediate action 


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