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.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

27847 

Vol. 76, No. 93 

Friday, May 13, 2011 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2011–0031] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security/U.S. Coast Guard—008 Courts 

Martial Case Files 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 

Department of Homeland Security/U.S. 

Coast Guard system of records titled, 

‘‘Department of Homeland Security/U.S. 

Coast Guard—008 Courts Martial Case 

Files System of Records′′ from certain 

provisions of the Privacy Act. 

Specifically, the Department exempts 

portions of the Department of Homeland 

Security/U.S. Coast Guard—008 Courts 

Martial Case Files 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 May 13, 2011. 

FOR FURTHER INFORMATION CONTACT: For 

general questions please contact: Eileen 

Yenikaliotis (202–475–3530), Acting 

Privacy Officer, U.S. Coast Guard. For 

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) U.S. Coast Guard 

(USCG) published a notice of proposed 

rulemaking (NPRM) in the Federal 

Register, 73 FR 64899, October 31, 2008, 

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/USCG—008 

Courts Martial Case Files System of 

Records. The DHS/USCG—008 Courts 

Martial Case Files system of records 

notice (SORN) was published 

concurrently in the Federal Register, 73 

FR 64961, October 31, 2008. Comments 

were invited on both the NPRM and the 

SORN. Public comments were received 

on the NPRM. No comments were 

received on the SORN. 

Public Comments 

DHS/USCG received two public 

comments on the NPRM. The first 

comment focused on the rights of an 

individual stating that ‘‘in all criminal 

prosecutions, the accused shall enjoy 

the right to a speedy and public trial, by 

an impartial jury of the state and district 

where in the crime shall have been 

committed, which district shall have 

been previously ascertained by law, and 

to be informed of the nature and cause 

of the accusation; to be confronted with 

the witnesses against him; to have 

compulsory process for obtaining 

witnesses in his favor, and to have the 

assistance of counsel for his defense.′′ 

This system will be used by the DHS/ 

USCG to collect and maintain records 

on military and civilian employees of 

the DHS/USCG who are tried by, or 

involved with, a courts martial in the 

DHS/USCG. By issuing these 

exemptions, DHS/USCG is not 

abdicating its duty to conduct fair and 

impartial courts martial proceedings. 

Rather, these exemptions only apply to 

the Privacy Act and would not limit the 

ability of an individual to obtain records 

pursuant to other authorities, such as 

applicable rules for courts martial. 

The second public comment received 

focused on withholding information 

from a member of the DHS/USCG 

uniformed service as a result of the 

exemptions claimed in the proposed 

rule. Exemptions claimed in the 

proposed rule are neither designed nor 

intended, without reason, to withhold 

information from anyone. However, it is 

occasionally necessary and appropriate 

for the DHS/USCG to protect material 

compiled for law enforcement purposes, 

including some records pertaining to 

investigations, inquiries, and criminal 

proceedings, as well as national security 

and intelligence activities. No 

comments were received on the system 

of records notice. DHS 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: 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. 

Subpart B also issued under 5 U.S.C. 552a. 

■ 2. Add at the end of Appendix C to 

part 5, Exemption of Record Systems 

under the Privacy Act, paragraph 54 to 

read as follows: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

12. The DHS/USCG—008 Courts Martial 

Case Files System of Records consists of 

electronic and paper records and will be used 

by DHS/USCG. The DHS/USCG—008 Courts 

Martial Case Files System of Records is a 

repository of information held by DHS/USCG 

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; and national 

security and intelligence activities. The DHS/ 

USCG—008 Courts Martial Case Files System 

of Records contains information that is 

collected by, on behalf of, in support of, or 

in cooperation with DHS/USCG 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) and (c)(4); (d); (e)(1), (e)(2), (e)(3), 

(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); 

(f); and (g) pursuant to 5 U.S.C. 552a(j)(2). 

Additionally, 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) and (k)(2). Exemptions from these 

particular subsections are justified, on a caseWReier-Aviles on DSKGBLS3C1PROD with RULES

27848 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 

by-case basis to be determined at the time a 

request is made, for the following reasons: 

(a) From subsection (c)(3) and (c)(4) 

(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 subsection (e)(2) (Collection of 

Information from Individuals) because 

requiring that information be collected from 

the subject of an investigation would alert the 

subject to the nature or existence of an 

investigation, thereby interfering with the 

related investigation and law enforcement 

activities. 

(e) From subsection (e)(3) (Notice to 

Subjects) because providing such detailed 

information would impede law enforcement 

in that it could compromise investigations by 

revealing the existence of an otherwise 

confidential investigation and thereby 

provide an opportunity for the subject of an 

investigation to conceal evidence, alter 

patterns of behavior, or take other actions 

that could thwart investigative efforts; reveal 

the identity of witnesses in investigations, 

thereby providing an opportunity for the 

subjects of the investigations or others to 

harass, intimidate, or otherwise interfere 

with the collection of evidence or other 

information from such witnesses; or reveal 

the identity of confidential informants, 

which would negatively affect the 

informant’s usefulness in any ongoing or 

future investigations and discourage 

members of the public from cooperating as 

confidential informants in any future 

investigations. 

(f) 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. 

(g) From subsection (e)(5) (Collection of 

Information) because in the collection of 

information for law enforcement purposes it 

is impossible to determine in advance what 

information is accurate, relevant, timely, and 

complete. Compliance with (e)(5) would 

preclude DHS agents from using their 

investigative training and exercise of good 

judgment to both conduct and report on 

investigations. 

(h) From subsection (e)(8) (Notice on 

Individuals) because compliance would 

interfere with DHS’ ability to obtain, serve, 

and issue subpoenas, warrants, and other law 

enforcement mechanisms that may be filed 

under seal, and could result in disclosure of 

investigative techniques, procedures, and 

evidence. 

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

the system is exempt from other specific 

subsections of the Privacy Act relating to 

individuals’ rights to access and amend their 

records contained in the system. Therefore 

DHS is not required to establish rules or 

procedures pursuant to which individuals 

may seek a civil remedy for the agency’s: 

refusal to amend a record; refusal to comply 

with a request for access to records; failure 

to maintain accurate, relevant, timely and 

complete records; or failure to otherwise 

comply with an individual’s right to access 

or amend records. 

Dated: April 19, 2011. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2011–11689 Filed 5–12–11; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 927 

[Doc. No. AMS–FV–10–0072; FV10–927–1 

FIR] 

Pears Grown in Oregon and 

Washington; Amendment To Allow 

Additional Exemptions 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Adoption of interim rule as 

final. 

SUMMARY: The Department of 

Agriculture is adopting, as a final rule, 

without change, an interim rule that 

added an exemption to the marketing 

order for Oregon-Washington pears that 

provides for the sale of fresh pears 

directly to consumers without regard to 

regulation. For each customer, the 

interim rule provided an exemption for 

consumer-direct sales of up to 220 

pounds of fresh pears per transaction, 

for home use only, made directly at 

orchards, packing facilities, roadside 

stands, or farmers’ markets without 

regard to the marketing order’s 

assessment, reporting, handling, and 

inspection requirements. This action is 

intended to provide increased marketing 

flexibility to small pear handlers, while 

facilitating the sale of fresh, local pears 

directly to consumers. 

DATES: Effective May 16, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Teresa Hutchinson or Gary Olson, 

Northwest Marketing Field Office, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, Portland, Oregon; 

Telephone: (503) 326–2724, Fax: (503) 

326–7440, or E-mail: 

Teresa.Hutchinson@ams.usda.gov or 

Gary D.Olson@ams.usda.gov. 

Small businesses may obtain 

information on complying with this and 

other marketing order regulations by 

viewing a guide at the following Web 

site: http://www.ams.usda.gov/ 

Marketing Orders Small Business Guide; 

or by contacting Laurel May, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; 

Telephone: (202) 720–2491, Fax: (202) 

720–8938, or E-mail: 

Laurel.May@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

927, as amended (7 CFR part 927), 

regulating the handling of pears grown 

in Oregon and Washington, hereinafter 

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