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[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Proposed Rules]
[Pages 39315-39317]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16806]

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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0060]

Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL--030 Use of the Terrorist Screening Database 
System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/ALL--030 Use of 
the Terrorist Screening Database System of Records'' and this proposed 
rulemaking. In this proposed rulemaking, the Department proposes 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.

DATES: Comments must be received on or before August 5, 2011.

ADDRESSES: You may submit comments, identified by docket number DHS-
2011-0060, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 703-483-2999.
     Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.
     Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
     Docket: For access to the docket to read background 
documents or

[[Page 39316]]

comments received go to http://www.regulations.gov.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

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:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) proposes to establish a new 
system of records titled, ``DHS/ALL--030 Use of the Terrorist Screening 
Database (TSDB) System of Records.'' DHS is maintaining a mirror copy 
of the Department of Justice (DOJ)/Federal Bureau of Investigation 
(FBI)--019 Terrorist Screening Records System of Records (August 22, 
2007, 72 FR 47073) in order to automate and simplify the current method 
for transmitting the TSDB to DHS and its components.
    Homeland Security Presidential Directive 6 (HSPD-6), issued in 
September 2003, called for the establishment and use of a single 
consolidated watchlist to improve the identification, screening, and 
tracking of known or suspected terrorists and their supporters. The 
FBI/TSC maintains and distributes the TSDB as the U.S. government's 
consolidated terrorist watchlist. DHS and the FBI/TSC, working 
together, have developed the DHS Watchlist Service (WLS) in order to 
automate and simplify the current method for transmitting TSDB records 
from the FBI/TSC to DHS and its components.
    The WLS will allow the FBI/TSC and DHS to move away from a manual 
and cumbersome process of data transmission and management to an 
automated and centralized process. The WLS will replace multiple data 
feeds from the FBI/TSC to DHS and its components, as documented by 
information sharing agreements, with a single feed from the FBI/TSC to 
DHS and its components. The WLS is a system to system secure connection 
with no direct user interface.
    DHS and its components are authorized to access TSDB records via 
the WLS pursuant to the terms of information sharing agreements with 
FBI/TSC. DHS is publishing this SORN and has published privacy impact 
assessments to provide additional transparency into how DHS has 
implemented WLS. DHS will review and update this SORN no less then 
biennially as new DHS systems come online with the WLS and are approved 
consistent with the terms of agreements with FBI/TSC. There are five 
DHS systems that currently receive TSDB data directly from the FBI/TSC 
and will use the WLS. These systems have existing SORNs that cover the 
use of the TSDB:
    (1) Transportation Security Administration (TSA), Office of 
Transportation Threat Assessment and Credentialing: DHS/TSA--002 
Transportation Security Threat Assessment System (May 19, 2010, 75 FR 
28046);
    (2) TSA, Secure Flight Program: DHS/TSA--019 Secure Flight Records 
System (November 9, 2007, 72 FR 63711);
    (3) U.S. Customs and Border Protection (CBP), Passenger Systems 
Program Office for inclusion in TECS: DHS/CBP--011 TECS System 
(December 19, 2008 73 FR 77778);
    (4) U.S. Visitor and Immigration Status Indicator Technology (US-
VISIT) Program for inclusion into the DHS Enterprise Biometrics Service 
(IDENT): DHS/USVISIT--0012 DHS Automated Biometric Identification 
System (June 5, 2007, 72 FR 31080); and
    In addition, two DHS components will receive TSDB data via the WLS 
in the form of a computer readable extract. The components' use of the 
TSDB data is covered by existing SORNs:
    (1) Office of Intelligence and Analysis (I&A): DHS/IA-001 
Enterprise Records System, (May 15, 2008 73 FR 28128), and
    (2) U.S. Immigration and Customs Enforcement (ICE): DHS/ICE-009 
External Investigations, (January 5, 2010 75 FR 404).
    Information stored in the WLS will be shared back with the FBI/TSC 
in order to ensure that DHS and the FBI/TSC can reconcile any 
differences in the database and ensure DHS has the most up-to-date and 
accurate version of TSDB records. All other sharing will be conducted 
pursuant to the programmatic system of records notices and privacy 
impact assessments discussed in this SORN.
    DHS is planning future enhancements to the WLS that will provide 
for a central mechanism to receive information from DHS components when 
they encounter a potential match to the TSDB and send this information 
to the FBI/TSC. DHS will update this SORN to reflect such enhancements 
to the WLS, as part of its biennial reviews of this SORN once that 
capability is implemented.
    DHS is publishing this SORN to cover the Department's use of the 
TSDB in order to provider greater transparency to the process.
    Concurrent with the publication of this SORN, DHS is issuing a 
Notice of Proposed Rulemaking to exempt this system from specific 
sections of the Privacy Act.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which the U.S. Government 
collects, maintains, uses, and disseminates personally identifiable 
information. The Privacy Act applies to information that is maintained 
in a ``system of records.'' A ``system of records'' is a group of any 
records under the control of an agency from which information is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. In 
the Privacy Act, an individual is defined to encompass U.S. citizens 
and lawful permanent residents. As a matter of policy, DHS extends 
administrative Privacy Act protections to all individuals where systems 
of records maintain information on U.S. citizens, lawful permanent 
residents, and visitors.
    The Privacy Act allows government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/ALL--030 Use of the Terrorist Screening Database System of 
Records. Some information in DHS/ALL--030 Use of the Terrorist 
Screening Database System of Records relates to official DHS national 
security and law enforcement activities. These exemptions are needed to 
protect information relating to DHS activities from disclosure to 
subjects or others related to these activities. Specifically, the 
exemptions are required to preclude subjects of these activities from 
frustrating these processes. Disclosure of information to the subject 
of the inquiry could also permit the subject to avoid detection or 
apprehension. In addition, as a recipient of a mirror copy of the

[[Page 39317]]

TSDB, which is maintained by the FBI/TSC, DHS is carrying forward the 
exemptions taken by the DOJ/FBI--019 Terrorist Screening Records System 
of Records (August 22, 2007, 72 FR 47073) in order to prevent these 
records from improper disclosure. The exemptions proposed here are 
standard law enforcement and national security exemptions exercised by 
a large number of federal law enforcement and intelligence agencies. In 
appropriate circumstances, where compliance would not appear to 
interfere with or adversely affect the law enforcement purposes of this 
system and the overall law enforcement process, the applicable 
exemptions may be waived on a case by case basis.
    A notice of system of records for DHS/ALL--030 Use of Terrorist 
Screening Database System of Records is also published in this issue of 
the Federal Register.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

    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:  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. At the end of Appendix C to Part 5, add paragraph 55 to read as 
follows:

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

* * * * *
    55. The DHS/ALL--030 Use of Terrorist Screening Database System 
of Records consists of electronic and paper records and will be used 
by DHS and its components. The DHS/ALL--030 Use of Terrorist 
Screening Database 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; and protection 
of the President of the U.S. or other individuals pursuant to 
Section 3056 and 3056A of Title 18. The DHS/ALL--030 Use of 
Terrorist Screening Database 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 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), (e)(8), (e)(12); (f); 
(g)(1); and (h) 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 limitation 
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 
case-by-case basis to be determined at the time a request is made, 
for the following reasons:
    (a) From subsection (c)(3) and (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 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 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 the investigation, thereby interfering with 
that investigation and related law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information could impede law enforcement by 
compromising the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (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 
with 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 subsection (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's 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 (e)(12) (Computer Matching) if the agency is 
a recipient agency or a source agency in a matching program with a 
non-Federal agency, with respect to any establishment or revision of 
a matching program, at least 30 days prior to conducting such 
program, publish in the Federal Register notice of such 
establishment or revision.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.
    (k) From subsection (h) (Legal Guardians) the parent of any 
minor, or the legal guardian of any individual who has been declared 
to be incompetent due to physical or mental incapacity or age by a 
court of competent jurisdiction, may act on behalf of the 
individual.

Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2011-16806 Filed 7-5-11; 8:45 am]
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