Federal Register / Vol. 76, No. 137 / Monday, July 18, 2011 / Rules and Regulations 42003 

protection officer position made under 

§ 842.1003(a) may be appealed to the 

Merit Systems Protection Board under 

procedures prescribed by the Board. 

(b) The final decision of the agency 

head denying an individual coverage 

while serving in an approved secondary 

position because of failure to meet the 

conditions in § 842.1003(b) may be 

appealed to the Merit Systems 

Protection Board under procedures 

prescribed by the Board. 

§ 842.1008 Oversight of coverage 

determinations. 

(a) Upon deciding that a position is a 

customs and border protection officer, 

the Department of Homeland Security 

must notify OPM (Attention: Associate 

Director, Retirement Services, or such 

other official as may be designated) 

stating the title of each position, the 

occupational series of the position, the 

number of incumbents, whether the 

position is primary or secondary, and, if 

the position is a primary position, the 

established maximum entry age, if one 

has been established. The Director of 

OPM retains the authority to revoke the 

agency head’s determination that a 

position is a primary or secondary 

position. 

(b) The Department of Homeland 

Security must establish and maintain a 

file containing all coverage 

determinations made by the agency 

head under § 842.1003(a) and (b), and 

all background material used in making 

the determination. 

(c) Upon request by OPM, the 

Department of Homeland Security will 

make available the entire coverage 

determination file for OPM to audit to 

ensure compliance with the provisions 

of this subpart. 

(d) Upon request by OPM, the 

Department of Homeland Security must 

submit to OPM a list of all covered 

positions and any other pertinent 

information requested. 

§ 842.1009 Elections of retirement 

coverage, exclusions from retirement 

coverage, and proportional annuity 

computations. 

(a) Election of coverage. (1) The 

Department of Homeland Security must 

provide an individual who is a customs 

and border protection officer on 

December 26, 2007, with the 

opportunity to elect not to be treated as 

a customs and border protection officer 

under section 535(a) and (b) of the 

Department of Homeland Security 

Appropriations Act, 2008, Public Law 

110–161, 121 Stat. 2042. 

(2) An election under this paragraph 

is valid only if made on or before June 

22, 2008. 

(3) An individual eligible to make an 

election under this paragraph who fails 

to make such an election on or before 

June 22, 2008, is deemed to have elected 

to be treated as a customs and border 

protection officer for retirement 

purposes. 

(b) Exclusion from coverage. The 

provisions of this subpart and any other 

specific reference to customs and border 

protection officers in this part do not 

apply to employees who on December 

25, 2007, were law enforcement officers, 

under subpart H of this part or subpart 

I of part 831, within U.S. Customs and 

Border Protection. These employees 

cannot elect to be treated as a customs 

and border protection officer under 

paragraph (a) of this section, nor can 

they be deemed to have made such an 

election. 

(c) Proportional annuity computation. 

The annuity of an employee serving in 

a primary or secondary customs and 

border protection officer position on 

July 6, 2008, must, to the extent that its 

computation is based on service 

rendered as a customs and border 

protection officer on or after that date, 

be at least equal to the amount that 

would be payable— 

(1) To the extent that such service is 

subject to the Civil Service Retirement 

System, by applying section 8339(d) of 

title 5, United States Code, with respect 

to such service; and 

(2) To the extent such service is 

subject to the Federal Employees’ 

Retirement System, by applying section 

8415(d) of title 5, United States Code, 

with respect to such service. 

[FR Doc. 2011–18006 Filed 7–15–11; 8:45 am] 

BILLING CODE 6325–63–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2011–0037] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security Transportation Security 

Administration—023 Workplace 

Violence Prevention Program 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/Transportation Security 

Administration—023 Workplace 

Violence Prevention Program System of 

Records’’ from certain provisions of the 

Privacy Act. Specifically, the 

Department exempts portions of the 

‘‘Department of Homeland Security/ 

Transportation Security 

Administration—023 Workplace 

Violence Prevention Program 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 18, 2011. 

FOR FURTHER INFORMATION CONTACT: For 

general questions please contact: Ted 

Calhoun, Office of Law Enforcement, 

TSA–18, Transportation Security 

Administration, 601 South 12th Street, 

Arlington, VA 20598–6018; e-mail 

Ted.Calhoun@dhs.gov. 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) Transportation Security 

Administration (TSA) published a 

notice of proposed rulemaking (NPRM) 

in the Federal Register, 75 FR 7978, 

February 23, 2010, proposing to exempt 

portions of the DHS/TSA–023 

Workplace Violence Prevention Program 

system of records from one or more 

provisions of the Privacy Act because of 

criminal, civil, and administrative 

enforcement requirements. The DHS/ 

TSA–023 Workplace Violence 

Prevention Program system of records 

notice (SORN) was published 

concurrently in the Federal Register, 75 

FR 8096, February 23, 2010, and 

comments were invited on both the 

NPRM and SORN. 

Public Comments 

DHS/TSA received one comment on 

the NPRM and no comments on the 

SORN. 

NPRM 

DHS/TSA received one comment from 

the public that supported the proposed 

rule. No other substantive or significant 

comments were received. 

SORN 

TSA received no comments on the 

SORN. 

After consideration of the public 

comment received, the Department will 

implement the rulemaking as proposed. 

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42004 Federal Register / Vol. 76, No. 137 / Monday, July 18, 2011 / Rules and Regulations 

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 

‘‘56’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

56. The DHS/TSA–023 Workplace 

Violence Prevention Program System of 

Records consists of electronic and paper 

records and is used by the TSA in the 

administration of its Workplace Violence 

Prevention Program, an internal TSA 

program designed to prevent and respond to 

workplace violence. The DHS/TSA–023 

Workplace Violence Prevention Program 

System of Records is a repository of 

information held by TSA 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. The DHS/TSA–023 Workplace 

Violence Prevention Program System of 

Records contains information collected by 

TSA, 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 portions of 

this system from the following provisions of 

the Privacy Act, subject to the limitations set 

forth in (c)(3); (d); (e)(1), (e)(4)(G); (e)(4)(H); 

(e)(4)(I); and (f) of the Privacy Act pursuant 

to 5 U.S.C. 552a(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. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2011–17938 Filed 7–15–11; 8:45 am] 

BILLING CODE 9110–05–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2011–0050] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security Federal Emergency 

Management Agency—011 Training 

and Exercise Program 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 Federal Emergency 

Management Agency—011 Training and 

Exercise Program Records System of 

Records’’ from certain provisions of the 

Privacy Act. Specifically, the 

Department exempts portions of the 

‘‘Department of Homeland Security 

Federal Emergency Management 

Agency—011 Training and Exercise 

Program 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 18, 2011. 

FOR FURTHER INFORMATION CONTACT: For 

general questions please contact: 

Dr. Lesia Banks (202–646–3323), Acting 

Privacy Officer, Federal Emergency 

Management Agency, Department of 

Homeland Security, Washington, DC 

20478. 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) Federal Emergency 

Management Agency (FEMA) published 

a notice of proposed rulemaking 

(NPRM) in the Federal Register, 76 FR 

18954, April 6, 2011, 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/FEMA—011 Training and 

Exercise Program Records System of 

Records. The DHS/FEMA—011 Training 

and Exercise Program Records system of 

records notice (SORN) was published 

concurrently in the Federal Register, 

76 FR 19107, April 6, 2011, and 

comments were invited on both the 

NPRM and SORN. 

Public Comments 

DHS did not receive comments on the 

NPRM or 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: 

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