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

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.


### 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 theseparticular 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: