Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33683 

mismanagement, gross waste of funds, 

abuse of authority, or substantial and 

specific danger to public health or 

safety. It does not include a disclosure 

that is specifically prohibited by law or 

required by Executive order to be kept 

secret in the interest of national defense 

or foreign affairs, unless such 

information is disclosed to the Special 

Counsel, the Inspector General of an 

agency, or an employee designated by 

the head of the agency to receive it. 

* * * * * 

67. In § 1209.5 revise paragraphs (a) 

and (b) as follows: 

§ 1209.5 Time of filing. 

(a) General rule. The appellant must 

seek corrective action from the Special 

Counsel before appealing to the Board 

unless the action being appealed is 

otherwise appealable directly to the 

Board and the appellant has elected a 

direct appeal. (See § 1209.2(d) regarding 

election of remedies under 5 U.S.C. 

7121(g)). Where the appellant has 

sought corrective action, the time limit 

for filing an appeal with the Board is 

governed by 5 U.S.C. 1214(a)(3). Under 

that section, an appeal must be filed: 

(1) No later than 65 days after the date 

of issuance of the Special Counsel’s 

written notification to the appellant that 

it was terminating its investigation of 

the appellant’s allegations or, if the 

appellant shows that the Special 

Counsel’s notification was received 

more than 5 days after the date of 

issuance, within 60 days after the date 

the appellant received the Special 

Counsel’s notification; or 

(2) At any time after the expiration of 

120 days, if the Special Counsel has not 

notified the appellant that it will seek 

corrective action on the appellant’s 

behalf within 120 days of the date of 

filing of the request for corrective 

action. 

(b) Equitable tolling; extension of 

filing deadline. The appellant’s deadline 

for filing an individual right of action 

appeal with the Board after receiving 

written notification from the Special 

Counsel that it was terminating its 

investigation of his or her allegations is 

subject to the doctrine of equitable 

tolling, which permits the Board to 

extend the deadline where the 

appellant, despite having diligently 

pursued his or her rights, was unable to 

make a timely filing. Examples include 

cases involving deception or in which 

the appellant filed a defective pleading 

during the statutory period. 

(c) * * * 

68. In § 1209.6 revise paragraph (b) to 

read as follows: 

§ 1209.6 Content of appeal; right to 

hearing. 

* * * * * 

(b) Right to hearing. An appellant 

generally has a right to a hearing if the 

appeal has been timely filed and the 

Board has jurisdiction over the appeal. 

* * * * * 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. 2012–13655 Filed 6–6–12; 8:45 am] 

BILLING CODE 7400–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2011–0114] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security, U.S. Customs and Border 

Protection, DHS/CBP—017 Analytical 

Framework for Intelligence (AFI) 

System of Records 

AGENCY: Privacy Office, DHS. 

ACTION: Notice of proposed rulemaking. 

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/ 

U.S. Customs and Border Protection— 

017 Analytical Framework for 

Intelligence (AFI) System of Records’’ 

and this proposed rulemaking. In this 

proposed rulemaking, the Department 

proposes to exempt 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 July 9, 2012. 

ADDRESSES: You may submit comments, 

identified by docket number DHS– 

2012–0114, 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 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 please contact: 

Laurence E. Castelli (202–325–0280), 

CBP Privacy Officer, Office of 

International Trade, U.S. Customs and 

Border Protection, Mint Annex, 799 

Ninth Street NW., Washington, DC 

20229. 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:

I. Background 

In accordance with the Privacy Act of 

1974, 5 U.S.C. 552a, the Department of 

Homeland Security (DHS) U.S. Customs 

and Border Protection (CBP) proposes to 

establish a new DHS system of records 

titled, ‘‘DHS/U.S. Customs and Border 

Protection, DHS/CBP—017 Analytical 

Framework for Intelligence (AFI) 

System of Records.’’ 

AFI enhances DHS’s ability to 

identify, apprehend, and prosecute 

individuals who pose a potential law 

enforcement or security risk; and aids in 

the enforcement of customs and 

immigration laws, and other laws 

enforced by DHS at the border. AFI is 

used for the purposes of: (1) Identifying 

individuals, associations, or 

relationships that may pose a potential 

law enforcement or security risk, 

targeting cargo that may present a threat, 

and assisting intelligence product users 

in the field in preventing the illegal 

entry of people and goods, or 

identifying other violations of law; (2) 

conducting additional research on 

persons and/or cargo to understand 

whether there are patterns or trends that 

could assist in the identification of 

potential law enforcement or security 

risks; and (3) sharing finished 

intelligence products developed in 

connection with the above purposes 

with DHS employees who have a need 

to know in the performance of their 

official duties and who have appropriate 

clearances or permissions. Finished 

intelligence products are tactical, 

operational, and strategic law 

enforcement intelligence products that 

have been reviewed and approved for 

sharing with finished intelligence 

product users and authorities outside of 

DHS, pursuant to routine uses. 

To support its capability to query, 

efficiently, multiple data sources, AFI 

creates and maintains an index, which 

is a portion of the necessary and 

relevant data in existing operational 


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33684 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 

DHS source systems, by ingesting this 

data through and from the Automated 

Targeting System (ATS) and those 

source systems. In addition to the index, 

AFI provides AFI analysts with different 

tools that assist in detecting trends, 

patterns, and emerging threats, and in 

identifying non-obvious relationships. 

AFI improves the efficiency and 

effectiveness of CBP’s research and 

analysis process by providing a platform 

for the research, collaboration, approval, 

and publication of finished intelligence 

products. 

AFI provides a platform for preparing 

responses to requests for information 

(RFIs). AFI will centrally maintain the 

requests, the research based on those 

requests, and the response to those 

requests. AFI allows analysts to perform 

federated queries against external data 

sources, including the Department of 

State, the Department of Justice/FBI, as 

well as publicly and commercially 

available data sources and, eventually, 

classified data. AFI also enables an 

authorized user to search the Internet 

for additional information that may 

contribute to an intelligence gathering 

and analysis effort. AFI facilitates the 

sharing of finished intelligence products 

within DHS and tracks sharing outside 

of DHS. 

Two principal types of users will 

access AFI: DHS analysts and DHS 

finished intelligence product users. 

Analysts will use the system to obtain 

a more comprehensive view of data 

available to CBP, and then analyze and 

interpret that data using the 

visualization and collaboration tools 

accessible in AFI. If an analyst finds 

actionable terrorist, law enforcement, or 

intelligence information, he may use 

relevant information to produce a 

report, create an alert, or take some 

other appropriate action within DHS’s 

mission and authorities. In addition to 

using AFI as a workspace to analyze and 

interpret data, analysts may submit or 

respond to RFIs, assign tasks, or create 

finished intelligence products based on 

their research or in response to an RFI. 

Finished intelligence product users are 

officers, agents, and employees of DHS 

who have been determined to have a 

need to know in the performance of 

their official duties and who have 

appropriate clearances or permissions. 

Finished intelligence product users will 

have more limited access to AFI, will 

not have access to the research space or 

tools, and will only view finished 

intelligence products that analysts 

published in AFI. Finished intelligence 

product users are not able to query the 

data from the source systems through 

AFI. 

AFI performs extensive auditing that 

records the search activities of all users 

to mitigate any risk of authorized users 

conducting searches for inappropriate 

purposes. AFI also requires that analysts 

re-certify annually any user-provided 

information marked as containing PII to 

ensure its continued relevance and 

accuracy. Analysts will be prompted to 

re-certify any documents that maintain 

PII which are not related to a finished 

intelligence product. Information that is 

not re-certified is automatically purged 

from AFI. Account access is controlled 

by AFI passing individual user 

credentials to the originating system or 

through a previously approved 

certification process in another system 

in order to minimize the risk of 

unauthorized access. When an analyst 

conducts a search for products, AFI will 

only display those results that an 

individual user has permission to view. 

Consistent with DHS’s information 

sharing mission, information stored in 

AFI may be shared consistent with the 

Privacy Act, including in accordance 

with the routine uses, and applicable 

laws as described below including 

sharing with other DHS components 

and appropriate federal, state, local, 

tribal, territorial, foreign, multilateral, or 

international government agencies. This 

sharing will only take place after DHS 

determines that the receiving 

component or agency has a need to 

know the information and the 

information will be used consistent with 

the Privacy Act, including the routine 

uses set forth in the SORN, in order to 

carry out national security, law 

enforcement, customs, immigration, 

intelligence, or other authorized 

functions. 

DHS is claiming exemptions from 

certain requirements of the Privacy Act 

for DHS/CBP—017 Analytical 

Framework for Intelligence (AFI) 

System of Records. Some information in 

AFI relates to official DHS national 

security, law enforcement, and 

immigration activities. The exemptions 

are required to preclude subjects from 

compromising an ongoing law 

enforcement, national security or fraud 

investigation; to avoid disclosure of 

investigative techniques; to protect the 

identities and physical safety of 

confidential informants and law 

enforcement personnel; and to ensure 

DHS’s ability to obtain information from 

third parties and other sources. 

Pursuant to 5 U.S.C. 552a(j)(2), this 

system is exempted from the following 

provisions of the Privacy Act: 5 U.S.C. 

552a(c)(3) and (c)(4); (d); (e)(1), (e)(2), 

(e)(3), (e)(4)(G), (e)(4)(H), (e)(5), (e)(8); 

(f); and (g). Additionally, pursuant to 5 

U.S.C. 552a(k)(1) and (2) this system is 

exempted from the following provisions 

of the Privacy Act: 5 U.S.C 552a(c)(3); 

(d); (e)(1), (e)(4)(G), (e)(4)(H); and (f). 

Many of the functions in this system 

require retrieving records from law 

enforcement systems. Where a record 

received from another system has been 

exempted in that source system under 5 

U.S.C. 552a(j)(2), (k)(1) and/or (k)(2), 

DHS will claim the same exemptions for 

those records that are claimed for the 

original primary systems of records from 

which they originated and claims any 

additional exemptions in accordance 

with this rule. 

The exemptions proposed here are 

standard for agencies where the 

information may contain investigatory 

materials compiled for law enforcement 

purposes. These exemptions are 

exercised by executive federal agencies. 

In appropriate circumstances, where 

compliance would not appear to 

interfere with or adversely affect 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/ 

CBP—017 Analytical Framework for 

Intelligence (AFI) is also published in 

this issue of the Federal Register. 

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 persons, 

regardless of citizenship, where a 

system of records maintains information 

on both U.S. citizens and lawful 

permanent residents, as well as visitors. 

The Privacy Act allows government 

agencies to exempt systems of records 

from certain provisions of the Act. If an 

agency claims an exemption, however, 

it must issue a Notice of Proposed 

Rulemaking and a Final Rule to make 

clear to the public the reasons why a 

particular exemption is claimed. 

List of Subjects in 6 CFR Part 5 

Freedom of information; Privacy. 


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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Proposed Rules 33685 

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: Public Law 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, the following new paragraph 

‘‘68’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

68. The DHS/CBP—017 Analytical 

Framework for Intelligence (AFI) System of 

Records consists of electronic and paper 

records and will be used by DHS and its 

components. The DHS/CBP—017 Analytical 

Framework for Intelligence (AFI) System of 

Records is a repository of information held 

by DHS to enhance DHS’s ability to: identify, 

apprehend, and/or prosecute individuals 

who pose a potential law enforcement or 

security risk; aid in the enforcement of the 

customs and immigration laws, and other 

laws enforced by DHS at the border; and 

enhance United States security. This system 

also supports certain other DHS programs 

whose functions include, but are not limited 

to, the enforcement of civil and criminal 

laws; investigations, inquiries, and 

proceedings there under; and national 

security and intelligence activities. The DHS/ 

CBP—017 Analytical Framework for 

Intelligence (AFI) 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 certain provisions 

of the Privacy Act as follows: 

• Pursuant to 5 U.S.C. 552a(j)(2), the 

system is exempt from 5 U.S.C. 552a(c)(3) 

and (c)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), 

(e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g). 

• Pursuant to 5 U.S.C. 552a(j)(2), the 

system (except for any records that were 

ingested by AFI where the source system of 

records already provides access and/or 

amendment under the Privacy Act) is exempt 

from 5 U.S.C. 552a(d)(1), (d)(2), (d)(3), and 

(d)(4). 

• Pursuant to 5 U.S.C. 552a(k)(1), the 

system is exempt from 5 U.S.C. 552a(c)(3); 

(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). 

• Pursuant to 5 U.S.C. 552a(k)(1), the 

system is exempt from (d)(1), (d)(2), (d)(3), 

and (d)(4). 

• Pursuant to 5 U.S.C. 552a(k)(2), the 

system is exempt from 5 U.S.C. 552a(c)(3); 

(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). 

• Pursuant to 5 U.S.C. 552a(k)(2), the 

system (except for any records that were 

ingested by AFI where the source system of 

records already provides access and/or 

amendment under the Privacy Act) is exempt 

from (d)(1), (d)(2), (d)(3), and (d)(4). 

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 and 

national security, 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 

and national security activities. 

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

Individuals) because providing such detailed 

information could impede law enforcement 

and national security 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 (g)(1) (Civil Remedies) 

to the extent that the system is exempt from 

other specific subsections of the Privacy Act. 

Dated: June 4, 2012. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2012–13815 Filed 6–6–12; 8:45 am] 

BILLING CODE 9110–06–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2012–0365; Airspace 

Docket No. 12–ASO–22] 

Proposed Establishment of Class E 

Airspace; Arcadia, FL 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This action proposes to 

establish Class E Airspace at Arcadia, 

FL, to accommodate the Area 

Navigation (RNAV) Global Positioning 

System (GPS) Standard Instrument 

Approach Procedures at Arcadia 

Municipal Airport. This action would 

enhance the safety and airspace 

management of Instrument Flight Rules 

(IFR) operations at the airport. 

DATES: Comments must be received on 

or before July 23, 2012. The Director of 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS