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[Federal Register Volume 76, Number 45 (Tuesday, March 8, 2011)]
[Proposed Rules]
[Pages 12609-12611]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5094]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 76, No. 45 / Tuesday, March 8, 2011 / 
Proposed Rules

[[Page 12609]]

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2010-0051]

Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security Office of Operations Coordination and Planning--002 
National Operations Center Tracker and Senior Watch Officer Logs 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 Office of 
Operations Coordination and Planning--002 National Operations Center 
Tracker and Senior Watch Officer Logs System of Records and this 
proposed rulemaking. The National Operations Center and Senior Watch 
Officer tracking functions were previously covered by Department of 
Homeland Security/Information Analysis and Infrastructure Protection--
001 Homeland Security Operations Center Database, April 18, 2005. 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 April 7, 2011.

ADDRESSES: You may submit comments, identified by docket number DHS-
2010-0051, 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: 
Michael Page (202-357-7626), Privacy Point of Contact, Office of 
Operations Coordination and Planning, Department of Homeland Security, 
Washington, DC 20528. 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: In accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) 
Office of Operations Coordination and Planning (OPS) proposes to 
establish a new DHS system of records titled, ``DHS/OPS--002 National 
Operations Center Tracker and Senior Watch Officer Logs System of 
Records.''
    The primary role of the Senior Watch Officer (SWO) and the Watch 
Officer Desks, is to provide technical assistance directly in support 
of the DHS core missions to provide situational awareness and establish 
a common operating picture for Federal, State, local, Tribal, and 
territorial agencies and organizations; foreign governments and 
international organizations; domestic security and emergency management 
officials; and private sector entities or individuals as it relates to 
all-threats and all-hazards, man-made disasters and acts of terrorism, 
and natural disasters, and ensure that information reaches government 
decision-makers.
    The SWO Log is a synopsis, in the form of a word document, that 
records all significant information received and actions taken during a 
shift. The NOC Tracker Log is the underlying cumulative repository of 
all NOC responses to threats, incidents, significant activities and 
Requests for Information (RFI) that require a NOC tracking number. The 
NOC Tracker Log contains a copy of all documents and information that 
is requested, shared, and/or researched between all NOC watch stander 
desks.
    The purpose of this system is to tie together the high volume of 
information, requests and responses for information, and data 
collection relevant to discreet events and issues as they arise, and 
making that information easily accessible in an organized form should a 
future event benefit from previously gathered information. The tracker 
numbers are used in a wide variety of products originated by the DHS/
OPS NOC. They are shared inside and outside of DHS and serve as 
shorthand for tying data, use in internal and external reports, and 
agency actions to the event that caused them. DHS is authorized to 
implement this program primarily through 5 U.S.C. 301, 552, 552a; 44 
U.S.C. 3101; 6 U.S.C. 121; Sections 201 and 514 of the Homeland 
Security Act of 2002, as amended; Section 520 of the Post Katrina 
Emergency Management Reform Act; 44 U.S.C. 3101; Executive Order (E.O.) 
12958; E.O. 9397; E.O. 12333; E.O. 13356; E.O. 13388; and Homeland 
Security Presidential Directive 5. This system has an effect on 
individual privacy that is balanced by the need to fuse information 
together and tracking homeland security information coming into and 
going out of OPS, including the NOC. Routine uses contained in this 
notice include sharing with the Department of Justice (DOJ) for legal 
advice and representation; to a congressional office at the request of 
an individual; to the National Archives and Records Administration 
(NARA) for records management; to contractors in support of their 
contract assignment to DHS; to appropriate Federal, State, Tribal, 
local, international, foreign agency, or other appropriate entity 
including the privacy sector in their role aiding OPS in their mission; 
to agencies, organizations or individuals for the purpose of audit; to 
agencies, entities, or persons during a security or information 
compromise or risk; to an agency, organization, or individual when 
there could potentially be a risk to an individual; and to the news 
media in the interest of the public. None of the information collected 
by this system is done so under the Paperwork Reduction Act (PRA).
    Consistent with DHS's information sharing mission, information 
stored in

[[Page 12610]]

the DHS/OPS--002 National Operations Center Tracker and Senior Watch 
Officer Logs System of Records may be shared with other DHS components, 
as well as appropriate Federal, State, local, Tribal, and territorial 
agencies and organizations; foreign governments and international 
organizations; domestic security and emergency management officials; 
and private sector entities or individuals. This sharing will only take 
place after DHS determines that the receiving component or agency has a 
need to know the information to carry out national security, law 
enforcement, immigration, intelligence, or other functions consistent 
with the routine uses set forth in this system of records notice. DHS 
has issued a Notice of Proposed Rulemaking consistent with this system 
of records elsewhere in the Federal Register. This newly established 
system will be included in DHS's inventory of record systems.
    The NOC and SWO tracking functions were previously covered by DHS/
Information Analysis and Infrastructure Protection (IAIP)--001 Homeland 
Security Operations Center Database (April 18, 2005, 70 FR 20061).
    The Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States 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. 
Individuals may request their own records that are maintained in a 
system of records in the possession or under the control of DHS by 
complying with DHS Privacy Act regulations, 6 CFR part 5.
    The Privacy Act requires each agency to publish in the Federal 
Register a description of the type and character of each system of 
records that the agency maintains, and the routine uses that are 
contained in each system in order to make agency recordkeeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals in finding such files within the agency.
    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/OPS--002 National Operations Center Tracker and Senior 
Watch Officer Logs System of Records. Some information in DHS/OPS--002 
National Operations Center Tracker and Senior Watch Officer Logs System 
of Records relates to official DHS national security, law enforcement, 
immigration, and intelligence 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; to avoid disclosure of activity 
techniques; to protect the identities and physical safety of 
confidential informants and law enforcement personnel; to ensure DHS' 
ability to obtain information from third parties and other sources; to 
protect the privacy of third parties; and to safeguard classified 
information. Disclosure of information to the subject of the inquiry 
could also permit the subject to avoid detection or apprehension.
    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/OPS--002 National Operations 
Center Tracker and Senior Watch Officer Logs 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. Add at the end of Appendix C to Part 5, the following new 
paragraph 54:

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

* * * * *
    54. The DHS/OPS--002 National Operations Center Tracker and 
Senior Watch Officer Logs System of Records consists of electronic 
and paper records and will be used by DHS/OPS. The DHS/OPS--002 
National Operations Center Tracker and Senior Watch Officer Logs 
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. The DHS/OPS--002 
National Operations Center Tracker and Senior Watch Officer Logs 
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 is exempting this system from the following provisions of 
the Privacy Act, subject to 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), (k)(2), and (k)(3). 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) (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.

[[Page 12611]]

    (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.

    Dated: February 25, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-5094 Filed 3-7-11; 8:45 am]
BILLING CODE 9110-9A-P
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