This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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REGISTER issue of each week.

Rules and Regulations Federal Register

33605 

Vol. 77, No. 110 

Thursday, June 7, 2012 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2011–0057] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security Office of Operations 

Coordination and Planning—003 

Operations Collection, Planning, 

Coordination, Reporting, Analysis, and 

Fusion 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 Office of Operations 

Coordination and Planning–003 

Operations Collection, Planning, 

Coordination, Reporting, Analysis, and 

Fusion System of Records’’ from certain 

provisions of the Privacy Act. 

Specifically, the Department exempts 

portions of the 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 June 7, 2012. 

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 

The Department of Homeland 

Security (DHS) Office of Operations 

Coordination and Planning (OPS) 

published a notice of proposed 

rulemaking (NPRM) in the Federal 

Register, on November 15, 2010 at 75 

FR 69604, 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 

titled, ‘‘DHS/OPS–003 Operations 

Collection, Planning, Coordination, 

Reporting, Analysis, and Fusion System 

of Records.’’ The DHS/OPS–003 

Operations Collection, Planning, 

Coordination, Reporting, Analysis, and 

Fusion system of records notice (SORN) 

was published concurrently in the 

Federal Register on November 15, 2010 

at 75 FR 69689, and comments were 

invited on both the NPRM and SORN. 

Public Comments 

DHS/OPS received three comments 

on the NPRM and three comments on 

the SORN for a total of six comments. 

Comments on the NPRM 

DHS/OPS received three comments 

on the NPRM. The first NPRM comment 

was from an anonymous individual 

seeking to state an opinion and 

requested no specific action or 

amendment related to the proposed 

rulemaking. The second NPRM 

comment was from an anonymous 

individual supporting the proposed 

rulemaking. The third NPRM comment 

was from a public interest organization 

that filed comments on the NPRM and 

SORN jointly in a comingled fashion 

and the comments on the SORN and 

NPRM are addressed as the second 

SORN comment below. 

Comments on the SORN 

DHS/OPS also received three 

comments on the SORN. The first SORN 

comment was from a media and 

academic partnership and included the 

following points: (1) It is difficult for the 

public to comment on the merits of the 

proposed rulemaking because so little 

information is available on fusion 

centers; (2) the government has failed to 

make available information requested 

under FOIA (an issue unrelated to this 

proposed rulemaking); (3) the proposed 

system does not adequately protect the 

public’s privacy; (4) the new system will 

impose significant costs (an issue 

unrelated to this proposed rulemaking); 

(5) there is fusion center mission creep 

(an issue unrelated to this proposed 

rulemaking); and (6) there are privacy 

violations in fusion center guidelines 

(an issue unrelated to this proposed 

rulemaking). Many of the points raised 

by this commenter were unrelated to the 

proposed rulemaking, but the 

Department will address the above 

comments in whole. The commenter 

states that there is ‘‘insufficient public 

information available on fusion centers 

for the public to adequately evaluate the 

effect of the proposed information 

collection system’’ and ‘‘the expense, 

mission creep, and privacy effects of the 

proposed database.’’ In response to the 

issues raised by this commenter 

regarding fusion centers: (1) Information 

on fusion centers can be found on the 

Department’s Web page at www.dhs.gov 

and in the DHS/ALL/PIA–011 

Department of Homeland Security State, 

Local, and Regional Fusion Center 

Initiative Privacy Impact Assessment 

(PIA), December 11, 2008. This PIA 

provides a detailed discussion and 

privacy analysis on fusion centers and 

is available at www.dhs.gov/privacy; (2) 

the Department is and will continue to 

be responsive to FOIA requests. FOIA 

requests may be sent to the Chief 

Privacy Officer and Chief Freedom of 

Information Act Officer, Department of 

Homeland Security, 245 Murray Drive 

SW., Building 410, STOP–0655, 

Washington, DC 20528; and (3) the 

privacy protections of information 

collected by fusion centers is covered by 

privacy policies of the fusion center. 

This DHS/OPS–003 Operations 

Collection, Planning, Coordination, 

Reporting, Analysis, and Fusion System 

of Records is not the system of records 

exclusively covering information 

collections by fusion centers. This 

system of records would only cover 

information sent to the NOC by fusion 

centers, as well as other information 

collections beyond information sent to 

the NOC by fusion centers. Components 

of the Department receiving information 

from fusion centers use their own 

SORNs on a component-by-component 

basis and those SORNs can be found at 

www.dhs.gov/privacy. Each of the 

officially-designated and operational 

fusion centers have privacy policies that 

have been found by DHS to be ‘‘at least 


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33606 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 

as comprehensive’’ as the federal 

guidelines for protecting privacy within 

the Information Sharing Environment. 

Many of these policies are published on 

the National Fusion Center 

Association’s public Web site at http:// 

www.nfcausa.org. With respect to points 

4, 5, and 6, above these are not related 

to this rulemaking. This NPRM and 

SORN do not seek to establish a new 

information technology (IT) database or 

to collect new information; rather this 

NPRM and SORN provide transparency 

to OPS practices by pulling together a 

variety of already existing records for a 

single purpose under a specific 

authority. It is also worth clarifying that 

this NPRM and SORN do not 

exclusively cover fusion centers for the 

Department, although the National 

Operations Center (NOC) may receive 

information from a fusion center. Such 

information may be covered by this 

NPRM and SORN. Neither the NOC nor 

OPS is a ‘‘Fusion Center.’’ The purpose 

of this system of records and its 

authority are mandated by law (6 U.S.C. 

321d) to be ‘‘the principal operations 

center for the Department of Homeland 

Security.’’ Through the NOC, OPS 

provides real-time situational awareness 

and a common operating picture to the 

Department’s leadership and senior 

management. 

The second SORN comment was from 

a public interest research center that 

filed comments on the NPRM and SORN 

jointly in a comingled fashion and both 

are addressed in this section. The 

commenter raised concerns about: (1) 

Unusually broad purpose; (2) unusually 

broad authority and sharing; (3) 

contradictory statements about fusion 

centers as state and local entities (an 

issue unrelated to this proposed 

rulemaking); (4) taking Privacy Act 

exemptions where disclosure from the 

individual is withheld; (5) removing the 

use of the Privacy Act exemptions that 

address ‘‘relevant and necessary;’’ (6) 

the new fusion center PIA (an issue 

unrelated to this proposed rulemaking); 

and (7) the new suitable retention and 

disposal standards. Finally, the 

commenter recommends the creation of 

an independent oversight mechanism to 

prevent mission creep and uphold 

reporting requirements (an issue 

unrelated to this proposed rulemaking). 

In response to the comment on broad 

purpose, authority, and sharing of this 

system of records (1 and 2 above), the 

Department notes that the NOC is 

authorized by law to be ‘‘the principal 

operations center for the Department of 

Homeland Security,’’ (6 U.S.C. 321d) 

and this system of records allows the 

NOC to fulfill this mission. Through the 

NOC, OPS provides real-time situational 

awareness and a common operating 

picture to the Department leadership 

and senior management. The NOC 

operates 24 hours a day, seven days a 

week, and 365 days a year and 

coordinates information sharing to help 

deter, detect, and prevent terrorist acts 

and to manage domestic incidents. With 

regards to point 3, DHS is not being 

contradictory on the nature of fusion 

centers, which are state and local 

entities. This system of records may 

maintain information received from 

fusion centers, but only when that 

information is sent to the NOC by fusion 

centers. Additional information on 

fusion centers can be found on the 

Department’s Web page at www.dhs.gov 

and in the DHS/ALL/PIA–011 

Department of Homeland Security State, 

Local, and Regional Fusion Center 

Initiative PIA, December 11, 2008, 

which addresses privacy analysis on 

fusion centers and is available at 

www.dhs.gov/privacy. 

DHS’ decision to take exemptions to 

the Privacy Act (point 4) are appropriate 

given the law enforcement nature of the 

collection and the concern that 

providing access may give individuals 

the ability to contravene legitimate law 

enforcement activities. DHS also notes 

that as a matter of policy it reviews all 

Privacy Act requests to determine 

whether or not it can provide access to 

the information. With regards to the 

comments concerns regarding 

exemptions from the ‘‘relevant and 

necessary’’ standard (point 5), sufficient 

means do exist to verify the accuracy of 

the data and ensure that incorrect data 

is not used against an individual. 

System users are trained to verify 

information obtained from the NOC 

before including it in any analytical 

reports. Verification procedures include 

direct queries to the source databases 

from which the information was 

originally obtained, queries of 

commercial or other government 

databases when appropriate, and 

interviews with individuals or others 

who are in a position to confirm the 

data. These procedures mitigate the risk 

posed by inaccurate data in the system 

and raise the probability that such data 

will be identified and corrected before 

any action is taken against an 

individual. In addition, the source 

systems from which the NOC obtains 

information may, themselves, have 

mechanisms in place to ensure the 

accuracy of the data prior to the 

information being shared, as outlined in 

the ISE. 

The commenter expressed concern 

about the DHS/ALL/PIA–011 

Department of Homeland Security State, 

Local, and Regional Fusion Center 

Initiative PIA, December 11, 2008 (point 

6) and whether it was accurate given 

this system of records notice. As noted 

above, this system of records does not 

cover fusion centers, but may receive 

information from fusion centers if it is 

relevant to the purpose of this system of 

records and the mission of OPS. This 

PIA is currently under review for 

possible update as required by law. The 

commenter expressed concern about the 

records retention and disposal 

standards. DHS has an updated records 

schedule approved by NARA for records 

contained in this system of records, 

Steady state (normal day-to-day) records 

are kept for five years and destroyed. All 

records that become part of a Phase 2 or 

3 event are transferred to the National 

Archives five years after the event or 

case is closed for permanent retention in 

the National Archives (NARA schedule 

N1–563–11–010). 

Finally, the commenter recommended 

that the Department establish additional 

independent oversight for fusion centers 

beyond what currently exists at the 

Department. This is outside the purview 

of this rulemaking. 

The third and final comment is from 

a private individual. This individual 

wrote to the Department to explain the 

circumstances related to this 

individual’s arrest by a state law 

enforcement authority resulting in what 

this individual believes to be faulty 

information received from a state 

intelligence center. The individual goes 

on to detail issues related to the state’s 

fusion center as it applied to this 

individual’s case. The individual 

requested no specific action or 

amendment related to the proposed 

rulemaking and the individual’s 

comments were unrelated to the 

proposed rulemaking. 

After careful consideration of public 

comments, the Department will 

implement the rulemaking as proposed, 

additionally the Department will not 

update the Systems of Records Notice. 

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. 


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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 33607 

■ 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 OPS–003 Operations 

Collection, Planning, Coordination, 

Reporting, Analysis, and Fusion System of 

Records consists of electronic and paper 

records and will be used by DHS and its 

components. The DHS OPS–003 Operations 

Collection, Planning, Coordination, 

Reporting, Analysis, and Fusion System of 

Records is a repository of information held 

by DHS to serve its several and varied 

missions and functions. 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; 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 OPS–003 Operations Collection, 

Planning, Coordination, Reporting, Analysis, 

and Fusion 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. This 

system is exempted from the following 

provisions of the Privacy Act pursuant to 5 

U.S.C. 552a(k)(1), (k)(2), (k)(3): 5 U.S.C. 

552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), 

(e)(4)(I); and (f). 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 and 

Amendment) 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. 

Dated: June 1, 2012. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2012–13778 Filed 6–6–12; 8:45 am] 

BILLING CODE 9110–9A–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Part 11 

[Docket No. APHIS–2011–0030] 

RIN 0579–AD43 

Horse Protection Act; Requiring Horse 

Industry Organizations To Assess and 

Enforce Minimum Penalties for 

Violations 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending the horse 

protection regulations to require horse 

industry organizations or associations 

that license Designated Qualified 

Persons to assess and enforce minimum 

penalties for violations of the Horse 

Protection Act (the Act). The regulations 

currently provide that such penalties 

will be set either by the horse industry 

organization or association or by the 

U.S. Department of Agriculture. This 

action will strengthen our enforcement 

of the Act by ensuring that minimum 

penalties are assessed and enforced 

consistently by all horse industry 

organizations and associations that are 

certified under the regulations by the 

U.S. Department of Agriculture. 

DATES: Effective Date: July 9, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Dr. Rachel Cezar, Horse Protection 

National Coordinator, Animal Care, 

APHIS, 4700 River Road, Unit 84, 

Riverdale, MD 20737; (301) 851–3746. 

SUPPLEMENTARY INFORMATION: 

Background 

In 1970, Congress passed the Horse 

Protection Act (15 U.S.C. 1821–1831), 

referred to below as the Act or the HPA, 

to eliminate the practice of soring by 

prohibiting the showing or selling of 

sored horses. The regulations in 9 CFR 

part 11, referred to below as the 

regulations, implement the Act. 

In the Act, Congress found and 

declared that the soring of horses is 

cruel and inhumane. The Act states that 

the term ‘‘sore’’ when used to describe 

a horse means that the horse suffers, or 

can reasonably expect to suffer, physical 

pain or distress, inflammation, or 

lameness when walking, trotting, or 

otherwise moving as a result of: 

• An irritating or blistering agent 

applied, internally or externally, by a 

person to any limb of a horse, 

• Any burn, cut, or laceration 

inflicted by a person on any limb of a 

horse, 

• Any tack, nail, screw, or chemical 

agent injected by a person into or used 

by a person on any limb of a horse, or 

• Any other substance or device used 

by a person on any limb of a horse or 

a person has engaged in a practice 

involving a horse. 

(The Act excludes therapeutic treatment 

by or under the supervision of a 

licensed veterinarian from the definition 

of ‘‘sore’’ when used to described a 

horse.) 

The practice of soring horses is aimed 

at producing an exaggerated show gait 

for competition. Typically, the forelimbs 

of the horse are sored, which causes the 

horse to place its hindlimbs further 

forward than normal under the horse’s 

body, resulting in its hindlimbs carrying 

more of its body weight. When the sored 

forelimbs come into contact with the 

ground, causing pain, the horse quickly 

extends its forelimbs and snaps them 

forward. This gait is known as ‘‘the big 

lick.’’ 

Soring is primarily used in the 

training of Tennessee Walking Horses, 


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