[Title 6 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2021 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 6
Domestic Security
Revised as of January 1, 2021
Containing a codification of documents of general
applicability and future effect
As of January 1, 2021
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 6:
Chapter I--Department of Homeland Security, Office
of the Secretary 3
Chapter X--Privacy and Civil Liberties Oversight
Board 335
Finding Aids:
Table of CFR Titles and Chapters........................ 357
Alphabetical List of Agencies Appearing in the CFR...... 377
List of CFR Sections Affected........................... 387
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 6 CFR 3.1 refers to
title 6, part 3, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 2021), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
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instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
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or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
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20740-6001 or e-mail [email protected].
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Connect to NARA's website at www.archives.gov/federal-register.
The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2021
[[Page ix]]
THIS TITLE
Title 6--Domestic Security is composed of one volume. This volume
contains chapter I--Department of Homeland Security, Office of the
Secretary and chapter X--Privacy and Civil Liberties Oversight Board.
The contents of this volume represent all current regulations codified
under this title of the CFR as of January 1, 2021.
For this volume, Gabrielle E. Burns was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 6--DOMESTIC SECURITY
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Part
chapter i--Department of Homeland Security, Office of the
Secretary................................................. 3
chapter x--Privacy and Civil Liberties Oversight Board...... 1000
[[Page 3]]
CHAPTER I--DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY
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Part Page
1-2
[Reserved]
3 Petitions for rulemaking.................... 5
4
[Reserved]
5 Disclosure of records and information....... 6
7 Classified national security information.... 123
9 Restrictions upon lobbying.................. 134
11 Claims...................................... 144
13 Program fraud civil remedies................ 150
15 Enforcement of nondiscrimination on the
basis of disability in programs or
activities conducted by the Department
of Homeland Security.................... 166
17 Nondiscrimination on the basis of sex in
education programs or activities
receiving Federal financial assistance.. 172
19 Nondiscrimination in matters pertaining to
faith-based organizations............... 189
21 Nondiscrimination on the basis of race,
color, or national origin in programs or
activities receiving Federal financial
assistance from the Department of
Homeland Security....................... 198
25 Regulations to support anti-terrorism by
fostering effective technologies........ 208
27 Chemical facility anti-terrorism standards.. 223
29 Protected critical infrastructure
information............................. 259
37 REAL ID driver's licenses and identification
cards................................... 269
46 Protection of human subjects................ 284
115 Sexual abuse and assault prevention
standards............................... 302
116-199
[Reserved]
[[Page 5]]
PARTS 1 2 [RESERVED]
PART 3_PETITIONS FOR RULEMAKING--Table of Contents
Sec.
3.1 Definitions.
3.3 Applicability.
3.5 Format and mailing instructions.
3.7 Content of a rulemaking petition.
3.9 Responding to a rulemaking petition.
Authority: 5 U.S.C. 301, 553(e); 6 U.S.C. 112.
Source: 81 FR 47286, July 21, 2016, unless otherwise noted.
Sec. 3.1 Definitions.
As used in this part:
Component means each separate organizational entity within the U.S.
Department of Homeland Security (DHS) that reports directly to the
Office of the Secretary.
DHS means the U.S. Department of Homeland Security, including its
components.
Rulemaking petition means a petition to issue, amend, or repeal a
rule, as described at 5 U.S.C. 553(e).
Sec. 3.3 Applicability.
(a) General requirement. Except as provided in paragraph (b) of this
section, this part prescribes the exclusive process for interested
persons to submit a rulemaking petition on a matter within DHS's
jurisdiction.
(b) Exceptions--(1) U.S. Coast Guard. This part does not apply to
any petition for rulemaking directed to the U.S. Coast Guard. Such
petitions are governed by 33 CFR 1.05-20.
(2) Federal Emergency Management Agency. This part does not apply to
any petition for rulemaking directed to the Federal Emergency Management
Agency. Such petitions are governed by 44 CFR 1.18.
Sec. 3.5 Format and mailing instructions.
(a) Format. A rulemaking petition must include in a prominent
location--
(1) The words ``Petition for Rulemaking'' or ``Rulemaking
Petition;'' and
(2) The petitioner's name and a mailing address, in addition to any
other contact information (such as telephone number or email) that the
petitioner chooses to include.
(b) Mailing instructions--(1) General mailing address. Any
interested person may submit a rulemaking petition by sending it to the
following address: U.S. Department of Homeland Security, Office of the
General Counsel, Mail Stop 0485, Attn: Regulatory Affairs Law Division,
245 Murray Lane SW., Washington, DC 20528-0485.
(2) Transportation Security Administration mailing address. Any
interested person may submit a rulemaking petition regarding a
Transportation Security Administration program or authority directly to
the Transportation Security Administration by sending it to the
following address: Transportation Security Administration, Office of the
Chief Counsel, TSA-2, Attn: Regulations and Security Standards Division,
601 South 12th Street, Arlington, VA 20598-6002.
(3) DHS does not accept rulemaking petitions delivered by courier.
Sec. 3.7 Content of a rulemaking petition.
(a) DHS will be better positioned to understand and respond to a
rulemaking petition if the petition describes with reasonable
particularity the rule that the petitioner is asking DHS to issue,
amend, or repeal, and the factual and legal basis for the petition. For
instance, DHS would be better able to understand and respond to a
petition that includes--
(1) A description of the specific problem that the requested
rulemaking would address;
(2) An explanation of how the requested rulemaking would resolve
this problem;
(3) Data and other information that would be relevant to DHS's
consideration of the petition;
(4) A description of the substance of the requested rulemaking; and
(5) Citation to the pertinent existing regulations provisions (if
any) and pertinent DHS legal authority for taking action.
(b) [Reserved]
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Sec. 3.9 Responding to a rulemaking petition.
(a) Public procedure. DHS may, in its discretion, seek broader
public comment on a rulemaking petition prior to its disposition under
this section.
(b) Disposition. DHS may respond to the petition by letter or by
Federal Register publication. DHS may grant or deny the petition, in
whole or in part.
(c) Grounds for denial. DHS may deny the petition for any reason
consistent with law, including, but not limited to, the following
reasons: The petition has no merit, the petition is contrary to
pertinent statutory authority, the petition is not supported by the
relevant information or data, or the petition cannot be addressed
because of other priorities or resource constraints.
(d) Summary disposition. DHS may, by written letter, deny or
summarily dismiss without prejudice any petition that is moot,
premature, repetitive, or frivolous, or that plainly does not warrant
further consideration.
PART 4 [RESERVED]
PART 5_DISCLOSURE OF RECORDS AND INFORMATION--Table of Contents
Subpart A_Procedures for Disclosure of Records Under the Freedom of
Information Act
Sec.
5.1 General provisions.
5.2 Proactive disclosures of DHS records.
5.3 Requirements for making requests.
5.4 Responsibility for responding to requests.
5.5 Timing of responses to requests.
5.6 Responses to requests.
5.7 Confidential commercial information.
5.8 Administrative appeals.
5.9 Preservation of records.
5.10 FOIA requests for information contained in a Privacy Act system of
records.
5.11 Fees.
5.12 Confidential commercial information; CBP procedures.
5.13 Other rights and services.
Appendix I to Subpart A of Part 5--FOIA Contact Information
Subpart B_Privacy Act
5.20 General provisions.
5.21 Requests for access to records.
5.22 Responsibility for responding to requests for access to records.
5.23 Responses to requests for access to records.
5.24 Classified information.
5.25 Appeals.
5.26 Requests for amendment or correction of records.
5.27 Requests for an accounting of record disclosures.
5.28 Preservation of records.
5.29 Fees.
5.30 Notice of court-ordered and emergency disclosures.
5.31 Security of systems of records.
5.32 Contracts for the operation of record systems.
5.33 Use and collection of social security numbers.
5.34 Standards of conduct for administration of the Privacy Act.
5.35 Sanctions and penalties.
5.36 Other rights and services.
Subpart C_Disclosure of Information in Litigation
5.41 Purpose and scope; definitions.
5.42 Service of summonses and complaints.
5.43 Service of subpoenas, court orders, and other demands or requests
for official information or action.
5.44 Testimony and production of documents prohibited unless approved by
appropriate Department officials.
5.45 Procedure when testimony or production of documents is sought;
general.
5.46 Procedure when response to demand is required prior to receiving
instructions.
5.47 Procedure in the event of an adverse ruling.
5.48 Considerations in determining whether the Department will comply
with a demand or request.
5.49 Prohibition on providing expert or opinion testimony.
Appendix A to Subpart C of Part 5--Service of Process of Summonses,
Complaints, and Subpoenas
Appendix A to Part 5--FOIA/Privacy Act Offices of the Department of
Homeland Security
Appendix B to Part 5 [Reserved]
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy Act
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.
Source: 68 FR 4056, Jan. 27, 2003, unless otherwise noted.
[[Page 7]]
Subpart A_Procedures for Disclosure of Records Under the Freedom of
Information Act
Source: 81 FR 83632, Nov. 22, 2016, unless otherwise noted.
Sec. 5.1 General provisions.
(a)(1) This subpart contains the rules that the Department of
Homeland Security follows in processing requests for records under the
Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended.
(2) The rules in this subpart should be read in conjunction with the
text of the FOIA and the Uniform Freedom of Information Fee Schedule and
Guidelines published by the Office of Management and Budget at 52 FR
10012 (March 27, 1987) (hereinafter ``OMB Guidelines''). Additionally,
DHS has additional policies and procedures relevant to the FOIA process.
These resources are available at http://www.dhs.gov/freedom-information-
act-foia. Requests made by individuals for records about themselves
under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under
subpart B of part 5 as well as under this subpart.
(b) As referenced in this subpart, component means the FOIA office
of each separate organizational entity within DHS that reports directly
to the Office of the Secretary.
(c) DHS has a decentralized system for processing requests, with
each component handling requests for its records.
(d) Unofficial release of DHS information. The disclosure of exempt
records, without authorization by the appropriate DHS official, is not
an official release of information; accordingly, it is not a FOIA
release. Such a release does not waive the authority of the Department
of Homeland Security to assert FOIA exemptions to withhold the same
records in response to a FOIA request. In addition, while the authority
may exist to disclose records to individuals in their official capacity,
the provisions of this part apply if the same individual seeks the
records in a private or personal capacity.
Sec. 5.2 Proactive disclosure of DHS records.
Records that are required by the FOIA to be made available for
public inspection in an electronic format are accessible on DHS's Web
site, http://www.dhs.gov/freedom-information-act-foia-and-privacy-act.
Each component is responsible for determining which of its records are
required to be made publicly available, as well as identifying
additional records of interest to the public that are appropriate for
public disclosure, and for posting and indexing such records. Each
component shall ensure that posted records and indices are updated on an
ongoing basis. Each component has a FOIA Public Liaison who can assist
individuals in locating records particular to a component. A list of
DHS's FOIA Public Liaisons is available at http://www.dhs.gov/foia-
contact-information and in appendix I to this subpart. Requesters who do
not have access to the internet may contact the Public Liaison for the
component from which they seek records for assistance with publicly
available records.
Sec. 5.3 Requirements for making requests.
(a) General information. (1) DHS has a decentralized system for
responding to FOIA requests, with each component designating a FOIA
office to process records from that component. All components have the
capability to receive requests electronically, either through email or a
web portal. To make a request for DHS records, a requester should write
directly to the FOIA office of the component that maintains the records
being sought. A request will receive the quickest possible response if
it is addressed to the FOIA office of the component that maintains the
records sought. DHS's FOIA Reference Guide contains or refers the reader
to descriptions of the functions of each component and provides other
information that is helpful in determining where to make a request. Each
component's FOIA office and any additional requirements for submitting a
request to a given component are listed in appendix I of this subpart.
These references can all be used by requesters to
[[Page 8]]
determine where to send their requests within DHS.
(2) A requester may also send his or her request to the Privacy
Office, U.S. Department of Homeland Security, 245 Murray Lane SW STOP-
0655, or via the internet at http://www.dhs.gov/dhs-foia-request-
submission-form, or via fax to (202) 343-4011. The Privacy Office will
forward the request to the component(s) that it determines to be most
likely to maintain the records that are sought.
(3) A requester who is making a request for records about him or
herself must comply with the verification of identity provision set
forth in subpart B of this part.
(4) Where a request for records pertains to a third party, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual, in compliance with the
verification of identity provision set forth in subpart B of this part,
or a declaration made in compliance with the requirements set forth in
28 U.S.C. 1746 by that individual, authorizing disclosure of the records
to the requester, or by submitting proof that the individual is deceased
(e.g., a copy of a death certificate or an obituary). As an exercise of
its administrative discretion, each component can require a requester to
supply additional information if necessary in order to verify that a
particular individual has consented to disclosure.
(b) Description of records sought. Requesters must describe the
records sought in sufficient detail to enable DHS personnel to locate
them with a reasonable amount of effort. A reasonable description
contains sufficient information to permit an organized, non-random
search for the record based on the component's filing arrangements and
existing retrieval systems. To the extent possible, requesters should
include specific information that may assist a component in identifying
the requested records, such as the date, title or name, author,
recipient, subject matter of the record, case number, file designation,
or reference number. Requesters should refer to appendix I of this
subpart for additional component-specific requirements. In general,
requesters should include as much detail as possible about the specific
records or the types of records that they are seeking. Before submitting
their requests, requesters may contact the component's FOIA Officer or
FOIA public liaison to discuss the records they are seeking and to
receive assistance in describing the records. If after receiving a
request, a component determines that it does not reasonably describe the
records sought, the component should inform the requester what
additional information is needed or why the request is otherwise
insufficient. Requesters who are attempting to reformulate or modify
such a request may discuss their request with the component's designated
FOIA Officer, its FOIA Public Liaison, or a representative of the DHS
Privacy Office, each of whom is available to assist the requester in
reasonably describing the records sought.
(c) If a request does not adequately describe the records sought,
DHS may at its discretion either administratively close the request or
seek additional information from the requester. Requests for
clarification or more information will be made in writing (either via
U.S. mail or electronic mail whenever possible). Requesters may respond
by U.S. Mail or by electronic mail regardless of the method used by DHS
to transmit the request for additional information. In order to be
considered timely, responses to requests for additional information must
be postmarked or received by electronic mail within 30 working days of
the postmark date or date of the electronic mail request for additional
information or received by electronic mail by 11:59:59 p.m. ET on the
30th working day. If the requester does not respond to a request for
additional information within thirty (30) working days, the request may
be administratively closed at DHS's discretion. This administrative
closure does not prejudice the requester's ability to submit a new
request for further consideration with additional information.
Sec. 5.4 Responsibility for responding to requests.
(a) In general. Except in the instances described in paragraphs (c)
and (d) of this section, the component that first
[[Page 9]]
receives a request for a record and maintains that record is the
component responsible for responding to the request. In determining
which records are responsive to a request, a component ordinarily will
include only records in its possession as of the date that it begins its
search. If any other date is used, the component shall inform the
requester of that date. A record that is excluded from the requirements
of the FOIA pursuant to 5 U.S.C. 552(c), shall not be considered
responsive to a request.
(b) Authority to grant or deny requests. The head of a component, or
designee, is authorized to grant or to deny any requests for records
that are maintained by that component.
(c) Re-routing of misdirected requests. Where a component's FOIA
office determines that a request was misdirected within DHS, the
receiving component's FOIA office shall route the request to the FOIA
office of the proper component(s).
(d) Consultations, coordination and referrals. When a component
determines that it maintains responsive records that either originated
with another component or agency, or which contains information provided
by, or of substantial interest to, another component or agency, then it
shall proceed in accordance with either paragraph (d)(1), (2), or (3) of
this section, as appropriate:
(1) The component may respond to the request, after consulting with
the component or the agency that originated or has a substantial
interest in the records involved.
(2) The component may respond to the request after coordinating with
the other components or agencies that originated the record. This may
include situations where the standard referral procedure is not
appropriate where disclosure of the identity of the component or agency
to which the referral would be made could harm an interest protected by
an applicable exemption, such as the exemptions that protect personal
privacy or national security interests. For example, if a non-law
enforcement component responding to a request for records on a living
third party locates records within its files originating with a law
enforcement agency, and if the existence of that law enforcement
interest in the third party was not publicly known, then to disclose
that law enforcement interest could cause an unwarranted invasion of the
personal privacy of the third party. Similarly, if a component locates
material within its files originating with an Intelligence Community
agency, and the involvement of that agency in the matter is classified
and not publicly acknowledged, then to disclose or give attribution to
the involvement of that Intelligence Community agency could cause
national security harms. In such instances, in order to avoid harm to an
interest protected by an applicable exemption, the component that
received the request should coordinate with the originating component or
agency to seek its views on the disclosability of the record. The
release determination for the record that is the subject of the
coordination should then be conveyed to the requester by the component
that originally received the request.
(3) The component may refer the responsibility for responding to the
request or portion of the request to the component or agency best able
to determine whether to disclose the relevant records, or to the agency
that created or initially acquired the record as long as that agency is
subject to the FOIA. Ordinarily, the component or agency that created or
initially acquired the record will be presumed to be best able to make
the disclosure determination. The referring component shall document the
referral and maintain a copy of the records that it refers.
(e) Classified information. On receipt of any request involving
classified information, the component shall determine whether
information is currently and properly classified and take appropriate
action to ensure compliance with 6 CFR part 7. Whenever a request
involves a record containing information that has been classified or may
be appropriate for classification by another component or agency under
any applicable executive order concerning the classification of records,
the receiving component shall refer the responsibility for responding to
the request regarding that information to
[[Page 10]]
the component or agency that classified the information, or should
consider the information for classification. Whenever a component's
record contains information classified by another component or agency,
the component shall coordinate with or refer the responsibility for
responding to that portion of the request to the component or agency
that classified the underlying information.
(f) Notice of referral. Whenever a component refers any part of the
responsibility for responding to a request to another component or
agency, it will notify the requester of the referral and inform the
requester of the name of each component or agency to which the records
were referred, unless disclosure of the identity of the component or
agency would harm an interest protected by an applicable exemption, in
which case the component should coordinate with the other component or
agency, rather than refer the records.
(g) Timing of responses to consultations and referrals. All
consultations and referrals received by DHS will be handled according to
the date that the FOIA request initially was received by the first
component or agency, not any later date.
(h) Agreements regarding consultations and referrals. Components may
establish agreements with other components or agencies to eliminate the
need for consultations or referrals with respect to particular types of
records.
(i) Electronic records and searches--(1) Significant interference.
The FOIA allows components to not conduct a search for responsive
documents if the search would cause significant interference with the
operation of the component's automated information system.
(2) Business as usual approach. A ``business as usual'' approach
exists when the component has the capability to process a FOIA request
for electronic records without a significant expenditure of monetary or
personnel resources. Components are not required to conduct a search
that does not meet this business as usual criterion.
(i) Creating computer programs or purchasing additional hardware to
extract email that has been archived for emergency retrieval usually are
not considered business as usual if extensive monetary or personnel
resources are needed to complete the project.
(ii) Creating a computer program that produces specific requested
fields or records contained within a well-defined database structure
usually is considered business as usual. The time to create this program
is considered as programmer or operator search time for fee assessment
purposes and the FOIA requester may be assessed fees in accordance with
Sec. 5.11(c)(1)(iii). However, creating a computer program to merge
files with disparate data formats and extract specific elements from the
resultant file is not considered business as usual, but a special
service, for which additional fees may be imposed as specified in Sec.
5.11. Components are not required to perform special services and
creation of a computer program for a fee is up to the discretion of the
component and is dependent on component resources and expertise.
(3) Data links. Components are not required to expend DHS funds to
establish data links that provide real time or near-real-time data to a
FOIA requester.
Sec. 5.5 Timing of responses to requests.
(a) In general. Components ordinarily will respond to requests
according to their order of receipt. Appendix I to this subpart contains
the list of components that are designated to accept requests. In
instances involving misdirected requests that are re-routed pursuant to
Sec. 5.4(c), the response time will commence on the date that the
request is received by the proper component, but in any event not later
than ten working days after the request is first received by any DHS
component designated in appendix I of this subpart.
(b) Multitrack processing. All components must designate a specific
track for requests that are granted expedited processing, in accordance
with the standards set forth in paragraph (e) of this section. A
component may also designate additional processing tracks that
distinguish between simple and more complex requests based on the
estimated amount of work or time needed to process the request. Among
the factors a component may consider are
[[Page 11]]
the number of pages involved in processing the request or the need for
consultations or referrals. Components shall advise requesters of the
track into which their request falls, and when appropriate, shall offer
requesters an opportunity to narrow their request so that the request
can be placed in a different processing track.
(c) Unusual circumstances. Whenever the statutory time limits for
processing a request cannot be met because of ``unusual circumstances,''
as defined in the FOIA, and the component extends the time limits on
that basis, the component shall, before expiration of the twenty-day
period to respond, notify the requester in writing of the unusual
circumstances involved and of the date by which processing of the
request can be expected to be completed. Where the extension exceeds ten
working days, the component shall, as described by the FOIA, provide the
requester with an opportunity to modify the request or agree to an
alternative time period for processing. The component shall make
available its designated FOIA Officer and its FOIA Public Liaison for
this purpose. The component shall also alert requesters to the
availability of the Office of Government Information Services (OGIS) to
provide dispute resolution services.
(d) Aggregating requests. For the purposes of satisfying unusual
circumstances under the FOIA, components may aggregate requests in cases
where it reasonably appears that multiple requests, submitted either by
a requester or by a group of requesters acting in concert, constitute a
single request that would otherwise involve unusual circumstances.
Components will not aggregate multiple requests that involve unrelated
matters.
(e) Expedited processing. (1) Requests and appeals will be processed
on an expedited basis whenever the component determines that they
involve:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person who is primarily
engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the government's integrity which
affect public confidence.
(2) A request for expedited processing may be made at any time.
Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section
must be submitted to the component that maintains the records requested.
When making a request for expedited processing of an administrative
appeal, the request should be submitted to the DHS Office of General
Counsel or the component Appeals Officer. Address information is
available at the DHS Web site, http://www.dhs.gov/freedom-information-
act-foia, or by contacting the component FOIA officers via the
information listed in appendix I. Requests for expedited processing that
are based on paragraph (e)(1)(iv) of this section must be submitted to
the Senior Director of FOIA Operations, the Privacy Office, U.S.
Department of Homeland Security, 245 Murray Lane SW STOP-0655,
Washington, DC 20598-0655. A component that receives a misdirected
request for expedited processing under the standard set forth in
paragraph (e)(1)(iv) of this section shall forward it immediately to the
DHS Senior Director of FOIA Operations, the Privacy Office, for
determination. The time period for making the determination on the
request for expedited processing under paragraph (e)(1)(iv) of this
section shall commence on the date that the Privacy Office receives the
request, provided that it is routed within ten working days, but in no
event shall the time period for making a determination on the request
commence any later than the eleventh working day after the request is
received by any component designated in appendix I of this subpart.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. For example,
under paragraph (e)(1)(ii) of this section, a requester who is not a
full-time member of the news media
[[Page 12]]
must establish that he or she is a person who primarily engages in
information dissemination, though it need not be his or her sole
occupation. Such a requester also must establish a particular urgency to
inform the public about the government activity involved in the
request--one that extends beyond the public's right to know about
government activity generally. The existence of numerous articles
published on a given subject can be helpful to establishing the
requirement that there be an ``urgency to inform'' the public on the
topic. As a matter of administrative discretion, a component may waive
the formal certification requirement.
(4) A component shall notify the requester within ten calendar days
of the receipt of a request for expedited processing of its decision
whether to grant or deny expedited processing. If expedited processing
is granted, the request shall be given priority, placed in the
processing track for expedited requests, and shall be processed as soon
as practicable. If a request for expedited processing is denied, any
appeal of that decision shall be acted on expeditiously.
Sec. 5.6 Responses to requests.
(a) In general. Components should, to the extent practicable,
communicate with requesters having access to the Internet using
electronic means, such as email or web portal.
(b) Acknowledgments of requests. A component shall acknowledge the
request and assign it an individualized tracking number if it will take
longer than ten working days to process. Components shall include in the
acknowledgment a brief description of the records sought to allow
requesters to more easily keep track of their requests.
(c) Grants of requests. Ordinarily, a component shall have twenty
(20) working days from when a request is received to determine whether
to grant or deny the request unless there are unusual or exceptional
circumstances. Once a component makes a determination to grant a request
in full or in part, it shall notify the requester in writing. The
component also shall inform the requester of any fees charged under
Sec. 5.11 and shall disclose the requested records to the requester
promptly upon payment of any applicable fees. The component shall inform
the requester of the availability of its FOIA Public Liaison to offer
assistance.
(d) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, include decisions that the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject to
the FOIA; the requested record does not exist, cannot be located, or has
been destroyed; or the requested record is not readily reproducible in
the form or format sought by the requester. Adverse determinations also
include denials involving fees, including requester categories or fee
waiver matters, or denials of requests for expedited processing.
(e) Content of denial. The denial shall be signed by the head of the
component, or designee, and shall include:
(1) The name and title or position of the person responsible for the
denial;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the component in denying the request;
(3) An estimate of the volume of any records or information
withheld, for example, by providing the number of pages or some other
reasonable form of estimation. This estimation is not required if the
volume is otherwise indicated by deletions marked on records that are
disclosed in part, or if providing an estimate would harm an interest
protected by an applicable exemption; and
(4) A statement that the denial may be appealed under Sec. 5.8(a),
and a description of the requirements set forth therein.
(5) A statement notifying the requester of the assistance available
from the agency's FOIA Public Liaison and the dispute resolution
services offered by OGIS.
(f) Markings on released documents. Markings on released documents
must
[[Page 13]]
be clearly visible to the requester. Records disclosed in part shall be
marked to show the amount of information deleted and the exemption under
which the deletion was made unless doing so would harm an interest
protected by an applicable exemption. The location of the information
deleted also shall be indicated on the record, if technically feasible.
(g) Use of record exclusions. (1) In the event that a component
identifies records that may be subject to exclusion from the
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the head of the
FOIA office of that component must confer with Department of Justice's
Office of Information Policy (OIP) to obtain approval to apply the
exclusion.
(2) Any component invoking an exclusion shall maintain an
administrative record of the process of invocation and approval of the
exclusion by OIP.
Sec. 5.7 Confidential commercial information.
(a) Definitions--(1) Confidential commercial information means
commercial or financial information obtained by DHS from a submitter
that may be protected from disclosure under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from whom DHS obtains
confidential commercial information, directly or indirectly.
(b) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, either at the time of submission or
within a reasonable time thereafter, any portion of its submission that
it considers to be protected from disclosure under Exemption 4. These
designations will expire ten years after the date of the submission
unless the submitter requests and provides justification for a longer
designation period.
(c) When notice to submitters is required. (1) A component shall
promptly provide written notice to a submitter whenever records
containing such information are requested under the FOIA if, after
reviewing the request, the responsive records, and any appeal by the
requester, the component determines that it may be required to disclose
the records, provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The component has a reason to believe that the requested
information may be protected from disclosure under Exemption 4.
(2) The notice shall either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information. In cases involving a voluminous
number of submitters, notice may be made by posting or publishing the
notice in a place or manner reasonably likely to accomplish it.
(d) Exceptions to submitter notice requirements. The notice
requirements of paragraphs (c) and (g) of this section shall not apply
if:
(1) The component determines that the information is exempt under
the FOIA;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous, except that, in such a case,
the component shall give the submitter written notice of any final
decision to disclose the information and must provide that notice within
a reasonable number of days prior to a specified disclosure date.
(e) Opportunity to object to disclosure. (1) A component will
specify a reasonable time period, but no fewer than 10 working days,
within which the submitter must respond to the notice referenced above.
If a submitter has any objections to disclosure, it should provide the
component a detailed written statement that specifies all grounds for
withholding the particular information under any exemption of the FOIA.
In order to rely on Exemption 4 as basis for nondisclosure, the
submitter must
[[Page 14]]
explain why the information constitutes a trade secret, or commercial or
financial information that is privileged or confidential.
(2) A submitter who fails to respond within the time period
specified in the notice shall be considered to have no objection to
disclosure of the information. Information received by the component
after the date of any disclosure decision will not be considered by the
component. Any information provided by a submitter under this subpart
may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. A component shall consider a submitter's
objections and specific grounds for nondisclosure in deciding whether to
disclose the requested information.
(g) Notice of intent to disclose. Whenever a component decides to
disclose information over the objection of a submitter, the component
shall provide the submitter written notice, which shall include:
(1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice, but no fewer than 10 working days.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial information,
the component shall promptly notify the submitter.
(i) Requester notification. The component shall notify a requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
(j) Scope. This section shall not apply to any confidential
commercial information provided to CBP by a business submitter. Section
5.12 applies to such information. Section 5.12 also defines
``confidential commercial information'' as used in this paragraph.
Sec. 5.8 Administrative appeals.
(a) Requirements for filing an appeal. (1) A requester may appeal
adverse determinations denying his or her request or any part of the
request to the appropriate Appeals Officer. A requester may also appeal
if he or she questions the adequacy of the component's search for
responsive records, or believes the component either misinterpreted the
request or did not address all aspects of the request (i.e., it issued
an incomplete response), or if the requester believes there is a
procedural deficiency (e.g., fees were improperly calculated). For the
address of the appropriate component Appeals Officer, contact the
applicable component FOIA liaison using the information in appendix I to
this subpart, visit www.dhs.gov/foia, or call 1-866-431-0486. An appeal
must be in writing, and to be considered timely it must be postmarked
or, in the case of electronic submissions, transmitted to the Appeals
Officer within 90 working days after the date of the component's
response. An electronically filed appeal will be considered timely if
transmitted to the Appeals Officer by 11:59:59 p.m. ET or EDT on the
90th working day. The appeal should clearly identify the component
determination (including the assigned request number if the requester
knows it) that is being appealed and should contain the reasons the
requester believes the determination was erroneous. To facilitate
handling, the requester should mark both the letter and the envelope, or
the transmittal line in the case of electronic transmissions ``Freedom
of Information Act Appeal.''
(2) An adverse determination by the component appeals officer will
be the final action of DHS.
(b) Adjudication of appeals. (1) The DHS Office of the General
Counsel or its designee (e.g., component Appeals Officers) is the
authorized appeals authority for DHS;
(2) On receipt of any appeal involving classified information, the
Appeals Officer shall consult with the Chief Security Officer, and take
appropriate action to ensure compliance with 6 CFR part 7;
[[Page 15]]
(3) If the appeal becomes the subject of a lawsuit, the Appeals
Officer is not required to act further on the appeal.
(c) Appeal decisions. The decision on the appeal will be made in
writing. A decision that upholds a component's determination will
contain a statement that identifies the reasons for the affirmance,
including any FOIA exemptions applied. The decision will provide the
requester with notification of the statutory right to file a lawsuit and
will inform the requester of the mediation services offered by the
Office of Government Information Services, of the National Archives and
Records Administration, as a non-exclusive alternative to litigation.
Should the requester elect to mediate any dispute related to the FOIA
request with the Office of Government Information Services, DHS and its
components will participate in the mediation process in good faith. If
the adverse decision is reversed or modified on appeal, in whole or in
part, the requester will be notified in a written decision and the
request will be thereafter be further processed in accordance with that
appeal decision.
(d) Time limit for issuing appeal decision. The statutory time limit
for responding to appeals is generally 20 working days after receipt.
However, the Appeals Officer may extend the time limit for responding to
an appeal provided the circumstances set forth in 5 U.S.C.
552(a)(6)(B)(i) are met.
(e) Appeal necessary before seeking court review. If a requester
wishes to seek court review of a component's adverse determination on a
matter appealable under paragraph (a)(1) of this section, the requester
must generally first appeal it under this subpart. However, a requester
is not required to first file an appeal of an adverse determination of a
request for expedited processing prior to seeking court review.
Sec. 5.9 Preservation of records.
Each component shall preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized
pursuant to title 44 of the United States Code or the General Records
Schedule 4.2 and/or 14 of the National Archives and Records
Administration. Records will not be disposed of or destroyed while they
are the subject of a pending request, appeal, or lawsuit under the FOIA.
Sec. 5.10 FOIA requests for information contained in a Privacy Act
system of records.
(a) Information subject to Privacy Act. (1) If a requester submits a
FOIA request for information about him or herself that is contained in a
Privacy Act system of records applicable to the requester (i.e., the
information contained in the system of records is retrieved by the
component using the requester's name or other personal identifier, and
the information pertains to an individual covered by the Privacy Act)
the request will be processed under both the FOIA and the Privacy Act.
(2) If the information the requester is seeking is not subject to
the Privacy Act (e.g., the information is filed under another subject,
such as an organization, activity, event, or an investigation not
retrievable by the requester's name or personal identifier), the
request, if otherwise properly made, will be treated only as a FOIA
request. In addition, if the information is covered by the Privacy Act
and the requester does not provide proper verification of the
requester's identity, the request, if otherwise properly made, will be
processed only under the FOIA.
(b) When both Privacy Act and FOIA exemptions apply. Only if both a
Privacy Act exemption and a FOIA exemption apply can DHS withhold
information from a requester if the information sought by the requester
is about him or herself and is contained in a Privacy Act system of
records applicable to the requester.
(c) Conditions for release of Privacy Act information to third
parties in response to a FOIA request. If a requester submits a FOIA
request for Privacy Act information about another individual, the
information will not be disclosed without that person's prior written
consent that provides the same verification information that the person
would have been required to submit for information about him or herself,
unless--
[[Page 16]]
(1) The information is required to be released under the FOIA, as
provided by 5 U.S.C. 552a (b)(2); or
(2) In most circumstances, if the individual is deceased.
(d) Privacy Act requirements. See DHS's Privacy Act regulations in 5
CFR part 5, subpart B for additional information regarding the
requirements of the Privacy Act.
Sec. 5.11 Fees.
(a) In general. Components shall charge for processing requests
under the FOIA in accordance with the provisions of this section and
with the OMB Guidelines. Components will ordinarily use the most
efficient and least expensive method for processing requested records.
In order to resolve any fee issues that arise under this section, a
component may contact a requester for additional information. A
component ordinarily will collect all applicable fees before sending
copies of records to a requester. If you make a FOIA request, it shall
be considered a firm commitment to pay all applicable fees charged under
Sec. 5.11, up to $25.00, unless you seek a waiver of fees. Requesters
must pay fees by check or money order made payable to the Treasury of
the United States.
(b) Definitions. Generally, ``requester category'' means one of the
three categories in which agencies place requesters for the purpose of
determining whether a requester will be charged fees for search, review
and duplication; categories include commercial requesters, noncommercial
scientific or educational institutions or news media requesters, and all
other requesters. The term ``fee waiver'' means that processing fees
will be waived, or reduced, if a requester can demonstrate that certain
statutory standards are satisfied including that the information is in
the public interest and is not requested for a primarily commercial
interest. For purposes of this section:
(1) Commercial use request is a request that asks for information
for a use or a purpose that furthers a commercial, trade, or profit
interest, which can include furthering those interests through
litigation. A component's decision to place a requester in the
commercial use category will be made on a case-by-case basis based on
the requester's intended use of the information.
(2) Direct costs are those expenses that an agency expends in
searching for and duplicating (and, in the case of commercial use
requests, reviewing) records in order to respond to a FOIA request. For
example, direct costs include the salary of the employee performing the
work (i.e., the basic rate of pay for the employee, plus 16 percent of
that rate to cover benefits) and the cost of operating computers and
other electronic equipment, such as photocopiers and scanners. Direct
costs do not include overhead expenses such as the costs of space, and
of heating or lighting a facility.
(3) Duplication is reproducing a copy of a record or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
(4) Educational institution is any school that operates a program of
scholarly research. A requester in this fee category must show that the
request is made in connection with his or her role at the educational
institution. Components may seek verification from the requester that
the request is in furtherance of scholarly research.
Example 1. A request from a professor of geology at a university for
records relating to soil erosion, written on letterhead of the
Department of Geology, would be presumed to be from an educational
institution if the request adequately describes how the requested
information would further a specific research goal of the educational
institution.
Example 2. A request from the same professor of geology seeking
immigration information from the U.S. Immigration and Customs
Enforcement in furtherance of a murder mystery he is writing would not
be presumed to be an institutional request, regardless of whether it was
written on institutional stationery.
Example 3. A student who makes a request in furtherance of their
coursework or other school-sponsored activities and provides a copy of a
course syllabus or other reasonable documentation to indicate the
research purpose for the request, would qualify as part of this fee
category.
Note: These examples are provided for guidance purposes only. Each
individual request will be evaluated under the particular facts,
circumstances, and information provided by the requester.
[[Page 17]]
(5) Noncommercial scientific institution is an institution that is
not operated on a ``commercial'' basis, as defined in paragraph (b)(1)
of this section, and that is operated solely for the purpose of
conducting scientific research the results of which are not intended to
promote any particular product or industry. A requester in this category
must show that the request is authorized by and is made under the
auspices of a qualifying institution and that the records are sought to
further scientific research and not for a commercial use.
(6) Representative of the news media is any person or entity that
actively gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. The term
``news'' means information that is about current events or that would be
of current interest to the public. Examples of news media entities
include television or radio stations that broadcast ``news'' to the
public at large and publishers of periodicals that disseminate ``news''
and make their products available through a variety of means to the
general public, including but not limited to, news organizations that
disseminate solely on the Internet. A request for records that supports
the news-dissemination function of the requester shall not be considered
to be for a commercial use. In contrast, data brokers or others who
merely compile and market government information for direct economic
return shall not be presumed to be news media entities. ``Freelance''
journalists must demonstrate a solid basis for expecting publication
through a news media entity in order to be considered as working for a
news media entity. A publication contract would provide the clearest
evidence that publication is expected; however, components shall also
consider a requester's past publication record in making this
determination.
(7) Review is the page-by-page, line-by-line examination of a record
located in response to a request in order to determine whether any
portion of it is exempt from disclosure. Review time includes processing
any record for disclosure, such as doing all that is necessary to
prepare the record for disclosure, including the process of redacting
the record and marking the appropriate exemptions. Review costs are
properly charged even if a record ultimately is not disclosed. Review
time also includes time spent both obtaining and considering any formal
objection to disclosure made by a confidential commercial information
submitter under Sec. 5.7 or Sec. 5.12, but it does not include time
spent resolving general legal or policy issues regarding the application
of exemptions.
(8) Search is the process of looking for and retrieving records or
information responsive to a request. Search time includes page-by-page
or line-by-line identification of information within records; and the
reasonable efforts expended to locate and retrieve information from
electronic records. Components shall ensure that searches are done in
the most efficient and least expensive manner reasonably possible by
readily available means.
(c) Charging fees. In responding to FOIA requests, components shall
charge the following fees unless a waiver or reduction of fees has been
granted under paragraph (k) of this section. Because the fee amounts
provided below already account for the direct costs associated with a
given fee type, unless otherwise stated in Sec. 5.11, components should
not add any additional costs to those charges.
(1) Search. (i) Search fees shall be charged for all requests
subject to the restrictions of paragraph (d) of this section. Components
may properly charge for time spent searching even if they do not locate
any responsive records or if they determine that the records are
entirely exempt from disclosure.
(ii) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require new
programming, the fees will be as follows: Managerial--$10.25;
professional--$7.00; and clerical/administrative--$4.00.
(iii) Requesters will be charged the direct costs associated with
conducting any search that requires the creation of a new computer
program, as referenced in section 5.4, to locate the requested records.
Requesters shall be notified of the costs associated with
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creating such a program and must agree to pay the associated costs
before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by an
agency at a federal records center operated by the National Archives and
Records Administration (NARA), additional costs shall be charged in
accordance with the Transactional Billing Rate Schedule established by
NARA.
(2) Duplication. Duplication fees will be charged to all requesters,
subject to the restrictions of paragraph (d) of this section. A
component shall honor a requester's preference for receiving a record in
a particular form or format where it is readily reproducible by the
component in the form or format requested. Where photocopies are
supplied, the component will provide one copy per request at a cost of
ten cents per page. For copies of records produced on tapes, disks, or
other media, components will charge the direct costs of producing the
copy, including operator time. Where paper documents must be scanned in
order to comply with a requester's preference to receive the records in
an electronic format, the requester shall pay the direct costs
associated with scanning those materials. For other forms of
duplication, components will charge the direct costs.
(3) Review. Review fees will be charged to requesters who make
commercial use requests. Review fees will be assessed in connection with
the initial review of the record, i.e., the review conducted by a
component to determine whether an exemption applies to a particular
record or portion of a record. No charge will be made for review at the
administrative appeal stage of exemptions applied at the initial review
stage. However, when the appellate authority determines that a
particular exemption no longer applies, any costs associated with a
component's re-review of the records in order to consider the use of
other exemptions may be assessed as review fees. Review fees will be
charged at the same rates as those charged for a search under paragraph
(c)(1)(ii) of this section.
(d) Restrictions on charging fees. (1) No search fees will be
charged for requests by educational institutions, noncommercial
scientific institutions, or representatives of the news media, unless
the records are sought for a commercial use.
(2) If a component fails to comply with the FOIA's time limits in
which to respond to a request, it may not charge search fees, or, in the
instances of requests from requesters described in paragraph (d)(1) of
this section, may not charge duplication fees, except as described in
(d)(2)(i) through (iii).
(i) If a component has determined that unusual circumstances as
defined by the FOIA apply and the component provided timely written
notice to the requester in accordance with the FOIA, a failure to comply
with the time limit shall be excused for an additional 10 days.
(ii) If a component has determined that unusual circumstances, as
defined by the FOIA, apply and more than 5,000 pages are necessary to
respond to the request, a component may charge search fees, or, in the
case of requesters described in paragraph (d)(1) of this section, may
charge duplication fees, if the following steps are taken. The component
must have provided timely written notice of unusual circumstances to the
requester in accordance with the FOIA and the component must have
discussed with the requester via written mail, email, or telephone (or
made not less than three good-faith attempts to do so) how the requester
could effectively limit the scope of the request in accordance with 5.
U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the component
may charge all applicable fees incurred in the processing of the
request.
(iii) If a court has determined that exceptional circumstances
exist, as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(4) Except for requesters seeking records for a commercial use,
components will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
[[Page 19]]
(ii) The first two hours of search.
(5) When, after first deducting the 100 free pages (or its cost
equivalent) and the first two hours of search, a total fee calculated
under paragraph (c) of this section is $14.00 or less for any request,
no fee will be charged.
(e) Notice of anticipated fees in excess of $25.00. (1) When a
component determines or estimates that the fees to be assessed in
accordance with this section will exceed $25.00, the component shall
notify the requester of the actual or estimated amount of the fees,
including a breakdown of the fees for search, review and/or duplication,
unless the requester has indicated a willingness to pay fees as high as
those anticipated. If only a portion of the fee can be estimated
readily, the component shall advise the requester accordingly. If the
requester is a noncommercial use requester, the notice will specify that
the requester is entitled to his or her statutory entitlements of 100
pages of duplication at no charge and, if the requester is charged
search fees, two hours of search time at no charge, and will advise the
requester whether those entitlements have been provided. Two hours of
search time will be provided free of charge to non-commercial requesters
regardless of whether they agree to pay estimated fees.
(2) In cases in which a requester has been notified that the actual
or estimated fees are in excess of $25.00, the request shall not be
considered received and further work will not be completed until the
requester commits in writing to pay the actual or estimated total fee,
or designates some amount of fees he or she is willing to pay, or in the
case of a noncommercial use requester who has not yet been provided with
his or her statutory entitlements, designates that he or she seeks only
that which can be provided by the statutory entitlements. The requester
must provide the commitment or designation in writing, and must, when
applicable, designate an exact dollar amount the requester is willing to
pay. Components are not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but the component estimates that the total
fee will exceed that amount, the component will toll the processing of
the request while it notifies the requester of the estimated fees in
excess of the amount the requester has indicated a willingness to pay.
The component shall inquire whether the requester wishes to revise the
amount of fees he or she is willing to pay and/or modify the request.
Once the requester responds, the time to respond will resume from where
it was at the date of the notification.
(4) Components will make available their FOIA Public Liaison or
other FOIA professional to assist any requester in reformulating a
request to meet the requester's needs at a lower cost.
(f) Charges for other services. Although not required to provide
special services, if a component chooses to do so as a matter of
administrative discretion, the direct costs of providing the service
will be charged. Examples of such services include certifying that
records are true copies, providing multiple copies of the same document,
or sending records by means other than first class mail.
(g) Charging interest. Components may charge interest on any unpaid
bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the billing date until payment is
received by the component. Components will follow the provisions of the
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended,
and its administrative procedures, including the use of consumer
reporting agencies, collection agencies, and offset.
(h) Aggregating requests. When a component reasonably believes that
a requester or a group of requesters acting in concert is attempting to
divide a single request into a series of requests for the purpose of
avoiding fees, the component may aggregate those requests and charge
accordingly. Components may presume that multiple requests of this type
made within a 30-day period have been made in order to avoid fees. For
requests separated by a
[[Page 20]]
longer period, components will aggregate them only where there is a
reasonable basis for determining that aggregation is warranted in view
of all the circumstances involved. Multiple requests involving unrelated
matters will not be aggregated.
(i) Advance payments. (1) For requests other than those described in
paragraphs (i)(2) and (3) of this section, a component shall not require
the requester to make an advance payment before work is commenced or
continued on a request. Payment owed for work already completed (i.e.,
payment before copies are sent to a requester) is not an advance
payment.
(2) When a component determines or estimates that a total fee to be
charged under this section will exceed $250.00, it may require that the
requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. A component may
elect to process the request prior to collecting fees when it receives a
satisfactory assurance of full payment from a requester with a history
of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to any component or agency within 30 calendar days of
the billing date, a component may require that the requester pay the
full amount due, plus any applicable interest on that prior request and
the component may require that the requester make an advance payment of
the full amount of any anticipated fee, before the component begins to
process a new request or continues to process a pending request or any
pending appeal. Where a component has a reasonable basis to believe that
a requester has misrepresented his or her identity in order to avoid
paying outstanding fees, it may require that the requester provide proof
of identity.
(4) In cases in which a component requires advance payment, the
request shall not be considered received and further work will not be
completed until the required payment is received. If the requester does
not pay the advance payment within 30 calendar days after the date of
the component's fee determination, the request will be closed.
(j) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute that
specifically requires an agency to set and collect fees for particular
types of records. In instances where records responsive to a request are
subject to a statutorily-based fee schedule program, the component will
inform the requester of the contact information for that source.
(k) Requirements for waiver or reduction of fees. (1) Records
responsive to a request shall be furnished without charge or at a
reduced rate below that established under paragraph (c) of this section,
where a component determines, on a case-by-case basis, based on all
available information, that the requester has demonstrated that:
(i) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government; and
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(2) In deciding whether disclosure of the requested information is
in the public interest because it is likely to contribute significantly
to public understanding of operations or activities of the government,
components will consider the following factors:
(i) The subject of the request must concern identifiable operations
or activities of the federal government, with a connection that is
direct and clear, not remote or attenuated.
(ii) Disclosure of the requested records must be meaningfully
informative about government operations or activities in order to be
``likely to contribute'' to an increased public understanding of those
operations or activities. The disclosure of information that already is
in the public domain, in either the same or a substantially identical
form, would not contribute to such understanding where nothing new would
be added to the public's understanding.
(iii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester.
[[Page 21]]
A requester's expertise in the subject area as well as his or her
ability and intention to effectively convey information to the public
shall be considered. It shall be presumed that a representative of the
news media will satisfy this consideration.
(iv) The public's understanding of the subject in question must be
enhanced by the disclosure to a significant extent. However, components
shall not make value judgments about whether the information at issue is
``important'' enough to be made public.
(3) To determine whether disclosure of the requested information is
primarily in the commercial interest of the requester, components will
consider the following factors:
(i) Components shall identify any commercial interest of the
requester, as defined in paragraph (b)(1) of this section, that would be
furthered by the requested disclosure. Requesters shall be given an
opportunity to provide explanatory information regarding this
consideration.
(ii) A waiver or reduction of fees is justified where the public
interest is greater than any identified commercial interest in
disclosure. Components ordinarily shall presume that where a news media
requester has satisfied the public interest standard, the public
interest will be the interest primarily served by disclosure to that
requester. Disclosure to data brokers or others who merely compile and
market government information for direct economic return shall not be
presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(5) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the component and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time so long as the underlying record request is pending or
on administrative appeal. When a requester who has committed to pay fees
subsequently asks for a waiver of those fees and that waiver is denied,
the requester will be required to pay any costs incurred up to the date
the fee waiver request was received.
(6) Summary of fees. The following table summarizes the chargeable
fees (excluding direct fees identified in Sec. 5.11) for each requester
category.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category Search fees Review fees Duplication fees
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial-use....................... Yes....................................... Yes...................... Yes.
Educational or Non-Commercial No........................................ No....................... Yes (100 pages free).
Scientific Institution.
News Media........................... No........................................ No....................... Yes (100 pages free).
Other requesters..................... Yes (2 hours free)........................ No....................... Yes (100 pages free).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 5.12 Confidential commercial information; CBP procedures.
(a) In general. For purposes of this section, ``commercial
information'' is defined as trade secret, commercial, or financial
information obtained from a person. Commercial information provided to
CBP by a business submitter and that CBP determines is privileged or
confidential commercial or financial information will be treated as
privileged or confidential and will not be disclosed pursuant to a
Freedom of Information Act request or otherwise made known in any manner
except as provided in this section.
(b) Notice to business submitters of FOIA requests for disclosure.
Except as provided in paragraph (b)(2) of this section, CBP will provide
business submitters with prompt written notice of receipt of FOIA
requests or appeals that encompass their commercial information. The
written notice will describe either the exact nature of the commercial
information requested, or enclose copies of the records or those
portions of the records that contain the commercial information. The
written notice also will advise the business submitter of its right to
file a disclosure objection statement as provided under paragraph (c)(1)
of this section. CBP
[[Page 22]]
will provide notice to business submitters of FOIA requests for the
business submitter's commercial information for a period of not more
than 10 years after the date the business submitter provides CBP with
the information, unless the business submitter requests, and provides
acceptable justification for, a specific notice period of greater
duration.
(1) When notice is required. CBP will provide business submitters
with notice of receipt of a FOIA request or appeal whenever:
(i) The business submitter has in good faith designated the
information as commercially- or financially-sensitive information. The
business submitter's claim of confidentiality should be supported by a
statement by an authorized representative of the business entity
providing specific justification that the information in question is
considered confidential commercial or financial information and that the
information has not been disclosed to the public; or
(ii) CBP has reason to believe that disclosure of the commercial
information could reasonably be expected to cause substantial
competitive harm.
(2) When notice is not required. The notice requirements of this
section will not apply if:
(i) CBP determines that the commercial information will not be
disclosed;
(ii) The commercial information has been lawfully published or
otherwise made available to the public; or
(iii) Disclosure of the information is required by law (other than 5
U.S.C. 552).
(c) Procedure when notice given--(1) Opportunity for business
submitter to object to disclosure. A business submitter receiving
written notice from CBP of receipt of a FOIA request or appeal
encompassing its commercial information may object to any disclosure of
the commercial information by providing CBP with a detailed statement of
reasons within 10 days of the date of the notice (exclusive of
Saturdays, Sundays, and legal public holidays). The statement should
specify all the grounds for withholding any of the commercial
information under any exemption of the FOIA and, in the case of
Exemption 4, should demonstrate why the information is considered to be
a trade secret or commercial or financial information that is privileged
or confidential. The disclosure objection information provided by a
person pursuant to this paragraph may be subject to disclosure under the
FOIA.
(2) Notice to FOIA requester. When notice is given to a business
submitter under paragraph (b)(1) of this section, notice will also be
given to the FOIA requester that the business submitter has been given
an opportunity to object to any disclosure of the requested commercial
information.
(d) Notice of intent to disclose. CBP will consider carefully a
business submitter's objections and specific grounds for nondisclosure
prior to determining whether to disclose commercial information.
Whenever CBP decides to disclose the requested commercial information
over the objection of the business submitter, CBP will provide written
notice to the business submitter of CBP's intent to disclose, which will
include:
(1) A statement of the reasons for which the business submitter's
disclosure objections were not sustained;
(2) A description of the commercial information to be disclosed; and
(3) A specified disclosure date which will not be less than 10 days
(exclusive of Saturdays, Sundays, and legal public holidays) after the
notice of intent to disclose the requested information has been issued
to the business submitter. Except as otherwise prohibited by law, CBP
will also provide a copy of the notice of intent to disclose to the FOIA
requester at the same time.
(e) Notice of FOIA lawsuit. Whenever a FOIA requester brings suit
seeking to compel the disclosure of commercial information covered by
paragraph (b)(1) of this section, CBP will promptly notify the business
submitter in writing.
Sec. 5.13 Other rights and services.
Nothing in this subpart shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
[[Page 23]]
Sec. Appendix I to Subpart A to Part 5--FOIA Contact Information
Department of Homeland Security Chief FOIA Officer
Chief Privacy Officer/Chief FOIA Officer, The Privacy Office, U.S.
Department of Homeland Security,245 Murray Lane SW., STOP-0655,
Washington, DC. 20528-0655
Department of Homeland Security Deputy Chief FOIA Officer
Deputy Chief FOIA Officer, The Privacy Office, U.S. Department of
Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-
0655
Senior Director, FOIA Operations
Sr. Director, FOIA Operations, The Privacy Office, U.S. Department of
Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-
0655, Phone: 202-343-1743 or 866-431-0486,Fax: 202-343-4011, Email:
[email protected]
Director, FOIA Production and Quality Assurance
Public Liaison, FOIA Production and Quality Assurance, The Privacy
Office, U.S. Department of Homeland Security,245 Murray Lane SW., STOP-
0655, Washington, DC 20528-0655, Phone: 202-343-1743 or 866-431-0486,
Fax: 202-343-4011, Email: [email protected]
U.S. Customs & Border Protection (CBP)
FOIA Officer/Public Liaison, 90 K Street NE., 9th Floor, Washington, DC
20229-1181, Phone: 202-325-0150, Fax: 202-325-0230
Office of Civil Rights and Civil Liberties (CRCL)
FOIA Officer/Public Liaison, U.S. Department of Homeland Security,
Washington, DC 20528, Phone: 202-357-1218, Email: [email protected]
Federal Emergency Management Agency (FEMA)
FOIA Officer/Public Liaison, 500 C Street SW., Room 7NE, Washington, DC
20472, Phone: 202-646-3323,Email: [email protected]
Federal Law Enforcement Training Center (FLETC)
FOIA Officer/Public Liaison, Building 681, Suite 187B, Glynco, GA
31524, Phone: 912-267-3103,Fax: 912-267-3113, Email: [email protected]
National Protection and Programs Directorate (NPPD)
FOIA Officer/Public Liaison, U.S. Department of Homeland Security,
Washington, DC 20528, Phone: 703-235-2211, Fax: 703-235-2052, Email:
[email protected]
Office of Biometric Identity Management (OBIM) FOIA Officer, Department
of Homeland Security, Washington, DC 20598-0628, Phone: 202-298-5454,
Fax: 202-298-5445, E-Mail: [email protected]
Office of Intelligence & Analysis (I&A)
FOIA Officer/Public Liaison, U.S. Department of Homeland Security,
Washington, DC 20528, Phone: 202-447-4883, Fax: 202-612-1936, Email:
[email protected]
Office of Inspector General (OIG)
FOIA Public Liaison, DHS-OIG Counsel, STOP 0305, 245 Murray Lane SW.,
Washington, DC 20528-0305,Phone: 202-254-4001, Fax: 202-254-4398, Email:
[email protected]
Office of Operations Coordination and Planning (OPS)
FOIA Officer/Public Liaison,U.S. Department of Homeland
Security,Washington, DC 20528,Phone: 202-447-4156,Fax: 202-282-
9811,Email: [email protected]
Science & Technology Directorate (S&T)
FOIA Officer/Public Liaison,U.S. Department of Homeland
Security,Washington, DC 20528,Phone: 202-254-6342,Fax: 202-254-
6739,Email: [email protected]
Transportation Security Administration (TSA)
FOIA Officer/Public Liaison,Freedom of Information Act Branch,601 S.
12th Street,11th Floor, East Tower, TSA-20,Arlington, VA 20598-
6020,Phone: 1-866-FOIA-TSA or 571-227-2300,Fax: 571-227-1406,Email:
[email protected]
U.S. Citizenship & Immigration Services (USCIS)
FOIA Officer/Public Liaison,National Records Center, FOIA/PA Office,P.O.
Box 648010,Lee's Summit, Mo. 64064-8010,Phone: 1-800-375-5283 (USCIS
National Customer Service Unit),Fax: 816-350-5785,Email:
[email protected]
United States Coast Guard (USCG)
Commandant (CG-611),2100 2nd St., SW.,Attn: FOIA Officer/Public
Liaison,Washington, DC 20593-0001,FOIA Requester Service Center Contact:
Amanda Ackerson,Phone: 202-475-3522,Fax: 202-475-3927,Email:
[email protected]
United States Immigration & Customs Enforcement (ICE)
Freedom of Information Act Office,FOIA Officer/Public Liaison 500 12th
Street, SW., Stop 5009,Washington, DC 20536-5009,
[[Page 24]]
FOIA Requester Service Center Contact,Phone: 866-633-1182,Fax: 202-732-
4265,Email: [email protected]
United States Secret Service (USSS)
Freedom of Information and Privacy Acts Branch,FOIA Officer/Public
Liaison,245 Murray Drive, Building 410,Washington, DC 20223,Phone: 202-
406-6370,Fax: 202-406-5586,Email: [email protected]
Please direct all requests for information from the Office of the
Secretary, Citizenship and Immigration Services Ombudsman, Domestic
Nuclear Detection Office, Office of the Executive Secretary, Office of
Intergovernmental Affairs, Management Directorate, Office of Policy,
Office of the General Counsel, Office of Health Affairs, Office of
Legislative Affairs, Office of Public Affairs and the Privacy Office, to
the DHS Privacy Office at:
The Privacy Office,U.S. Department of Homeland Security,245 Murray Lane
SW.,STOP-0655,Washington, DC 20528-0655,Phone: 202-343-1743 or 866-431-
0486,Fax: 202-343-4011,Email: [email protected]
Subpart B_Privacy Act
Sec. 5.20 General provisions.
(a) Purpose and scope. (1) This subpart contains the rules that the
Department of Homeland Security (Department) follows under the Privacy
Act of 1974 (5 U.S.C. 552a). These rules should be read together with
the Privacy Act, which provides additional information about records
maintained on individuals. The rules in this subpart apply to all
records in systems of records maintained by the Department that are
retrieved by an individual's name or personal identifier. They describe
the procedures by which individuals may request access to records about
themselves, request amendment or correction of those records, and
request an accounting of disclosures of those by the Department. In
addition, the Department processes all Privacy Act requests for access
to records under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
following the rules contained in subpart A of this part, which gives
requests the benefit of both statutes.
(2) The provisions established by this subpart shall apply to all
Department components that are transferred to the Department. Except to
the extent a Department component has adopted separate guidance under
the Privacy Act, the provisions of this subpart shall apply to each
component of the Department. Departmental components may issue their own
guidance under this subpart pursuant to approval by the Department.
(b) Definitions. As used in this subpart:
(1) Component means each separate bureau, office, board, division,
commission, service, or administration of the Department.
(2) Request for access to a record means a request made under
Privacy Act subsection (d)(1).
(3) Request for amendment or correction of a record means a request
made under Privacy Act subsection (d)(2).
(4) Request for an accounting means a request made under Privacy Act
subsection (c)(3).
(5) Requester means an individual who makes a request for access, a
request for amendment or correction, or a request for an accounting
under the Privacy Act.
(c) Authority to request records for a law enforcement purpose. The
head of a component or designee thereof is authorized to make written
requests under subsection (b)(7) of the Privacy Act for records
maintained by other agencies that are necessary to carry out an
authorized law enforcement activity.
(d) Notice on Departmental use of (b)(1) exemption. As a general
matter, when applying the (b)(1) exemption for disclosures within an
agency on a need to know basis, the Department will consider itself a
single entity, meaning that information may be disclosed between
components of the Department under the (b)(1) exemption.
(e) Interim Retention of Authorities. As an interim solution, all
agencies and components under the Department will retain the necessary
authority from their original purpose in order to conduct these
necessary activities. This includes the authority to maintain Privacy
Act systems of records, disseminate information pursuant to existing or
new routine uses, and retention of exemption authorities under sections
(j) and (k) of the Privacy Act, where applicable. This retention of an
agency
[[Page 25]]
or component's authorities and information practices will remain in
effect until this regulation is promulgated as a final rule, or the
Department revises all systems of records notices. This retention of
authority is necessary to allow components to fulfill their mission and
purpose during the transition period of the establishment of the
Department. During this transition period, the Department shall evaluate
with the components the existing authorities and information practices
and determine what revisions (if any) are appropriate and should be made
to these existing authorities and practices. The Department anticipates
that such revisions will be made either through the issuance of a
revised system of records notices or through subsequent final
regulations.
Sec. 5.21 Requests for access to records.
(a) How made and addressed. You may make a request for access to a
Department of Homeland Security record about yourself by appearing in
person or by writing directly to the Department component that maintains
the record. Your request should be sent or delivered to the component's
Privacy Act office at the address listed in appendix A to this part. In
most cases, a component's central Privacy Act office is the place to
send a Privacy Act request. For records held by a field office of the
U.S. Customs Service, U.S. Secret Service, U.S. Coast Guard, or any
other Department component with field offices, however, you must write
directly to that Customs, Secret Service, Coast Guard, or other field
office address, which can be found in most telephone books or by calling
the component's central Privacy Act office. (The functions of each
component are summarized elsewhere in this title and in the description
of the Department and its components in the ``United States Government
Manual,'' which is issued annually and is available in most libraries,
as well as for sale from the Government Printing Office's Superintendent
of Documents. This manual also can be accessed electronically at the
Government Printing Office's World Wide Web site (which can be found at
http://www.access.gpo.gov/su_docs). Some records are maintained under a
government-wide systems of records notice, for example, Official
Personnel Files are maintained under the authority of the Office of
Personnel Management. In order to access records maintained under a
government-wide notice, please send your request to the Privacy Act
office of the original department or agency from which the component was
transferred to the Department. If you cannot determine where within the
Department to send your request, you may send it to the Departmental
Disclosure Officer, Department of Homeland Security, Washington, DC
20528, and that office will forward it to the component(s) it believes
most likely to have the records that you seek. For the quickest possible
handling, you should mark both your request letter and the envelope
``Privacy Act Request.''
(b) Description of records sought. You must describe the records
that you want in enough detail to enable Department personnel to locate
the system of records containing them with a reasonable amount of
effort. Whenever possible, your request should describe the records
sought, the time periods in which you believe they were compiled, and
the name or identifying number of each system of records in which you
believe they are kept. The Department publishes notices in the Federal
Register that describe its components' systems of records. A description
of the Department's systems of records also may be found as part of the
``Privacy Act Compilation'' published by the National Archives and
Records Administration's Office of the Federal Register. This
compilation is available in most large reference and university
libraries. This compilation also can be accessed electronically at the
Government Printing Office's World Wide Web site (which can be found at
http://www.access.gpo.gov/su_docs).
(c) Agreement to pay fees. If you make a Privacy Act request for
access to records, it shall be considered an agreement by you to pay all
applicable fees charged under Sec. 5.29, up to $25.00. The component
responsible for responding
[[Page 26]]
to your request ordinarily shall confirm this agreement in an
acknowledgement letter. When making a request, you may specify a
willingness to pay a greater or lesser amount.
(d) Verification of identity. When you make a request for access to
records about yourself, you must verify your identity. You must state
your full name, current address, and date and place of birth. You must
sign your request and your signature must either be notarized or
submitted by you under 28 U.S.C. 1746, a law that permits statements to
be made under penalty of perjury as a substitute for notarization. While
no specific form is required, you may obtain forms for this purpose from
the Departmental Disclosure Officer, Department of Homeland Security,
Washington, DC 20528. In order to help the identification and location
of requested records, you may also, at your option, include your social
security number.
(e) Verification of guardianship. When making a request as the
parent or guardian of a minor or as the guardian of someone determined
by a court to be incompetent, for access to records about that
individual, you must establish:
(1) The identity of the individual who is the subject of the record,
by stating the name, current address, date and place of birth, and, at
your option, the social security number of the individual;
(2) Your own identity, as required in paragraph (d) of this section;
(3) That you are the parent or guardian of that individual, which
you may prove by providing a copy of the individual's birth certificate
showing your parentage or by providing a court order establishing your
guardianship; and
(4) That you are acting on behalf of that individual in making the
request.
(f) Verification in the case of third party information requests. If
you are making a request for records concerning an individual on behalf
of that individual, you must provide a statement from the individual
verifying the identity of the individual as provided in paragraph (d) of
this section. You must also provide a statement from the individual
certifying the individual's agreement that records concerning the
individual may be released to you.
Sec. 5.22 Responsibility for responding to requests for access to records.
(a) In general. Except as stated in paragraphs (c), (d), and (e) of
this section, the component that first receives a request for access to
a record, and has possession of that record, is the component
responsible for responding to the request. In determining which records
are responsive to a request, a component ordinarily shall include only
those records in its possession as of the date the component begins its
search for them. If any other date is used, the component shall inform
the requester of that date.
(b) Authority to grant or deny requests. The head of a component, or
the component head's designee, is authorized to grant or deny any
request for access or amendment to a record of that component.
(c) Consultations and referrals. When a component receives a request
for access to a record in its possession, it shall determine whether
another component, or another agency of the Federal Government, is
better able to determine whether the record is exempt from access under
the Privacy Act. If the receiving component determines that it is best
able to process the record in response to the request, then it shall do
so. If the receiving component determines that it is not best able to
process the record, then it shall either:
(1) Respond to the request regarding that record, after consulting
with the component or agency best able to determine whether the record
is exempt from access and with any other component or agency that has a
substantial interest in it; or
(2) Refer the responsibility for responding to the request regarding
that record to the component best able to determine whether it is exempt
from access, or to another agency that originated the record (but only
if that agency is subject to the Privacy Act). Ordinarily, the component
or agency that originated a record will be presumed to be best able to
determine whether it is exempt from access.
[[Page 27]]
(d) Law enforcement information. Whenever a request is made for
access to a record containing information that relates to an
investigation of a possible violation of law and that was originated by
another component or agency, the receiving component shall either refer
the responsibility for responding to the request regarding that
information to that other component or agency or shall consult with that
other component or agency.
(e) Classified information. Whenever a request is made for access to
a record containing information that has been classified by or may be
appropriate for classification by another component or agency under
Executive Order 12958 or any other executive order concerning the
classification of records, the receiving component shall refer the
responsibility for responding to the request regarding that information
to the component or agency that classified the information, should
consider the information for classification, or has the primary interest
in it, as appropriate. Whenever a record contains information that has
been derivatively classified by a component because it contains
information classified by another component or agency, the component
shall refer the responsibility for responding to the request regarding
that information to the component or agency that classified the
underlying information.
(f) Release of Medical Records. Pursuant to 5 U.S.C. 552a(f)(3),
where requests are made for access to medical records, including
psychological records, the decision to release directly to the
individual, or to withhold direct release, shall be made by a medical
practitioner. Where the medical practitioner has ruled that direct
release will cause harm to the individual who is requesting access,
normal release through the individual's chosen medical practitioner will
be recommended. Final review and decision on appeals of disapprovals of
direct release will rest with the General Counsel.
(g) Notice of referral. Whenever a component refers all or any part
of the responsibility for responding to a request to another component
or agency, it ordinarily shall notify the requester of the referral and
inform the requester of the name of each component or agency to which
the request has been referred and of the part of the request that has
been referred.
(h) Timing of responses to consultations and referrals. All
consultations and referrals shall be handled according to the date the
Privacy Act access request was initially received by the first component
or agency, not any later date.
(i) Agreements regarding consultations and referrals. Components may
make agreements with other components or agencies to eliminate the need
for consultations or referrals for particular types of records.
Sec. 5.23 Responses to requests for access to records.
(a) Acknowledgements of requests. On receipt of a request, a
component ordinarily shall send an acknowledgement letter to the
requester which shall confirm the requester's agreement to pay fees
under Sec. 5.21(c) and provide an assigned request number for further
reference.
(b) Grants of requests for access. Once a component makes a
determination to grant a request for access in whole or in part, it
shall notify the requester in writing. The component shall inform the
requester in the notice of any fee charged under Sec. 5.29 and shall
disclose records to the requester promptly on payment of any applicable
fee. If a request is made in person, the component may disclose records
to the requester directly, in a manner not unreasonably disruptive of
its operations, on payment of any applicable fee and with a written
record made of the grant of the request. If a requester is accompanied
by another person, the requester shall be required to authorize in
writing any discussion of the records in the presence of the other
person.
(c) Adverse determinations of requests for access. A component
making an adverse determination denying a request for access in any
respect shall notify the requester of that determination in writing.
Adverse determinations, or denials of requests, consist of: a
determination to withhold any requested record in whole or in part; a
determination that a requested record does not exist or cannot be
located; a determination that what has been requested
[[Page 28]]
is not a record subject to the Privacy Act; a determination on any
disputed fee matter; and a denial of a request for expedited treatment.
The notification letter shall be signed by the head of the component, or
the component head's designee, and shall include:
(1) The name and title or position of the person responsible for the
denial;
(2) A brief statement of the reason(s) for the denial, including any
Privacy Act exemption(s) applied by the component in denying the
request; and
(3) A statement that the denial may be appealed under Sec. 5.25(a)
and a description of the requirements of Sec. 5.25(a).
Sec. 5.24 Classified information.
In processing a request for access to a record containing
information that is classified under Executive Order 12958 or any other
executive order, the originating component shall review the information
to determine whether it should remain classified. Information determined
to no longer require classification shall not be withheld from a
requester on the basis of Exemption (k)(1) of the Privacy Act. On
receipt of any appeal involving classified information, the DHS Office
of the General Counsel or its designee, shall take appropriate action to
ensure compliance with part 7 of this title.
[68 FR 4056, Jan. 27, 2003, as amended at 85 FR 11830, Feb. 28, 2020]
Sec. 5.25 Appeals.
(a) Appeals. If you are dissatisfied with a component's response to
your request for access to records, you may appeal an adverse
determination denying your request in any respect to the DHS Office of
the General Counsel or its designee, Department of Homeland Security,
Washington, DC 20528. You must make your appeal in writing and it must
be received by the DHS Office of the General Counsel or its designee
within 60 days of the date of the letter denying your request. Your
appeal letter may include as much or as little related information as
you wish, as long as it clearly identifies the component determination
(including the assigned request number, if known) that you are
appealing. For the quickest possible handling, you should mark both your
appeal letter and the envelope ``Privacy Act Appeal.''
(b) Responses to appeals. The decision on your appeal will be made
in writing. A decision affirming an adverse determination in whole or in
part will include a brief statement of the reason(s) for the affirmance,
including any Privacy Act exemption applied, and will inform you of the
Privacy Act provisions for court review of the decision. If the adverse
determination is reversed or modified on appeal in whole or in part, you
will be notified in a written decision and your request will be
reprocessed in accordance with that appeal decision. An adverse
determination by the DHS Office of the General Counsel or its designee
will be the final action of the Department.
(c) When appeal is required. If you wish to seek review by a court
of any adverse determination or denial of a request, you must first
appeal it under this section. An appeal will not be acted on if the
request becomes a matter of litigation.
[68 FR 4056, Jan. 27, 2003, as amended at 85 FR 11830, Feb. 28, 2020]
Sec. 5.26 Requests for amendment or correction of records.
(a) How made and addressed. Unless the record is not subject to
amendment or correction as stated in paragraph (f) of this section, you
may make a request for amendment or correction of a record of the
Department about you by writing directly to the Department component
that maintains the record, following the procedures in Sec. 5.21. Your
request should identify each particular record in question, state the
amendment or correction that you want, and state why you believe that
the record is not accurate, relevant, timely, or complete. You may
submit any documentation that you think would be helpful. If you believe
that the same record is in more than one system of records, you should
state that and address your request to each component that maintains a
system of records containing the record.
(b) Component responses. Within ten working days of receiving your
request for amendment or correction of records, a component shall send
you a written acknowledgment of its receipt
[[Page 29]]
of your request, and it shall promptly notify you whether your request
is granted or denied. If the component grants your request in whole or
in part, it shall describe the amendment or correction made and shall
advise you of your right to obtain a copy of the corrected or amended
record, in disclosable form. If the component denies your request in
whole or in part, it shall send you a letter signed by the head of the
component, or the component head's designee, that shall state:
(1) The reason(s) for the denial; and
(2) The procedure for appeal of the denial under paragraph (c) of
this section, including the name and business address of the official
who will act on your appeal.
(c) Appeals. You may appeal a denial of a request for amendment or
correction to the DHS Office of the General Counsel or its designee in
the same manner as a denial of a request for access to records (see
Sec. 5.25) and the same procedures shall be followed. If your appeal is
denied, you shall be advised of your right to file a Statement of
Disagreement as described in paragraph (d) of this section and of your
right under the Privacy Act for court review of the decision.
(d) Statements of Disagreement. If your appeal under this section is
denied in whole or in part, you have the right to file a Statement of
Disagreement that states your reason(s) for disagreeing with the
Department's denial of your request for amendment or correction.
Statements of Disagreement must be concise, must clearly identify each
part of any record that is disputed, and should be no longer than one
typed page for each fact disputed. Your Statement of Disagreement must
be sent to the component involved, which shall place it in the system of
records in which the disputed record is maintained and shall mark the
disputed record to indicate that a Statement of Disagreement has been
filed and where in the system of records it may be found.
(e) Notification of amendment/correction or disagreement. Within 30
working days of the amendment or correction of a record, the component
that maintains the record shall notify all persons, organizations, or
agencies to which it previously disclosed the record, if an accounting
of that disclosure was made, that the record has been amended or
corrected. If an individual has filed a Statement of Disagreement, the
component shall append a copy of it to the disputed record whenever the
record is disclosed and may also append a concise statement of its
reason(s) for denying the request to amend or correct the record.
(f) Records not subject to amendment or correction. The following
records are not subject to amendment or correction:
(1) Transcripts of testimony given under oath or written statements
made under oath;
(2) Transcripts of grand jury proceedings, judicial proceedings, or
quasi-judicial proceedings, which are the official record of those
proceedings;
(3) Presentence records that originated with the courts; and
(4) Records in systems of records that have been exempted from
amendment and correction under Privacy Act (5 U.S.C. 552a(j) or (k)) by
notice published in the Federal Register.
[68 FR 4056, Jan. 27, 2003, as amended at 85 FR 11830, Feb. 28, 2020]
Sec. 5.27 Requests for an accounting of record disclosures.
(a) How made and addressed. Except where accountings of disclosures
are not required to be kept (as stated in paragraph (b) of this
section), you may make a request for an accounting of any disclosure
that has been made by the Department to another person, organization, or
agency of any record about you. This accounting contains the date,
nature, and purpose of each disclosure, as well as the name and address
of the person, organization, or agency to which the disclosure was made.
Your request for an accounting should identify each particular record in
question and should be made by writing directly to the Department
component that maintains the record, following the procedures in Sec.
5.21.
(b) Where accountings are not required. Components are not required
to provide accountings to you where they relate to:
[[Page 30]]
(1) Disclosures for which accountings are not required to be kept,
such as disclosures that are made to employees within the agency and
disclosures that are made under the FOIA;
(2) Disclosures made to law enforcement agencies for authorized law
enforcement activities in response to written requests from those law
enforcement agencies specifying the law enforcement activities for which
the disclosures are sought; or
(3) Disclosures made from law enforcement systems of records that
have been exempted from accounting requirements.
(c) Appeals. You may appeal a denial of a request for an accounting
to the DHS Office of the General Counsel or its designee in the same
manner as a denial of a request for access to records (see Sec. 5.25)
and the same procedures will be followed.
[68 FR 4056, Jan. 27, 2003, as amended at 85 FR 11830, Feb. 28, 2020]
Sec. 5.28 Preservation of records.
Each component will preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the Act.
Sec. 5.29 Fees.
(a) Components shall charge fees for duplication of records under
the Privacy Act in the same way in which they charge duplication fees
under Sec. 5.11.
(b) The Department shall not process a request under the Privacy Act
from persons with an unpaid fee from any previous Privacy Act request to
any Federal agency until that outstanding fee has been paid in full to
the agency.
Sec. 5.30 Notice of court-ordered and emergency disclosures.
(a) Court-ordered disclosures. When a record pertaining to an
individual is required to be disclosed by a court order, the component
shall make reasonable efforts to provide notice of this to the
individual. Notice shall be given within a reasonable time after the
component's receipt of the order, except that in a case in which the
order is not a matter of public record, the notice shall be given only
after the order becomes public. This notice shall be mailed to the
individual's last known address and shall contain a copy of the order
and a description of the information disclosed. Notice shall not be
given if disclosure is made from a criminal law enforcement system of
records that has been exempted from the notice requirement.
(b) Emergency disclosures. Upon disclosing a record pertaining to an
individual made under compelling circumstances affecting health or
safety, the component shall notify that individual of the disclosure.
This notice shall be mailed to the individual's last known address and
shall state the nature of the information disclosed; the person,
organization, or agency to which it was disclosed; the date of
disclosure; and the compelling circumstances justifying the disclosure.
Sec. 5.31 Security of systems of records.
(a) In general. Each component shall establish administrative and
physical controls to prevent unauthorized access to its systems of
records, to prevent unauthorized disclosure of records, and to prevent
physical damage to or destruction of records. The stringency of these
controls shall correspond to the sensitivity of the records that the
controls protect. At a minimum, each component's administrative and
physical controls shall ensure that:
(1) Records are protected from public view;
(2) The area in which records are kept is supervised during business
hours to prevent unauthorized persons from having access to them;
(3) Records are inaccessible to unauthorized persons outside of
business hours; and
(4) Records are not disclosed to unauthorized persons or under
unauthorized circumstances in either oral or written form.
[[Page 31]]
(b) Procedures required. Each component shall have procedures that
restrict access to records to only those individuals within the
Department who must have access to those records in order to perform
their duties and that prevent inadvertent disclosure of records.
Sec. 5.32 Contracts for the operation of record systems.
Under 5 U.S.C. 552a(m), any approved contract for the operation of a
record system will contain the standard contract requirements issued by
the General Services Administration to ensure compliance with the
requirements of the Privacy Act for that record system. The contracting
component will be responsible for ensuring that the contractor complies
with these contract requirements.
Sec. 5.33 Use and collection of social security numbers.
Each component shall ensure that employees authorized to collect
information are aware:
(a) That individuals may not be denied any right, benefit, or
privilege as a result of refusing to provide their social security
numbers, unless the collection is authorized either by a statute or by a
regulation issued prior to 1975; and
(b) That individuals requested to provide their social security
numbers must be informed of:
(1) Whether providing social security numbers is mandatory or
voluntary;
(2) Any statutory or regulatory authority that authorizes the
collection of social security numbers; and
(3) The uses that will be made of the numbers.
Sec. 5.34 Standards of conduct for administration of the Privacy Act.
Each component will inform its employees of the provisions of the
Privacy Act, including the Act's civil liability and criminal penalty
provisions. Unless otherwise permitted by law, the Department shall:
(a) Collect from individuals only the information that is relevant
and necessary to discharge the responsibilities of the Department;
(b) Collect information about an individual directly from that
individual whenever practicable and when the information may result in
adverse determinations about an individual's rights, benefits, and
privileges under federal programs;
(c) Inform each individual from whom information is collected of:
(1) The legal authority to collect the information and whether
providing it is mandatory or voluntary;
(2) The principal purpose for which the Department intends to use
the information;
(3) The routine uses the Department may make of the information; and
(4) The effects on the individual, if any, of not providing the
information;
(d) Ensure that the component maintains no system of records without
public notice and that it notifies appropriate Department officials of
the existence or development of any system of records that is not the
subject of a current or planned public notice;
(e) Maintain all records that are used by the Department in making
any determination about an individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to ensure
fairness to the individual in the determination;
(f) Except as to disclosures made to an agency or made under the
FOIA, make reasonable efforts, prior to disseminating any record about
an individual, to ensure that the record is accurate, relevant, timely,
and complete;
(g) Maintain no record describing how an individual exercises his or
her First Amendment rights, unless it is expressly authorized by statute
or by the individual about whom the record is maintained, or is
pertinent to and within the scope of an authorized law enforcement
activity;
(h) When required by the Privacy Act, maintain an accounting in the
specified form of all disclosures of records by the Department to
persons, organizations, or agencies;
(i) Maintain and use records with care to prevent the unauthorized
or inadvertent disclosure of a record to anyone.
[[Page 32]]
Sec. 5.35 Sanctions and penalties.
Under the provisions of the Privacy Act, 5 U.S.C. 552a, civil and
criminal penalties may be assessed.
Sec. 5.36 Other rights and services.
Nothing in this subpart shall be construed to entitle any person, as
of right, to any service or to the disclosure of any record to which
such person is not entitled under the Privacy Act.
Subpart C_Disclosure of Information in Litigation
Source: 68 FR 4070, Jan. 27, 2003, unless otherwise noted.
Sec. 5.41 Purpose and scope; definitions.
(a) This subpart C sets forth the procedures to be followed with
respect to:
(1) Service of summonses and complaints or other requests or demands
directed to the Department of Homeland Security (Department) or to any
Department employee or former employee in connection with federal or
state litigation arising out of or involving the performance of official
activities of the Department; and
(2) The oral or written disclosure, in response to subpoenas,
orders, or other requests or demands of federal or state judicial or
quasi-judicial or administrative authority as well as state legislative
authorities (collectively, ``demands''), whether civil or criminal in
nature, or in response to requests for depositions, affidavits,
admissions, responses to interrogatories, document production,
interviews, or other litigation-related matters, including pursuant to
the Federal Rules of Civil Procedure, the Federal Rules of Criminal
Procedure, or applicable state rules (collectively, ``requests''), of
any material contained in the files of the Department, any information
relating to material contained in the files of the Department, or any
information acquired while the subject of the demand or request is or
was employed by the Department, or served as Secretary of the
Department, as part of the performance of that person's duties or by
virtue of that person's official status.
(b) The provisions established by this subpart shall apply to all
Department components that are transferred to the Department. Except to
the extent a Department component has adopted separate guidance
governing the subject matter of a provision of this subpart, the
provisions of this subpart shall apply to each component of the
Department. Departmental components may issue their own guidance under
this subpart subject to the approval of the General Counsel of the
Department.
(c) For purposes of this subpart, and except as the Department may
otherwise determine in a particular case, the term employee includes all
former Secretaries of Homeland Security and all employees of the
Department of Homeland Security or other federal agencies who are or
were appointed by, or subject to the supervision, jurisdiction, or
control of the Secretary of Homeland Security, whether residing or
working in the United States or abroad, including United States
nationals, foreign nationals, and contractors. The procedures
established within this subpart also apply to former employees of the
Department where specifically noted.
(d) For purposes of this subpart, the term litigation encompasses
all pre-trial, trial, and post-trial stages of all judicial or
administrative actions, hearings, investigations, or similar proceedings
before courts, commissions, boards (including the Board of Appellate
Review), grand juries, or other judicial or quasi-judicial bodies or
tribunals, whether criminal, civil, or administrative in nature. This
subpart governs, inter alia, responses to discovery requests,
depositions, and other pre-trial, trial, or post-trial proceedings, as
well as responses to informal requests by attorneys or others in
situations involving litigation. However, this subpart shall not apply
to any claims against the Department by Department of Homeland Security
employees (present or former), or applicants for Department employment,
for which jurisdiction resides with the U.S. Equal Employment
Opportunity Commission; the U.S. Merit Systems Protection Board; the
Office of Special Counsel; the Federal Labor Relations Authority; the
Foreign Service Labor Relations Board; the Foreign Service Grievance
Board; or a labor arbitrator operating under a collective bargaining
[[Page 33]]
agreement between the Department and a labor organization representing
Department employees; or their successor agencies or entities.
(e) For purposes of this subpart, official information means all
information of any kind, however stored, that is in the custody and
control of the Department, relates to information in the custody and
control of the Department, or was acquired by Department employees, or
former employees, as part of their official duties or because of their
official status within the Department while such individuals were
employed by or served on behalf of the Department.
(f) Nothing in this subpart affects disclosure of information under
the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5
U.S.C. 552a, Executive Order 12958 on national security information (3
CFR, 1995 Comp., p. 333), the Government in the Sunshine Act, 5 U.S.C.
552b, the Department's implementing regulations or pursuant to
congressional subpoena. Nothing in this subpart permits disclosure of
information by the Department, its present and former employees, or the
Secretary, that is protected or prohibited by statute or other
applicable law.
(g) This subpart is intended only to inform the public about
Department procedures concerning the service of process and responses to
demands or requests and is not intended to and does not create, and may
not be relied upon to create any right or benefit, substantive or
procedural, enforceable at law by a party against the Department or the
United States.
(h) Nothing in this subpart affects the rules and procedures, under
applicable U.S. law and international conventions, governing diplomatic
and consular immunity.
(i) Nothing in this subpart affects the disclosure of official
information to other federal agencies or Department of Justice attorneys
in connection with litigation conducted on behalf or in defense of the
United States, its agencies, officers, and employees, or litigation in
which the United States has an interest; or to federal, state, local, or
foreign prosecuting and law enforcement authorities in conjunction with
criminal law enforcement investigations, prosecutions, or other
proceedings, e.g., extradition, deportation.
Sec. 5.42 Service of summonses and complaints.
(a) Only the Office of the General Counsel is authorized to receive
and accept on behalf of the Department summonses or complaints sought to
be served upon the Department, the Secretary, or Department employees.
All such documents must be sent by registered or certified mail, to the
appropriate address as indicated in appendix A to this subpart. The
Office of the General Counsel may also in its discretion accept service
of process in person or by registered or certified mail to other
addresses, as announced on the DHS website as indicated in appendix A to
this subpart. The authorization for receipt shall in no way affect the
requirements of service elsewhere provided in applicable rules and
regulations.
(b) In the event any summons or complaint described in Sec. 5.41(a)
is delivered to an employee of the Department other than in the manner
specified in this part, the recipient thereof shall decline to accept
the proffered service and may notify the person attempting to make
service of the Departmental regulations set forth herein.
(c) Except as otherwise provided Sec. Sec. 5.42(d) and 5.43(c), the
Department is not an authorized agent for service of process with
respect to civil litigation against Department employees purely in their
personal, non-official capacity. Copies of summonses or complaints
directed to Department employees in connection with legal proceedings
arising out of the performance of official duties may, however, be
served upon the Office of the General Counsel.
(d) Although the Department is not an agent for the service of
process upon its employees with respect to purely personal, non-official
litigation, the Department recognizes that its employees should not use
their official positions to evade their personal obligations and will,
therefore, counsel and encourage Department employees to accept service
of process in appropriate cases.
[[Page 34]]
(e) Documents for which the Office of the General Counsel accepts
service in official capacity only shall be stamped ``Service Accepted in
Official Capacity Only''. Acceptance of service shall not constitute an
admission or waiver with respect to jurisdiction, propriety of service,
improper venue, or any other defense in law or equity available under
applicable laws or rules.
[68 FR 4070, Jan. 27, 2003, as amended at 85 FR 22582, Apr. 23, 2020]
Sec. 5.43 Service of subpoenas, court orders, and other demands or
requests for official information or action.
(a) Except in cases in which the Department is represented by legal
counsel who have entered an appearance or otherwise given notice of
their representation, only the Office of the General Counsel is
authorized to receive and accept subpoenas (consistent with paragraph
(g) of this section) or other demands or requests directed to the
Secretary, the Department, or any component thereof, or its employees,
whether civil or criminal in nature, for:
(1) Material, including documents, contained in the files of the
Department;
(2) Information, including testimony, affidavits, declarations,
admissions, responses to interrogatories, or informal statements,
relating to material contained in the files of the Department or which
any Department employee acquired in the course and scope of the
performance of his official duties;
(3) Garnishment or attachment of compensation of current or former
employees; or
(4) The performance or non-performance of any official Department
duty.
(b) In the event that any subpoena, demand, or request is sought to
be delivered to a Department employee other than in the manner
prescribed in paragraph (a) of this section, such employee shall, after
consultation with the Office of the General Counsel, decline service and
direct the server of process to the Departmental regulations. If the
subpoena, demand, or other request is nonetheless delivered to the
employee, the employee shall immediately forward a copy of that document
to the Office of the General Counsel.
(c) Except as otherwise provided in this subpart, the Department is
not an agent for service, or otherwise authorized to accept on behalf of
its employees, any subpoenas, show-cause orders, or similar compulsory
process of federal or state courts, or requests from private individuals
or attorneys, which are not related to the employees' official duties
except upon the express, written authorization of the individual
Department employee to whom such demand or request is directed.
(d) Acceptance of such documents by the Office of the General
Counsel does not constitute a waiver of any defenses that might
otherwise exist with respect to service under the Federal Rules of Civil
or Criminal Procedure or other applicable rules.
(e) Copies of any subpoenas, show cause orders, or similar
compulsory process of federal or state courts, or requests from private
individuals or attorneys, directed to former employees of the Department
in connection with legal proceedings arising out of the performance of
official duties shall also be served upon the Office of the General
Counsel. The Department shall not, however, serve as an agent for
service for the former employee, nor is the Department otherwise
authorized to accept service on behalf of its former employees. If the
demand involves their official duties, former employees who receive
subpoenas, show cause orders, or similar compulsory process of federal
or state courts should also notify in the component of the Department in
which they were employed if the service involves their official duties
while so employed.
(f) If the subpoena, demand, or other request is nonetheless
delivered to the employee, the employee shall immediately forward a copy
of that document to the Office of the General Counsel.
(g) Subpoenas must be delivered by personal service at the
appropriate address as indicated in appendix A to this subpart,
consistent with the Federal Rules of Civil Procedure, unless DHS has
specified alternative means of service, in its discretion, on the DHS
website as indicated in appendix A to
[[Page 35]]
this subpart. This paragraph (g) does not apply to other demands or
requests for information under paragraph (a) of this section.
[68 FR 4070, Jan. 27, 2003, as amended at 85 FR 22582, Apr. 23, 2020]
Sec. 5.44 Testimony and production of documents prohibited unless
approved by appropriate Department officials.
(a) No employee, or former employee, of the Department shall, in
response to a demand or request, including in connection with any
litigation, provide oral or written testimony by deposition,
declaration, affidavit, or otherwise concerning any information acquired
while such person is or was an employee of the Department as part of the
performance of that person's official duties or by virtue of that
person's official status, unless authorized to do so by the Office of
the General Counsel, or as authorized in Sec. 5.44(b).
(b) No employee, or former employee, shall, in response to a demand
or request, including in connection with any litigation, produce any
document or any material acquired as part of the performance of that
employee's duties or by virtue of that employee's official status,
unless authorized to do so by the Office of the General Counsel or the
delegates thereof, as appropriate.
Sec. 5.45 Procedure when testimony or production of documents is
sought; general.
(a) If official information is sought, through testimony or
otherwise, by a request or demand, the party seeking such release or
testimony must (except as otherwise required by federal law or
authorized by the Office of the General Counsel) set forth in writing,
and with as much specificity as possible, the nature and relevance of
the official information sought. Where documents or other materials are
sought, the party should provide a description using the types of
identifying information suggested in Sec. 5.3(b). Subject to Sec.
5.47, Department employees may only produce, disclose, release, comment
upon, or testify concerning those matters which were specified in
writing and properly approved by the appropriate Department official
designated in Sec. 5.44. See United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951). The Office of the General Counsel may waive the
requirement of this subsection in appropriate circumstances.
(b) To the extent it deems necessary or appropriate, the Department
may also require from the party seeking such testimony or documents a
plan of all reasonably foreseeable demands, including but not limited to
the names of all employees and former employees from whom discovery will
be sought, areas of inquiry, expected duration of proceedings requiring
oral testimony, and identification of potentially relevant documents.
(c) The appropriate Department official designated in Sec. 5.42
will notify the Department employee and such other persons as
circumstances may warrant of its decision regarding compliance with the
request or demand.
(d) The Office of the General Counsel will consult with the
Department of Justice regarding legal representation for Department
employees in appropriate cases.
Sec. 5.46 Procedure when response to demand is required prior to
receiving instructions.
(a) If a response to a demand is required before the appropriate
Department official designated in Sec. 5.44 renders a decision, the
Department, if necessary, will request that the Department of Justice or
the appropriate Department attorney take appropriate steps to stay,
postpone, or obtain relief from the demand pending decision. If
necessary, the attorney will:
(1) Appear with the employee upon whom the demand has been made;
(2) Furnish the court or other authority with a copy of the
regulations contained in this subpart;
(3) Inform the court or other authority that the demand has been, or
is being, as the case may be, referred for the prompt consideration of
the appropriate Department official; and
(4) Respectfully request the court or authority to stay the demand
pending receipt of the requested instructions.
(b) In the event that an immediate demand for production or
disclosure is made in circumstances which would
[[Page 36]]
preclude the proper designation or appearance of a Department of Justice
or appropriate Department attorney on the employee's behalf, the
employee, if necessary, shall respectfully request from the demanding
court or authority for a reasonable stay of proceedings for the purpose
of obtaining instructions from the Department.
Sec. 5.47 Procedure in the event of an adverse ruling.
If a stay of, or other relief from, the effect of the demand in
response to a request made pursuant to Sec. 5.46 is declined or not
obtained, or if the court or other judicial or quasi-judicial authority
declines to stay the effect of the demand in response to a request made
pursuant to Sec. 5.46, or if the court or other authority rules that
the demand must be complied with irrespective of the Department's
instructions not to produce the material or disclose the information
sought, the employee upon whom the demand has been made shall
respectfully decline to comply with the demand, citing this subpart and
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Sec. 5.48 Considerations in determining whether the Department will
comply with a demand or request.
(a) In deciding whether to comply with a demand or request,
Department officials and attorneys shall consider, among any other
pertinent considerations:
(1) Whether such compliance would be unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand arose;
(2) Whether compliance is appropriate under the relevant substantive
law concerning privilege or disclosure of information;
(3) The public interest;
(4) The need to conserve the time of Department employees for the
conduct of official business;
(5) The need to avoid spending the time and money of the United
States for private purposes;
(6) The need to maintain impartiality between private litigants in
cases where a substantial government interest is not implicated;
(7) Whether compliance would have an adverse effect on performance
by the Department of its mission and duties; and
(8) The need to avoid involving the Department in controversial
issues not related to its mission.
(b) Among those demands and requests in response to which compliance
will not ordinarily be authorized are those with respect to which any of
the following factors, inter alia, exist:
(1) Compliance would violate a statute or a rule of procedure;
(2) Compliance would violate a specific regulation or Executive
order;
(3) Compliance would reveal information properly classified in the
interest of national security;
(4) Compliance would reveal confidential commercial or financial
information or trade secrets without the owner's consent;
(5) Compliance would reveal the internal deliberative processes of
the Executive Branch; or
(6) Compliance would potentially impede or prejudice an on-going law
enforcement investigation.
Sec. 5.49 Prohibition on providing expert or opinion testimony.
(a) Except as provided in this section, and subject to 5 CFR
2635.805, Department employees shall not provide opinion or expert
testimony based upon information which they acquired in the scope and
performance of their official Department duties, except on behalf of the
United States or a party represented by the Department of Justice.
(b) Any expert or opinion testimony by a former employee of the
Department shall be excepted from 5.49(a) where the testimony involves
only general expertise gained while employed at the Department.
(c) Upon a showing by the requestor of exceptional need or unique
circumstances and that the anticipated testimony will not be adverse to
the interests of the United States, the appropriate Department official
designated in Sec. 5.44 may, consistent with 5 CFR 2635.805, in their
discretion and with the concurrence of the Office of the General
Counsel, grant special, written
[[Page 37]]
authorization for Department employees, or former employees, to appear
and testify as expert witnesses at no expense to the United States.
(d) If, despite the final determination of the appropriate
Department official designated in Sec. 5.44, a court of competent
jurisdiction or other appropriate authority orders the appearance and
expert or opinion testimony of a current or former Department employee,
that person shall immediately inform the Office of the General Counsel
of such order. If the Office of the General Counsel determines that no
further legal review of or challenge to the court's order will be made,
the Department employee, or former employee, shall comply with the
order. If so directed by the Office of the General Counsel, however, the
employee, or former employee, shall respectfully decline to testify.
Sec. Appendix A to Subpart C of Part 5--Service of Process of Summonses,
Complaints, and Subpoenas
1. Office of the General Counsel--Headquarters
(a) In general. Pursuant to Sec. 5.42, the Office of the General
Counsel Headquarters may accept service of process on behalf of the
Department, including each of its components, regardless of whether such
components are otherwise listed in this appendix.
(b) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, unless an alternative means of service is specified at
https://www.dhs.gov/office-general-counsel, mail summonses and
complaints against the Department or its personnel in their official
capacity by registered or certified mail to Office of the General
Counsel, U.S. Department of Homeland Security, 2707 Martin Luther King
Jr. Ave SE, Washington, DC 20528-0485. To aid in prompt handling of any
summons and complaint, parties are encouraged to also email a copy to
[email protected].
(c) Service of Process for Subpoenas. Pursuant to Sec. 5.43, unless
an alternative means of service is specified at https://www.dhs.gov/
office-general-counsel, deliver service of process to the following
address: Office of the General Counsel, U.S. Department of Homeland
Security, 2707 Martin Luther King Jr. Ave SE, Gate 1, Washington, DC
20016.
2. U.S. Customs & Border Protection (CBP)
(a) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, unless an alternative means of service is specified at
https://www.cbp.gov/service-of-process, mail summonses and complaints
against CBP or its personnel in their official capacity by registered or
certified mail to the following address: Office of Chief Counsel, U.S.
Customs and Border Protection, 1300 Pennsylvania Avenue, Suite 4.4-B,
Washington, DC 20229. To aid in prompt handling of any summons and
complaint, parties are encouraged to also email a copy to CBP-Service-
[email protected].
(b) Service of Process for Subpoenas. Pursuant to Sec. 5.43, unless
an alternative means of service is specified at https://www.cbp.gov/
service-of-process, deliver service of process to the following address:
Office of Chief Counsel, U.S. Customs and Border Protection, 1300
Pennsylvania Avenue, Suite 4.4-B, Washington, DC 20229. To aid in prompt
handling of any subpoena, parties are encouraged to also email a copy to
[email protected].
(c) Field Counsel. CBP field counsel may also accept service of
process at their normal duty station, in their discretion.
3. Cybersecurity and Infrastructure Security Agency (CISA)
(a) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, unless an alternative means of service is specified at
https://www.cisa.gov/contact-us, mail summonses and complaints against
CISA or its personnel in their official capacity by registered or
certified mail to the following address: Office of the Chief Counsel,
Cybersecurity and Infrastructure Security Agency, 1616 Fort Myer Drive,
Arlington, VA 22209. To aid in prompt handling, parties are encouraged
to also email a copy to [email protected].
(b) Service of Process for Subpoenas. Pursuant to Sec. 5.43, unless
an alternative means of service is specified at https://www.cisa.gov/
contact-us, deliver service of process to the following address: Office
of the Chief Counsel, Cybersecurity and Infrastructure Security Agency,
1616 Fort Myer Drive, Arlington, VA 22209. To aid in prompt handling,
parties are encouraged to also email a copy to [email protected].
4. Federal Emergency Management Agency (FEMA)
(a) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, mail summonses and complaints against FEMA or its personnel
in their official capacity by registered or certified mail to the
following address: Office of the Chief Counsel, Federal Emergency
Management Agency, 500 C Street SW, Washington, DC 20472. To aid in
prompt handling of any summons and complaint, parties are encouraged to
also email a copy to [email protected].
(b) Service of Process for Subpoenas. Pursuant to Sec. 5.43,
deliver service of process to the address indicated at 44 CFR 5.83. To
aid in
[[Page 38]]
prompt handling of any summons and complaint, parties are encouraged to
also email a copy to [email protected].
5. Federal Law Enforcement Training Centers (FLETCs)
(a) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, unless an alternative means of service is specified at
https://www.fletc.gov/about/contact-us, mail summonses and complaints
against FLETC or its personnel in their official capacity by registered
or certified mail to the following address: Office of Chief Counsel,
Federal Law Enforcement Training Centers, 1131 Chapel Crossing Rd.,
Bldg. 93, Glynco, GA 31524.
(b) Service of Process for Subpoenas. Pursuant to Sec. 5.43, unless
an alternative means of service is specified at https://www.fletc.gov/
about/contact-us, deliver service of process to the following address:
Office of Chief Counsel, Federal Law Enforcement Training Centers, 1131
Chapel Crossing Rd., Bldg. 93, Glynco, GA 31524.
6. United States Immigration & Customs Enforcement (ICE)
(a) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, mail summonses and complaints against ICE or its personnel
in their official capacity by registered or certified mail to the
following address: U.S. Immigration and Customs Enforcement, Office of
the Principal Legal Advisor, 500 12th St. SW, Mail Stop 5900,
Washington, DC 20536-5900. To aid in prompt handling, parties are
encouraged to email a courtesy copy of a summons or complaint properly
served in accordance with local rules and this guidance to
[email protected].
(b) Service of Process for Subpoenas. Pursuant to Sec. 5.43,
deliver service of process to the following address: U.S. Immigration
and Customs Enforcement, Office of the Principal Legal Advisor, 500 12th
St. SW, Mail Stop 5900, Washington, DC 20536-5900. To aid in prompt
handling, parties are encouraged to email a courtesy copy to
[email protected].
7. Office of Inspector General (OIG)
(a) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, unless an alternative means of service is specified at
https://www.oig.dhs.gov/about/contact, mail summonses and complaints
against OIG or its personnel in their official capacity by registered or
certified mail to the following address: Office of Inspector General,
245 Murray Lane SW, Stop 0305, Washington, DC 20528.
(b) Service of Process for Subpoenas. Pursuant to Sec. 5.43, unless
an alternative means of service is specified at https://www.oig.dhs.gov/
about/contact, deliver service of process to the following address:
Office of Inspector General, 245 Murray Lane SW, Stop 0305, Washington,
DC 20528.
8. Transportation Security Administration (TSA)
(a) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, unless an alternative means of service is specified at
https://www.TSA.gov/contacts, mail summonses and complaints against TSA
or its personnel in their official capacity by registered or certified
mail to the following address: TSA- Office of Chief Counsel (TSA-2), 601
S 12th Street, Arlington, VA 20598-6002. To aid in prompt handling of
any summons and complaint, parties are encouraged to also email a copy
to [email protected].
(b) Service of Process for Subpoenas. Pursuant to Sec. 5.43, unless
an alternative means of service is specified at https://www.TSA.gov/
contacts, deliver service of process to the following address: TSA-
Office of Chief Counsel (TSA-2), 601 S 12th Street, Arlington, VA 20598-
6002. Subpoenas or other judicial process directed to TSA or its
officers/employees in an official capacity (not addressed in paragraph
(a) of item 7 of this appendix) may also be sent by email to
[email protected].
(c) Field counsel. TSA field counsel may also accept service of
process at their normal duty station, in their discretion.
9. U.S. Citizenship & Immigration Services (USCIS)
(a) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, unless an alternative means of service is specified at
https://www.uscis.gov/about-us/contact-us, mail summonses and complaints
against USCIS or its personnel in their official capacity by registered
or certified mail to the following address: USCIS, Office of the Chief
Counsel, 20 Massachusetts Ave. NW, Room 4210, Washington, DC 20529. To
aid in prompt handling of any summons and complaint, parties are
encouraged to also email a copy to [email protected].
(b) Service of Process for Subpoenas. Pursuant to Sec. 5.43, unless
an alternative means of service is specified at https://www.uscis.gov/
about-us/contact-us, deliver service of process to the following
address: USCIS, Office of the Chief Counsel, 20 Massachusetts Ave. NW,
Room 4210, Washington, DC 20529. To aid in prompt handling of subpoenas,
parties are encouraged to also email a copy to
[email protected].
10. U.S. Coast Guard (USCG)
(a) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, unless an alternative means of service is specified at
https://www.uscg.mil/Resources/Legal/, mail summonses and complaints
against USCG or its
[[Page 39]]
personnel in their official capacity by registered or certified mail to
the following address: Commandant CG-LCL, US Coast Guard HQ, 2703 Martin
Luther King Jr. Ave. SE, Stop 7213, Washington, DC 20593-7213.
(b) Service of Process for Subpoenas. Pursuant to Sec. 5.43, unless
an alternative means of service is specified at https://www.uscg.mil/
Resources/Legal/, deliver service of process to the following address:
Commandant CG-LCL, US Coast Guard HQ Visitor Center, Gate 4, 1790 Ash
St. SE, Washington, DC 20032.
11. United States Secret Service (USSS)
(a) Service of Process of Summonses and Complaints. Pursuant to
Sec. 5.42, unless an alternative means of service is specified at
https://www.secretservice.gov/contact/, mail summonses and complaints
against USSS or its personnel in their official capacity by registered
or certified mail to the following address: Communications Center, 245
Murray Lane SW, Building T5, Washington, DC 20223, Attn: Office of Chief
Counsel.
(b) Service of Process for Subpoenas. Pursuant to Sec. 5.43, unless
an alternative means of service is specified at https://
www.secretservice.gov/contact/, deliver service of process to the
following address: Communications Center, 245 Murray Lane SW, Building
T5, Washington, DC 20223, Attn: Office of Chief Counsel.
[85 FR 22582, Apr. 23, 2020]
Sec. Appendix A to Part 5--FOIA/Privacy Act Offices of the Department of
Homeland Security
I. For the following Headquarters components of the Department of
Homeland Security, FOIA and Privacy Act requests should be sent to the
Departmental Disclosure Office, Department of Homeland Security,
Washington, DC 20528. The Headquarters components are:
A
Office of the Secretary
Office of the Deputy Secretary
Office of the Under Secretary for Management
B
Office of the General Counsel
Office of the Inspector General
Office of International Affairs
Office of Legislative Affairs
Office of Public Affairs
Office of National Capital Region Coordination
Office of Professional Responsibility
Office for State and Local Government Coordination
C
Directorate of Border and Transportation Security
Directorate of Emergency Preparedness and Response
Directorate of Information Analysis and Infrastructure Protection
Directorate of Science and Technology
II. Requests made to components that have transferred or will
transfer into the Department of Homeland Security, should be sent as
follows:
A. Former components of the Department of Agriculture:
1. Animal and Plant Health Inspection Service, USDA, APHIS, LPA, FOIA,
4700 River Road, Unit 50, Riverdale, MD 20737-1232
2. Plum Island Animal Disease Center; Submit request to the APHIS
address above or, FOIA Coordinator, USDA-REE-ARS-Information Staff, 5601
Sunnyside Avenue, Bldg. 1, Room 2248, Mail Stop 5128, Beltsville, MD
20705-5128
B. Former components of the Department of Commerce:
1. Critical Infrastructure Assurance Office (A former office of the
Bureau of Industry and Security); Freedom of Information Coordinator,
Bureau of Industry and Security, Room 6883, U.S. Department of Commerce,
Washington, DC 20230
2. FIRESTAT (formerly the Integrated Hazard Information System of the
National Oceanic and Atmospheric Administration), National Oceanic and
Atmospheric Administration, Public Reference Facility (OFAx2), 1315
East-West Highway (SSMC3), Room 10703, Silver Spring, MD 20910
C. Former components of the Department of Defense:
1. National Communications Service (A former component of the Defense
Information Systems Agency), Defense Information Systems Agency, ATTN:
RGC/FOIA Officer, 701 S. Courthouse Rd., Arlington, VA 22204-2199
D. Former components and programs of the Department of Energy:
The address for each component and program listed below is: U.S.
Department of Energy, 1000 Independence Avenue, SW., Washington, DC
20585
1. Energy Assurance Office
2. Environmental Measurements Laboratory
3. Nuclear Incident Response Team
4. The chemical and biological national security and supporting
programs and activities of the non-proliferation and verification
research and development program.
5. The life sciences activities related to microbial pathogens of
Biological and Environmental Research Program.
6. The nuclear smuggling programs and activities within the
proliferation detection
[[Page 40]]
program of the non-proliferation and verification research and
development program.
7. The nuclear assessment program and activities of the assessment,
detection, and cooperation program of the international materials
protection and cooperation program, and the advanced scientific
computing research program and activities at Lawrence Livermore National
Laboratory.
8. National Infrastructure Simulation and Analysis Center
E. Former components of the Department of Health and Human Services:
1. The address for each component and program listed below is:
Department of Health and Human Services, Freedom of Information Officer,
Room 645-F, Hubert H. Humphrey Building, Independence Avenue, SW.,
Washington, DC 20201;
a. Metropolitan Medical Response System,
b. National Disaster Medical System, and
c. Office of Emergency Preparedness
d. Strategic National Stockpile
2. Centers for Disease Control and Agency for Toxic Substances and
Disease Registry, Attn: FOI Office, MS-D54, 1600 Clifton Road, NE.,
Atlanta, GA 30333.
F. Former components of the Department of Justice:
1. Immigration and Naturalization Service, Director, Freedom of
Information/Privacy Act Program, Department of Justice, 425 Eye Street,
NW., 2nd Floor, ULLICO Building, Washington, DC 20536 (for field
offices, consult your phone book).
2. The address for each component and program listed below is:
Federal Bureau of Investigation, Chief, FOIPA Section, 935 Pennsylvania
Avenue, NW., Department of Justice, Washington, DC 20535-0001;
a. National Infrastructure Protection Center,
b. National Domestic Preparedness Office, and
c. Domestic Emergency Support Team.
3. Office of Domestic Preparedness, U.S. Department of Justice,
Office of Justice Programs, Office of the General Counsel, Attention:
FOIA Staff, 810 7th Street, NW., Room 5400, Washington, DC 20531.
G. Former components of the Department of State:
Visa Office, Information and Privacy Coordinator, Office of Information
Resources, Management Programs and Services, A/RPS/IPS, SA-2, Department
of State, Washington, DC 20522-6001, Re: Freedom of Information Act
Request.
H. Former components of the Department of Transportation:
1. Federal Aviation Administration, National Freedom of Information Act
Staff, ARC-40, 800 Independence Avenue, SW., Washington, DC 20591 (for
regional centers, consult your phone book).
2. Transportation Security Administration, TSA-1, FOIA Division, 400
Seventh Street, SW., Washington, DC 20590
3. United States Coast Guard, HQ USCG Commandant, G-CIM, 2100 Second
Street, SW., Washington, DC 20593-0001 (for district offices, consult
your phone book).
I. Former components of the Department of Treasury:
1. Federal Law Enforcement Training Center, Freedom of Information Act
Officer, Townhouse 389, Glynco, GA 31524
2. U.S. Customs Service, Freedom of Information Act Request, Mint Annex,
1300 Pennsylvania Avenue, NW., Washington, DC 20229 (for field offices,
consult your phone book).
3. U.S. Secret Service, Freedom of Information Act Request, 950 H
Street, NW., Suite 3000, Washington, DC 20223, e-mail
[email protected]. Appeals should be addressed to the Deputy Director,
United States Secret Service, Freedom of Information and Privacy Act
Appeal Officer, at these same contact points.
J. Federal Emergency Management Agency: Federal Emergency Management
Agency, Office of General Counsel, 500 C Street, SW., Room 840,
Washington, DC 20472 (for regional offices, consult your phone book).
K. Former components of the General Services Administration:
1. For the Federal Computer Incident Response Center and the Federal
Protective Service: Chief, FOIA Information Management Branch, GSA
(CAIM), 1800 F Street, NW., Washington, DC 20405 (for regional offices,
consult your phone book).
Sec. Appendix B to Part 5 [Reserved]
Sec. Appendix C to Part 5--DHS Systems of Records Exempt From the
Privacy Act
This appendix implements provisions of the Privacy Act of 1974 that
permit the Department of Homeland Security (DHS) to exempt its systems
of records from provisions of the Act. During the course of normal
agency operations, exempt materials from other systems of records may
become part of the records in these and other DHS systems. To the extent
that copies of records from other exempt systems of records are entered
into any DHS system, DHS hereby claims 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.
Portions of the following DHS systems of records are exempt from
certain provisions of the Privacy Act pursuant to 5 U.S.C. 552(j) and
(k):
[[Page 41]]
1. The DHS/ALL--001 Freedom of Information Act and Privacy Act
Records System of Records consists of electronic and paper records and
will be used by DHS and its components. The DHS/ALL--001 Freedom of
Information Act and Privacy Act Records 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;
and protection of the President of the United States or other
individuals pursuant to section 3056 and 3056A of Title 18. The DHS/
ALL--001 Freedom of Information Act and Privacy Act Records 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 the
following provisions of the Privacy Act, subject to limitations set
forth in 5 U.S.C. 552a(c)(3) and (4): (d); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12); (f); (g)(1);
and (h) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of
Homeland Security has exempted 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. Sec. 552a(k)(1), (k)(2), (k)(3), (k)(5), and
(k)(6). 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, 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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement 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
[[Page 42]]
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 (e)(12) (Computer Matching) if the agency is a
recipient agency or a source agency in a matching program with a non-
Federal agency, with respect to any establishment or revision of a
matching program, at least 30 days prior to conducting such program,
publish in the Federal Register notice of such establishment or
revision.
(j) From subsection (g)(1) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
(k) From subsection (h) (Legal Guardians) the parent of any minor,
or the legal guardian of any individual who has been declared to be
incompetent due to physical or mental incapacity or age by a court of
competent jurisdiction, may act on behalf of the individual.
2. The DHS/ALL-029 Civil Rights and Civil Liberties Records System
of Records consists of electronic and paper records and will be used by
DHS and its components. The DHS/ALL-029 Civil Rights and Civil Liberties
Records 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 thereunder; national
security and intelligence activities; and protection of the President of
the United States or other individuals pursuant to Section 3056 and
3056A of Title 18. The DHS/ALL-029 Civil Rights and Civil Liberties
Records 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 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. Sec. 552a(k)(1), (k)(2),
(k)(3), and (k)(5). 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 individual who
is 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 individual
who is 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.
3. DHS-ALL-005, Redress and Response Records System. A portion of
the following system of records is exempt from 5 U.S.C. 552a(c)(3) and
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I),
(5), and (8); (f), and (g); however, these exemptions apply only to the
extent that information in this system
[[Page 43]]
records is recompiled or is created from information contained in other
systems of records subject to such exemptions pursuant to 5 U.S.C.
552a(j)(2), (k)(1), (k)(2), and (k)(5). Further, no exemption shall be
asserted with respect to information submitted by and collected from the
individual or the individual's representative in the course of any
redress process associated with this system of records. After conferring
with the appropriate component or agency, DHS may waive applicable
exemptions in appropriate circumstances and where it would not appear to
interfere with or adversely affect the law enforcement or national
security purposes of the systems from which the information is
recompiled or in which it is contained. Exemptions from the above
particular subsections are justified, on a case-by-case basis to be
determined at the time a request is made, when information in this
system records is recompiled or is created from information contained in
other systems of records subject to exemptions for the following
reasons:
(a) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him or her
would specifically reveal any investigative interest in the individual.
Revealing this information could reasonably be expected to compromise
ongoing efforts to investigate a known or suspected terrorist by
notifying the record subject that he or she is under investigation. This
information could also permit the record subject to take measures to
impede the investigation, e.g., destroy evidence, intimidate potential
witnesses, or flee the area to avoid or impede the investigation.
(b) From subsection (c)(4) because portions of this system are
exempt from the access and amendment provisions of subsection (d).
(c) From subsections (d)(1), (2), (3), and (4) because these
provisions concern individual access to and amendment of certain records
contained in this system, including law enforcement counterterrorism,
investigatory, and intelligence records. Compliance with these
provisions could alert the subject of an investigation of the fact and
nature of the investigation, and/or the investigative interest of
intelligence or law enforcement agencies; compromise sensitive
information related to national security; interfere with the overall law
enforcement process by leading to the destruction of evidence, improper
influencing of witnesses, fabrication of testimony, and/or flight of the
subject; could identify a confidential source or disclose information
which would constitute an unwarranted invasion of another's personal
privacy; reveal a sensitive investigative or intelligence technique; or
constitute a potential danger to the health or safety of law enforcement
personnel, confidential informants, and witnesses. Amendment of these
records would interfere with ongoing counterterrorism, law enforcement,
or intelligence investigations and analysis activities and impose an
impossible administrative burden by requiring investigations, analyses,
and reports to be continuously reinvestigated and revised.
(d) From subsection (e)(1) because it is not always possible for DHS
or other agencies to know in advance what information is relevant and
necessary for it to complete an identity comparison between the
individual seeking redress and a known or suspected terrorist. Also,
because DHS and other agencies may not always know what information
about an encounter with a known or suspected terrorist will be relevant
to law enforcement for the purpose of conducting an operational
response.
(e) From subsection (e)(2) because application of this provision
could present a serious impediment to counterterrorism, law enforcement,
or intelligence efforts in that it would put the subject of an
investigation, study, or analysis on notice of that fact, thereby
permitting the subject to engage in conduct designed to frustrate or
impede that activity. The nature of counterterrorism, law enforcement,
or intelligence investigations is such that vital information about an
individual frequently can be obtained only from other persons who are
familiar with such individual and his/her activities. In such
investigations it is not feasible to rely upon information furnished by
the individual concerning his own activities.
(f) From subsection (e)(3), to the extent that this subsection is
interpreted to require DHS to provide notice to an individual if DHS or
another agency receives or collects information about that individual
during an investigation or from a third party. Should the subsection be
so interpreted, exemption from this provision is necessary to avoid
impeding counterterrorism, law enforcement, or intelligence efforts by
putting the subject of an investigation, study, or analysis on notice of
that fact, thereby permitting the subject to engage in conduct intended
to frustrate or impede that activity.
(g) From subsections (e)(4)(G), (H) and (I) (Agency Requirements)
because portions of this system are exempt from the access and amendment
provisions of subsection (d).
(h) From subsection (e)(5) because many of the records in this
system coming from other system of records are derived from other
domestic and foreign agency record systems and therefore it is not
possible for DHS to vouch for their compliance with this provision;
however, the DHS has implemented internal quality assurance procedures
to ensure that data used in the redress process is
[[Page 44]]
as thorough, accurate, and current as possible. In addition, in the
collection of information for law enforcement, counterterrorism, and
intelligence purposes, it is impossible to determine in advance what
information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light. The restrictions imposed by (e)(5) would limit the ability of
those agencies' trained investigators and intelligence analysts to
exercise their judgment in conducting investigations and impede the
development of intelligence necessary for effective law enforcement and
counterterrorism efforts. The DHS has, however, implemented internal
quality assurance procedures to ensure that the data used in the redress
process is as thorough, accurate, and current as possible.
(i) From subsection (e)(8) because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on DHS and other agencies and could
alert the subjects of counterterrorism, law enforcement, or intelligence
investigations to the fact of those investigations when not previously
known.
(j) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of subsection
(d).
(k) From subsection (g) to the extent that the system is exempt from
other specific subsections of the Privacy Act.
4. The Department of Homeland Security Automated Biometric
Identification System (IDENT) consists of electronic and paper records
and will be used by DHS and its components. IDENT is the primary
repository of biometric 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 (including the
immigration law); investigations, inquiries, and proceedings thereunder;
and national security and intelligence activities. IDENT is a
centralized and dynamic DHS-wide biometric database that also contains
limited biographic and encounter history information needed to place the
biometric information in proper context. The information 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.
Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act,
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4);
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8);
(f)(2) through (5); and (g). Pursuant to 5 U.S.C. 552a(k)(2), this
system is exempt from the following provisions of the Privacy Act,
subject to the limitations set forth in those subsections: 5 U.S.C. 552a
(c)(3), (d), (e)(1), (e)(4)(G), and (e)(4)(H). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
[[Page 45]]
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise the existence of a confidential investigation or reveal the
identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements), and
(f)(2 through 5) (Agency Rules) because portions of this system are
exempt from the individual access provisions of subsection (d) and
thereby would not require DHS to establish requirements or rules for
records which are exempted from access.
(g) From subsection (e)(5) (Collection of Information) because in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act.
5. The DHS/OIG-002 Investigative Records System of Records consists
of electronic and paper records used by the DHS OIG. The DHS/OIG-002
Investigative Records 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;
and national security and intelligence activities. The DHS/OIG-002
Investigative Records System of Records contains information that is
collected by, on behalf of, in support of, or in cooperation with DHS
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 the following provisions of the Privacy Act, subject to
limitations set forth in 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) and (e)(8); (f); and (g)
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland
Security has exempted 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); and (f) pursuant to 5 U.S.C.
552a(k)(1), (k)(2) and (k)(5). 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 (c)(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 the 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,
tamper with witnesses or evidence, and 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 the 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, tamper with witnesses or evidence, and
avoid detection or apprehension. Amendment of the records could
interfere with ongoing investigations and law enforcement activities and
would impose an impossible administrative burden by requiring
investigations to be continuously 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 subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation would alert the subject as to the nature or
existence of an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: revealing the existence of an otherwise
confidential investigation and thereby providing
[[Page 46]]
an opportunity for the subject of an investigation to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative efforts; revealing the identity of witnesses in
investigations thereby providing an opportunity for the subjects of the
investigations or others to harass, intimidate, or otherwise interfere
with the collection of evidence or other information from such
witnesses; or revealing the identity of confidential informants, which
would negatively affect the informants' usefulness in any ongoing or
future investigations and discourage members of the public from
cooperating as confidential informants in any future investigations.
(f) From subsections (e)(4)(G) and (e)(4)(H) (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 rules or
procedures with respect to such access. Providing notice to individuals
with respect to existence of records pertaining to them in this 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, potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because in
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 (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' 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) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act
relating to individuals' rights to access and amend their records
contained in the system. Therefore, DHS is not required to establish
rules or procedures pursuant to which individuals may seek a civil
remedy for the agency's refusals to amend a record; refusal to comply
with a request for access to records; failure to maintain accurate,
relevant, timely, and complete records; or failure to otherwise comply
with an individual's right to access or amend records.
6. The Immigration and Customs Enforcement (ICE) Pattern Analysis
and Information Collection (ICEPIC) System consists of electronic and
paper records and will be used by DHS and its components. ICEPIC 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 (including the immigration law);
investigations, inquiries, and proceedings there under; and national
security and intelligence activities. ICEPIC 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.
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act,
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4);
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8);
(f), and (g). Pursuant to 5 U.S.C. 552a(k)(2), this system is exempt
from the following provisions of the Privacy Act, subject to the
limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), (d),
(e)(1), (e)(4)(G), (e)(4)(H), and (f). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously reinvestigated. In addition,
permitting access and amendment to such information could
[[Page 47]]
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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G) and (H) (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; Refusal to comply with a request for access to
records; failure to maintain accurate, relevant timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
7. The Office of Intelligence and Analysis (I&A) Enterprise Records
System (ERS) consists of records including intelligence information and
other properly acquired information received from agencies and
components of the federal government, foreign governments, organizations
or entities, international organizations, state and local government
agencies (including law enforcement agencies), and private sector
entities, as well as information provided by individuals, regardless of
the medium used to submit the information or the agency to which it was
submitted. This system also contains: Information regarding persons on
watch lists with known or suspected links to terrorism; the results of
intelligence analysis and reporting; ongoing law enforcement
investigative information, information systems security analysis and
reporting; active immigration, customs, border and transportation,
security related records; historical law enforcement, operational,
immigration, customs, border and transportation security, and other
administrative records; relevant and appropriately acquired financial
information; and public-source data such as that contained in media
reports and commercially available databases, as appropriate. Data about
the providers of information, including the means of transmission of the
data, is also retained.
(a) Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), and (5), this system
of records is exempt from 5 U.S.C. 552a(c)(3), (d)(1), (2), (3), (4),
and (5), (e)(1), (e)(4)(G), (H), and (I), and (f). These exemptions
apply only to the extent that information in this system is subject to
exemption. Where compliance would not appear to interfere with or
adversely affect the intelligence, counterterrorism, homeland security,
and related law enforcement purposes
[[Page 48]]
of this system, the applicable exemption may be waived by DHS.
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) (Accounting for Disclosures) because
making available to a record subject the accounting of disclosures from
records concerning him/her would specifically reveal any interest in the
individual of an intelligence, counterterrorism, homeland security, or
related investigative nature. Revealing this information could
reasonably be expected to compromise ongoing efforts of the Department
to identify, understand, analyze, investigate, and counter the
activities of:
(i) Known or suspected terrorists and terrorist groups;
(ii) Groups or individuals known or believed to be assisting or
associated with known or suspected terrorists or terrorist groups;
(iii) Individuals known, believed to be, or suspected of being
engaged in activities constituting a threat to homeland security,
including (1) activities which impact or concern the security, safety,
and integrity of our international borders, including any illegal
activities that either cross our borders or are otherwise in violation
of the immigration or customs laws and regulations of the United States;
(2) activities which could reasonably be expected to assist in the
development or use of a weapon of mass effect; (3) activities meant to
identify, create, or exploit the vulnerabilities of, or undermine, the
``key resources'' (as defined in section 2(9) of the Homeland Security
Act of 2002) and ``critical infrastructure'' (as defined in 42 U.S.C.
5195c(c)) of the United States, including the cyber and national
telecommunications infrastructure and the availability of a viable
national security and emergency preparedness communications
infrastructure; (4) activities detrimental to the security of
transportation and transportation systems; (5) activities which violate
or are suspected of violating the laws relating to counterfeiting of
obligations and securities of the United States and other financial
crimes, including access device fraud, financial institution fraud,
identity theft, computer fraud; and computer-based attacks on our
nation's financial, banking, and telecommunications infrastructure; (6)
activities, not wholly conducted within the United States, which violate
or are suspected of violating the laws which prohibit the production,
transfer, or sale of narcotics or substances controlled in accordance
with Title 21 of the United States Code, or those associated activities
otherwise prohibited by Titles 21 and 46 of the United States Code; (7)
activities which impact, concern, or otherwise threaten the safety and
security of the President and Vice President, their families, heads of
state, and other designated individuals; the White House, Vice
President's residence, foreign missions, and other designated buildings
within the United States; (8) activities which impact, concern, or
otherwise threaten domestic maritime safety and security, maritime
mobility and navigation, or the integrity of the domestic maritime
environment; (9) activities which impact, concern, or otherwise threaten
the national operational capability of the Department to respond to
natural and manmade major disasters and emergencies, including acts of
terrorism; (10) activities involving the importation, possession,
storage, development, or transportation of nuclear or radiological
material without authorization or for use against the United States;
(iv) Foreign governments, organizations, or persons (foreign
powers); and
(v) Individuals engaging in intelligence activities on behalf of a
foreign power or terrorist group.
Thus, by notifying the record subject that he/she is the focus of
such efforts or interest on the part of DHS, or other agencies with whom
DHS is cooperating and to whom the disclosures were made, this
information could permit the record subject to take measures to impede
or evade such efforts, including the taking of steps to deceive DHS
personnel and deny them the ability to adequately assess relevant
information and activities, and could inappropriately disclose to the
record subject the sensitive methods and/or confidential sources used to
acquire the relevant information against him/her. Moreover, where the
record subject is the actual target of a law enforcement investigation,
this information could permit him/her to take measures to impede the
investigation, for example, by destroying evidence, intimidating
potential witnesses, or avoiding detection or apprehension.
(2) From subsections (d)(1), (2), (3), and (4) (Access to Records)
because these provisions concern individual rights of access to and
amendment of records (including the review of agency denials of either)
contained in this system, which consists of intelligence,
counterterrorism, homeland security, and related investigatory records
concerning efforts of the Department, as described more fully in
subsection (b)(1), above. Compliance with these provisions could inform
or alert the subject of an intelligence, counterterrorism, homeland
security, or investigatory effort undertaken on behalf of the
Department, or by another agency with whom DHS is cooperating, of the
fact and nature of such efforts, and/or the relevant intelligence,
counterterrorism, homeland security, or investigatory interest of DHS
and/or other intelligence, counterterrorism, or law enforcement
agencies. Moreover, compliance could
[[Page 49]]
also compromise sensitive information either classified in the interest
of national security, or which otherwise requires, as appropriate,
safeguarding and protection from unauthorized disclosure; identify a
confidential source or disclose information which would constitute an
unwarranted invasion of another individual's personal privacy; reveal a
sensitive intelligence or investigative technique or method, including
interfering with intelligence or law enforcement investigative processes
by permitting the destruction of evidence, improper influencing or
intimidation of witnesses, fabrication of statements or testimony, and
flight from detection or apprehension; or constitute a potential danger
to the health or safety of intelligence, counterterrorism, homeland
security, and law enforcement personnel, confidential sources and
informants, and potential witnesses. Amendment of the records would
interfere with ongoing intelligence, counterterrorism, homeland
security, and law enforcement investigations and activities, including
incident reporting and analysis activities, and impose an impossible
administrative burden by requiring investigations, reports, and analyses
to be continuously reinvestigated and revised.
(3) From subsection (e)(1) (Relevant and Necessary) because it is
not always possible for DHS to know in advance of its receipt the
relevance and necessity of each piece of information it acquires in the
course of an intelligence, counterterrorism, or investigatory effort
undertaken on behalf of the Department, or by another agency with whom
DHS is cooperating. In the context of the authorized intelligence,
counterterrorism, and investigatory activities undertaken by DHS
personnel, relevance and necessity are questions of analytic judgment
and timing, such that what may appear relevant and necessary when
acquired ultimately may be deemed unnecessary upon further analysis and
evaluation. Similarly, in some situations, it is only after acquired
information is collated, analyzed, and evaluated in light of other
available evidence and information that its relevance and necessity can
be established or made clear. Constraining the initial acquisition of
information included within the ERS in accordance with the relevant and
necessary requirement of subsection (e)(1) could discourage the
appropriate receipt of and access to information which DHS and I&A are
otherwise authorized to receive and possess under law, and thereby
impede efforts to detect, deter, prevent, disrupt, or apprehend
terrorists or terrorist groups, and/or respond to terrorist or other
activities which threaten homeland security. Notwithstanding this
claimed exemption, which would permit the acquisition and temporary
maintenance of records whose relevance to the purpose of the ERS may be
less than fully clear, DHS will only disclose such records after
determining whether such disclosures are themselves consistent with the
published ERS routine uses. Moreover, it should be noted that, as
concerns the receipt by I&A, for intelligence purposes, of information
in any record which identifies a U.S. Person, as defined in Executive
Order 12333, as amended, such receipt, and any subsequent use or
dissemination of that identifying information, is undertaken consistent
with the procedures established and adhered to by I&A pursuant to that
Executive Order. Specifically, I&A intelligence personnel may acquire
information which identifies a particular U.S. Person, retain it within
or disseminate it from ERS, as appropriate, only when it is determined
that the personally identifying information is necessary for the conduct
of I&A's functions, and otherwise falls into one of a limited number of
authorized categories, each of which reflects discrete activities for
which information on individuals would be utilized by the Department in
the overall execution of its statutory mission.
(4) From subsections (e)(4) (G), (H) and (I) (Access), and (f)
(Agency Rules), inasmuch as it is unnecessary for the publication of
rules and procedures contemplated therein since the ERS, pursuant to
subsections (1) and (2), above, will be exempt from the underlying
duties to provide to individuals notification about, access to, and the
ability to amend or correct the information pertaining to them in, this
system of records. Furthermore, to the extent that subsection (e)(4)(I)
is construed to require more detailed disclosure than the information
accompanying the system notice for ERS, as published in today's Federal
Register, exemption from it is also necessary to protect the
confidentiality, privacy, and physical safety of sources of information,
as well as the methods for acquiring it. Finally, greater specificity
concerning the description of categories of sources of properly
classified records could also compromise or otherwise cause damage to
the national or homeland security.
8. The information in MAGNET establishes Maritime Domain Awareness.
Maritime Domain Awareness is the collection of as much information as
possible about the maritime world. In other words, MAGNET establishes a
full awareness of the entities (people, places, things) and their
activities within the maritime industry. MAGNET collects the information
and connects the information in order to fulfill this need.
Coast Guard Intelligence (through MAGNET) will provide awareness to
the field as well as to strategic planners by aggregating data from
existing sources internal and external to the Coast Guard or DHS. MAGNET
will correlate and provide the medium to display information such as
ship registry, current ship position, crew background, passenger lists,
port history, cargo, known
[[Page 50]]
criminal vessels, and suspect lists. Coast Guard Intelligence (CG-2)
will serve as MAGNET's executive agent and will share appropriate
aggregated data to other law enforcement and intelligence agencies.
(a) Pursuant to 5 U.S.C. 522a(j)(2), (k)(1), and (k)(2) this system
of records is exempt from 5 U.S.C. 552a(c)(3) and (4), (d)(1), (d)(2),
(d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4) (G), (H), and (I), e(5),
e(8), e(12), (f), and (g). These exemptions apply only to the extent
that information in this system is subject to exemption. Where
compliance would not appear to interfere with or adversely affect the
intelligence, counterterrorism, homeland security, and related law
enforcement purposes of this system, the applicable exemption may be
waived by DHS.
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) (Accounting of Certain Disclosures)
because making available to a record subject the accounting of
disclosures from records concerning him/her would specifically reveal
any interest in the individual of an intelligence, counterterrorism,
homeland security, law enforcement or related investigative nature.
Revealing this information could reasonably be expected to compromise
ongoing efforts of the Department to identify, understand, analyze,
investigate, and counter the activities of:
(i) Known or suspected terrorists and terrorist groups;
(ii) Groups or individuals known or believed to be assisting or
associated with known or suspected terrorists or terrorist groups;
(iii) Individuals known, believed to be, or suspected of being
engaged in activities constituting a threat to homeland security,
including (1) activities which impact or concern the security, safety,
and integrity of our international borders, including any illegal
activities that either cross our borders or are otherwise in violation
of the immigration or customs laws and regulations of the United States;
(2) activities which could reasonably be expected to assist in the
development or use of a weapon of mass effect; (3) activities meant to
identify, create, or exploit the vulnerabilities of, or undermine, the
``key resources'' (as defined in section 2(9) of the Homeland Security
Act of 2002) and ``critical infrastructure'' (as defined in 42 U.S.C.
5195c(c)) of the United States, including the cyber and national
telecommunications infrastructure and the availability of a viable
national security and emergency preparedness communications
infrastructure; (4) activities detrimental to the security of
transportation and transportation systems; (5) activities which violate
or are suspected of violating the laws relating to counterfeiting of
obligations and securities of the United States and other financial
crimes, including access device fraud, financial institution fraud,
identity theft, computer fraud; and computer-based attacks on our
nation's financial, banking, and telecommunications infrastructure; (6)
activities, not wholly conducted within the United States, which violate
or are suspected of violating the laws which prohibit the production,
transfer, or sale of narcotics or substances controlled in accordance
with Title 21 of the United States Code, or those associated activities
otherwise prohibited by Titles 21 and 46 of the United States Code; (7)
activities which impact, concern, or otherwise threaten the safety and
security of the President and Vice President, their families, heads of
state, and other designated individuals; the White House, Vice
President's residence, foreign missions, and other designated buildings
within the United States; (8) activities which impact, concern, or
otherwise threaten domestic maritime safety and security, maritime
mobility and navigation, or the integrity of the domestic maritime
environment; (9) activities which impact, concern, or otherwise threaten
the national operational capability of the Department to respond to
natural and manmade major disasters and emergencies, including acts of
terrorism; (10) activities involving the importation, possession,
storage, development, or transportation of nuclear or radiological
material without authorization or for use against the United States;
(iv) Foreign governments, organizations, or persons (foreign
powers); and
(v) Individuals engaging in intelligence activities on behalf of a
foreign power or terrorist group.
Thus, by notifying the record subject that he/she is the focus of
such efforts or interest on the part of DHS, or other agencies with whom
DHS is cooperating and to whom the disclosures were made, this
information could permit the record subject to take measures to impede
or evade such efforts, including the taking of steps to deceive DHS
personnel and deny them the ability to adequately assess relevant
information and activities, and could inappropriately disclose to the
record subject the sensitive methods and/or confidential sources used to
acquire the relevant information against him/her. Moreover, where the
record subject is the actual target of a law enforcement investigation,
this information could permit him/her to take measures to impede the
investigation, for example, by destroying evidence, intimidating
potential witnesses, or avoiding detection or apprehension.
(2) From subsection (c)(4) (Accounting for Disclosure, notice of
dispute) because certain records in this system are exempt from the
access and amendment provisions of subsection (d), this requirement to
inform any person or other agency about any correction or notation of
dispute that the agency made
[[Page 51]]
with regard to those records, should not apply.
(3) From subsections (d)(1), (2), (3), and (4) (Access to Records)
because these provisions concern individual rights of access to and
amendment of records (including the review of agency denials of either)
contained in this system, which consists of intelligence,
counterterrorism, homeland security, and related investigatory records
concerning efforts of the Department, as described more fully in
subsection (b)(1), above. Compliance with these provisions could inform
or alert the subject of an intelligence, counterterrorism, homeland
security, or investigatory effort undertaken on behalf of the
Department, or by another agency with whom DHS is cooperating, of the
fact and nature of such efforts, and/or the relevant intelligence,
counterterrorism, homeland security, or investigatory interest of DHS
and/or other intelligence, counterterrorism, or law enforcement
agencies. Moreover, compliance could also compromise sensitive
information either classified in the interest of national security, or
which otherwise requires, as appropriate, safeguarding and protection
from unauthorized disclosure; identify a confidential source or disclose
information which would constitute an unwarranted invasion of another
individual's personal privacy; reveal a sensitive intelligence or
investigative technique or method, including interfering with
intelligence or law enforcement investigative processes by permitting
the destruction of evidence, improper influencing or intimidation of
witnesses, fabrication of statements or testimony, and flight from
detection or apprehension; or constitute a potential danger to the
health or safety of intelligence, counterterrorism, homeland security,
and law enforcement personnel, confidential sources and informants, and
potential witnesses. Amendment of the records would interfere with
ongoing intelligence, counterterrorism, homeland security, and law
enforcement investigations and activities, including incident reporting
and analysis activities, and impose an impossible administrative burden
by requiring investigations, reports, and analyses to be continuously
reinvestigated and revised.
(4) From subsection (e)(1) (Relevant and Necessary) because it is
not always possible for DHS to know in advance of its receipt the
relevance and necessity of each piece of information it acquires in the
course of an intelligence, counterterrorism, or investigatory effort
undertaken on behalf of the Department, or by another agency with whom
DHS is cooperating. In the context of the authorized intelligence,
counterterrorism, and investigatory activities undertaken by DHS
personnel, relevance and necessity are questions of analytic judgment
and timing, such that what may appear relevant and necessary when
acquired ultimately may be deemed unnecessary upon further analysis and
evaluation. Similarly, in some situations, it is only after acquired
information is collated, analyzed, and evaluated in light of other
available evidence and information that its relevance and necessity can
be established or made clear. Constraining the initial acquisition of
information included within the MAGNET in accordance with the relevant
and necessary requirement of subsection (e)(1) could discourage the
appropriate receipt of and access to information which DHS and MAGNET
are otherwise authorized to receive and possess under law, and thereby
impede efforts to detect, deter, prevent, disrupt, or apprehend
terrorists or terrorist groups, and/or respond to terrorist or other
activities which threaten homeland security. Notwithstanding this
claimed exemption, which would permit the acquisition and temporary
maintenance of records whose relevance to the purpose of the MAGNET may
be less than fully clear, DHS will only disclose such records after
determining whether such disclosures are themselves consistent with the
published MAGNET routine uses. Moreover, it should be noted that, as
concerns the receipt by USCG, for intelligence purposes, of information
in any record which identifies a U.S. Person, as defined in Executive
Order 12333, as amended, such receipt, and any subsequent use or
dissemination of that identifying information, is undertaken consistent
with the procedures established and adhered to by USCG pursuant to that
Executive Order. Specifically, USCG intelligence personnel may acquire
information which identifies a particular U.S. Person, retain it within
or disseminate it from MAGNET, as appropriate, only when it is
determined that the personally identifying information is necessary for
the conduct of USCG's functions, and otherwise falls into one of a
limited number of authorized categories, each of which reflects discrete
activities for which information on individuals would be utilized by the
Department in the overall execution of its statutory mission.
(5) From subsection (e)(2) (Collection of Information from
Individuals) because application of this provision could present a
serious impediment to counterterrorism or law enforcement efforts in
that it would put the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in conduct
designed to frustrate or impede that activity. The nature of
counterterrorism and law enforcement investigations is such that vital
information about an individual frequently can be obtained only from
other persons who are familiar with such individual and his/her
activities. In such investigations it is not feasible to rely solely
upon information furnished by the individual concerning his own
activities.
[[Page 52]]
(6) From subsection (e)(3) (Notice to Subjects), to the extent that
this subsection is interpreted to require DHS to provide notice to an
individual if DHS or another agency receives or collects information
about that individual during an investigation or from a third party.
Should the subsection be so interpreted, exemption from this provision
is necessary to avoid impeding counterterrorism or law enforcement
efforts by putting the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in conduct
intended to frustrate or impede that activity.
(7) From subsections (e)(4) (G), (H) and (I) (Access), and (f)
(Agency Rules), inasmuch as it is unnecessary for the publication of
rules and procedures contemplated therein since the MAGNET, pursuant to
subsections (3), above, will be exempt from the underlying duties to
provide to individuals notification about, access to, and the ability to
amend or correct the information pertaining to them in, this system of
records. Furthermore, to the extent that subsection (e)(4)(I) is
construed to require more detailed disclosure than the information
accompanying the system notice for MAGNET, as published in today's
Federal Register, exemption from it is also necessary to protect the
confidentiality, privacy, and physical safety of sources of information,
as well as the methods for acquiring it. Finally, greater specificity
concerning the description of categories of sources of properly
classified records could also compromise or otherwise cause damage to
the national or homeland security.
(8) From subsection (e)(5) (Collection of Information) because many
of the records in this system coming from other system of records are
derived from other domestic and foreign agency record systems and
therefore it is not possible for DHS to vouch for their compliance with
this provision; however, the DHS has implemented internal quality
assurance procedures to ensure that data used in its screening processes
is as complete, accurate, and current as possible. In addition, in the
collection of information for law enforcement and counterterrorism
purposes, it is impossible to determine in advance what information is
accurate, relevant, timely, and complete. With the passage of time,
seemingly irrelevant or untimely information may acquire new
significance as further investigation brings new details to light. The
restrictions imposed by (e)(5) would limit the ability of those
agencies' trained investigators and intelligence analysts to exercise
their judgment in conducting investigations and impede the development
of intelligence necessary for effective law enforcement and
counterterrorism efforts.
(9) From subsection (e)(8) (Notice on Individuals) because to
require individual notice of disclosure of information due to compulsory
legal process would pose an impossible administrative burden on DHS and
other agencies and could alert the subjects of counterterrorism or law
enforcement investigations to the fact of those investigations then not
previously known.
(10) From subsection (e)(12) (Matching Agreements) because requiring
DHS to provide notice of alterations to existing matching agreements
would impair DHS operations by indicating which data elements and
information are valuable to DHS's analytical functions, thereby
providing harmful disclosure of information to individuals who would
seek to circumvent or interfere with DHS's missions.
(11) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
9. The Law Enforcement Information Data Base (LEIDB)/Pathfinder is a
historical repository of selected Coast Guard message traffic. LEIDB/
Pathfinder supports law enforcement intelligence activities. LEIDB/
Pathfinder users can query archived message traffic and link relevant
information across multiple data records within LEIDB/Pathfinder. Users
have system tools enabling the user to identify potential relationships
between information contained in otherwise unrelated documents. These
tools allow the analysts to build high precision and low return queries,
which minimize false hits and maximize analyst productivity while
working with unstructured, unformatted, free test documents.
(a) Pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2) certain
records or information in the above mentioned system of records are
exempt from 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4);
(e)(1), (2), (3), (4)(G) through (I), (e)(5), and (8); (f), and (g).
These exemptions apply only to the extent that information in this
system is subject to exemption. Where compliance would not appear to
interfere with or adversely affect the intelligence, counterterrorism,
homeland security, and related law enforcement purposes of this system,
the applicable exemption may be waived by DHS.
(b) Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) (Accounting for Disclosures) because
making available to a record subject the accounting of disclosures from
records concerning him/her would specifically reveal any interest in the
individual of an intelligence, counterterrorism, homeland security, or
related investigative nature. Revealing this information could
reasonably be expected to compromise ongoing efforts of the Department
to identify, understand, analyze, investigate, and counter the
activities of:
(i) Known or suspected terrorists and terrorist groups;
[[Page 53]]
(ii) Groups or individuals known or believed to be assisting or
associated with known or suspected terrorists or terrorist groups;
(iii) Individuals known, believed to be, or suspected of being
engaged in activities constituting a threat to homeland security,
including (1) activities which impact or concern the security, safety,
and integrity of our international borders, including any illegal
activities that either cross our borders or are otherwise in violation
of the immigration or customs laws and regulations of the United States;
(2) activities which could reasonably be expected to assist in the
development or use of a weapon of mass effect; (3) activities meant to
identify, create, or exploit the vulnerabilities of, or undermine, the
``key resources'' (as defined in section 2(9) of the Homeland Security
Act of 2002) and ``critical infrastructure'' (as defined in 42 U.S.C.
5195c(c)) of the United States, including the cyber and national
telecommunications infrastructure and the availability of a viable
national security and emergency preparedness communications
infrastructure; (4) activities detrimental to the security of
transportation and transportation systems; (5) activities which violate
or are suspected of violating the laws relating to counterfeiting of
obligations and securities of the United States and other financial
crimes, including access device fraud, financial institution fraud,
identity theft, computer fraud; and computer-based attacks on our
nation's financial, banking, and telecommunications infrastructure; (6)
activities, not wholly conducted within the United States, which violate
or are suspected of violating the laws which prohibit the production,
transfer, or sale of narcotics or substances controlled in accordance
with Title 21 of the United States Code, or those associated activities
otherwise prohibited by Titles 21 and 46 of the United States Code; (7)
activities which impact, concern, or otherwise threaten the safety and
security of the President and Vice President, their families, heads of
state, and other designated individuals; the White House, Vice
President's residence, foreign missions, and other designated buildings
within the United States; (8) activities which impact, concern, or
otherwise threaten domestic maritime safety and security, maritime
mobility and navigation, or the integrity of the domestic maritime
environment; (9) activities which impact, concern, or otherwise threaten
the national operational capability of the Department to respond to
natural and manmade major disasters and emergencies, including acts of
terrorism; (10) activities involving the importation, possession,
storage, development, or transportation of nuclear or radiological
material without authorization or for use against the United States;
(iv) Foreign governments, organizations, or persons (foreign
powers); and
(v) Individuals engaging in intelligence activities on behalf of a
foreign power or terrorist group.
Thus, by notifying the record subject that he/she is the focus of
such efforts or interest on the part of DHS, or other agencies with whom
DHS is cooperating and to whom the disclosures were made, this
information could permit the record subject to take measures to impede
or evade such efforts, including the taking of steps to deceive DHS
personnel and deny them the ability to adequately assess relevant
information and activities, and could inappropriately disclose to the
record subject the sensitive methods and/or confidential sources used to
acquire the relevant information against him/her. Moreover, where the
record subject is the actual target of a law enforcement investigation,
this information could permit him/her to take measures to impede the
investigation, for example, by destroying evidence, intimidating
potential witnesses, or avoiding detection or apprehension.
(2) From subsection (c)(4) (Accounting for Disclosure, notice of
dispute) because certain records in this system are exempt from the
access and amendment provisions of subsection (d), this requirement to
inform any person or other agency about any correction or notation of
dispute that the agency made with regard to those records, should not
apply.
(3) From subsections (d)(1), (2), (3), and (4) (Access to Records)
because these provisions concern individual rights of access to and
amendment of records (including the review of agency denials of either)
contained in this system, which consists of intelligence,
counterterrorism, homeland security, and related investigatory records
concerning efforts of the Department, as described more fully in
subsection (b)(1), above. Compliance with these provisions could inform
or alert the subject of an intelligence, counterterrorism, homeland
security, or investigatory effort undertaken on behalf of the
Department, or by another agency with whom DHS is cooperating, of the
fact and nature of such efforts, and/or the relevant intelligence,
counterterrorism, homeland security, or investigatory interest of DHS
and/or other intelligence, counterterrorism, or law enforcement
agencies. Moreover, compliance could also compromise sensitive
information either classified in the interest of national security, or
which otherwise requires, as appropriate, safeguarding and protection
from unauthorized disclosure; identify a confidential source or disclose
information which would constitute an unwarranted invasion of another
individual's personal privacy; reveal a sensitive intelligence or
investigative technique or method, including interfering with
[[Page 54]]
intelligence or law enforcement investigative processes by permitting
the destruction of evidence, improper influencing or intimidation of
witnesses, fabrication of statements or testimony, and flight from
detection or apprehension; or constitute a potential danger to the
health or safety of intelligence, counterterrorism, homeland security,
and law enforcement personnel, confidential sources and informants, and
potential witnesses. Amendment of the records would interfere with
ongoing intelligence, counterterrorism, homeland security, and law
enforcement investigations and activities, including incident reporting
and analysis activities, and impose an impossible administrative burden
by requiring investigations, reports, and analyses to be continuously
reinvestigated and revised.
(4) From subsection (e)(1) (Relevant and Necessary) because it is
not always possible for DHS to know in advance of its receipt the
relevance and necessity of each piece of information it acquires in the
course of an intelligence, counterterrorism, or investigatory effort
undertaken on behalf of the Department, or by another agency with whom
DHS is cooperating. In the context of the authorized intelligence,
counterterrorism, and investigatory activities undertaken by DHS
personnel, relevance and necessity are questions of analytic judgment
and timing, such that what may appear relevant and necessary when
acquired ultimately may be deemed unnecessary upon further analysis and
evaluation. Similarly, in some situations, it is only after acquired
information is collated, analyzed, and evaluated in light of other
available evidence and information that its relevance and necessity can
be established or made clear. Constraining the initial acquisition of
information included within the LEIDB in accordance with the relevant
and necessary requirement of subsection (e)(1) could discourage the
appropriate receipt of and access to information which DHS and USCG are
otherwise authorized to receive and possess under law, and thereby
impede efforts to detect, deter, prevent, disrupt, or apprehend
terrorists or terrorist groups, and/or respond to terrorist or other
activities which threaten homeland security. Notwithstanding this
claimed exemption, which would permit the acquisition and temporary
maintenance of records whose relevance to the purpose of the LEIDB may
be less than fully clear, DHS will only disclose such records after
determining whether such disclosures are themselves consistent with the
published LEIDB routine uses. Moreover, it should be noted that, as
concerns the receipt by USCG, for intelligence purposes, of information
in any record which identifies a U.S. Person, as defined in Executive
Order 12333, as amended, such receipt, and any subsequent use or
dissemination of that identifying information, is undertaken consistent
with the procedures established and adhered to by USCG pursuant to that
Executive Order. Specifically, USCG intelligence personnel may acquire
information which identifies a particular U.S. Person, retain it within
or disseminate it from LEIDB, as appropriate, only when it is determined
that the personally identifying information is necessary for the conduct
of USCG's functions, and otherwise falls into one of a limited number of
authorized categories, each of which reflects discrete activities for
which information on individuals would be utilized by the Department in
the overall execution of its statutory mission.
(5) From subsection (e)(2) (Collection of Information from
Individuals) because application of this provision could present a
serious impediment to counterterrorism or law enforcement efforts in
that it would put the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in conduct
designed to frustrate or impede that activity. The nature of
counterterrorism, and law enforcement investigations is such that vital
information about an individual frequently can be obtained only from
other persons who are familiar with such individual and his/her
activities. In such investigations it is not feasible to rely solely
upon information furnished by the individual concerning his own
activities.
(6) From subsection (e)(3) (Notice to Subjects), to the extent that
this subsection is interpreted to require DHS to provide notice to an
individual if DHS or another agency receives or collects information
about that individual during an investigation or from a third party.
Should the subsection be so interpreted, exemption from this provision
is necessary to avoid impeding counterterrorism or law enforcement
efforts by putting the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in conduct
intended to frustrate or impede that activity.
(7) From subsections (e)(4) (G), (H) and (I) (Access), inasmuch as
it is unnecessary for the publication of rules and procedures
contemplated therein since the LEIDB, pursuant to subsections (2) and
(3), above, will be exempt from the underlying duties to provide to
individuals notification about, access to, and the ability to amend or
correct the information pertaining to them in, this system of records.
Furthermore, to the extent that subsection (e)(4)(I) is construed to
require more detailed disclosure than the information accompanying the
system notice for LEIDB, as published in today's Federal Register,
exemption from it is also necessary to protect the confidentiality,
privacy, and physical safety of sources of information, as well as the
methods for acquiring it. Finally, greater specificity concerning the
description of categories of sources of
[[Page 55]]
properly classified records could also compromise or otherwise cause
damage to the national or homeland security.
(8) From subsection (e)(5) (Collection of Information) because many
of the records contained in this system are derived from other domestic
and foreign sources, it is not possible for DHS to vouch for those
records' compliance with this provision; however, the DHS has
implemented internal quality assurance procedures to ensure that data
used in its screening processes is as complete, accurate, and current as
possible. In addition, in the collection of information for law
enforcement and counterterrorism purposes, it is impossible to determine
in advance what information is accurate, relevant, timely, and complete.
With the passage of time, seemingly irrelevant or untimely information
may acquire new significance as further investigation brings new details
to light. The restrictions imposed by (e)(5) would limit the ability of
those agencies' trained investigators and intelligence analysts to
exercise their judgment in conducting investigations and impede the
development of intelligence necessary for effective law enforcement and
counterterrorism efforts.
(9) From subsection (e)(8) (Notice on Individuals) because to
require individual notice of disclosure of information due to compulsory
legal process would pose an impossible administrative burden on DHS and
other agencies and could alert the subjects of counterterrorism or law
enforcement investigations to the fact of those investigations then not
previously known.
(10) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of subsection
(d). Access to, and amendment of, system records that are not exempt or
for which exemption is waived may be obtained under procedures described
in the related SORN or subpart B of this part.
(11) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act relating to
individuals' rights to access and amend their records contained in the
system. Therefore DHS is not required to establish rules or procedures
pursuant to which individuals may seek a civil remedy for the agency's:
Refusal to amend a record; refusal to comply with a request for access
to records; failure to maintain accurate, relevant timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
10. DHS-ICE-001, The Immigration and Customs Enforcement (ICE)
Student and Exchange Visitor Information System (SEVIS) collects and
maintains pertinent information on nonimmigrant students and exchange
visitors and the schools and exchange visitor program sponsors that host
them while in the United States. The system permits DHS to monitor
compliance by these individuals with the terms of their admission into
the United States. Pursuant to exemptions (j)(2), (k)(1), (k)(2) and
(k)(5) of the Privacy Act, portions of this system are exempt from 5
U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and (I). Exemptions from
the 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 the 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 and avoid detection or
apprehension, which undermines the entire system.
(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 the 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 and avoid detection or apprehension.
Amendment of the records could interfere with ongoing investigations and
law enforcement activities and impose an impossible administrative
burden by requiring investigations to be continuously reinvestigated. In
addition, permitting access and amendment to such information also 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 enforcement of federal laws, it is appropriate to retain all
information that may aid in establishing patterns of unlawful activity.
(d) From subsections (e)(4)(G), (H) and (I) (Agency Requirements),
and (f) (Agency Rules), because portions of this system are exempt from
the access provisions of subsection (d).
11. The General Counsel Electronic Management System (GEMS) consists
of records and information created or collected by attorneys for U.S.
Immigration and Customs
[[Page 56]]
Enforcement, which will be used in the preparation and presentation of
cases before a court or other adjudicative body. ICE attorneys work
closely with ICE law enforcement personnel throughout the process of
adjudicating immigration cases. GEMS allows ICE attorneys to store all
the materials pertaining to immigration adjudications, including
documents related to investigations, case notes and other hearing
related information, and briefs and memoranda of law related to cases.
Having this information in one system should not only facilitate the
work of the ICE attorneys involved in the particular case, but also will
provide a legal resource for other attorneys who are adjudicating
similar cases. The system will also provide management capabilities for
tracking time and effort expended in the preparation and presentation of
cases. Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act,
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4);
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8);
(f)(2) through (5); and (g). Pursuant to 5 U.S.C. 552a (k)(1) and
(k)(2), this system is exempt from the following provisions of the
Privacy Act, subject to the limitations set forth in those subsections:
5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f).
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 the investigation, which in some cases
may be classified, and reveal investigative interest on the part of DHS
or ICE. 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,
tamper with witnesses or evidence, and 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 pertaining to an immigration matter, which in some
cases may be classified, and prematurely 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, tamper with witnesses or evidence, and avoid detection or
apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement activities and would impose an
impossible administrative burden by requiring investigations to be
continuously 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 immigration 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 for the protection of
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 of the nature or
existence of an investigation, which could cause interference with the
investigation, a related inquiry or other law enforcement activities,
some of which may be classified.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise the existence of a confidential investigation or reveal the
identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements), (f)
(Agency Rules), and (g) (Civil Remedies) because portions of this system
are exempt from the individual access provisions of subsection (d).
(g) From subsection (e)(5) (Collection of Information) because in
the collection of information for law enforcement purposes it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with ICE'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) to the extent that the system is exempt from
other specific subsections of the Privacy Act.
12. DHS/CBP-005, Advanced Passenger Information System. A portion of
the following system of records is exempt from 5 U.S.C. 552a(c)(3) and
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I),
(5), and (8); (f), and (g); however, these exemptions apply only to the
extent that information in this system records is recompiled or is
created from information contained in other systems of records subject
to such exemptions pursuant to 5 U.S.C. 552a(j)(2), and (k)(2). Further,
no
[[Page 57]]
exemption shall be asserted with respect to information submitted by and
collected from the individual or the individual's representative in the
course of any redress process associated with this system of records.
After conferring with the appropriate component or agency, DHS may waive
applicable exemptions in appropriate circumstances and where it would
not appear to interfere with or adversely affect the law enforcement or
national security purposes of the systems from which the information is
recompiled or in which it is contained. Exemptions from the above
particular subsections are justified, on a case-by-case basis to be
determined at the time a request is made, when information in this
system records is recompiled or is created from information contained in
other systems of records subject to exemptions for the following
reasons:
(a) From subsection (c)(3) (Accounting for Disclosure) because
making available to a record subject the accounting of disclosures from
records concerning him or her would specifically reveal any
investigative interest in the individual. Revealing this information
could reasonably be expected to compromise ongoing efforts to
investigate a known or suspected terrorist by notifying the record
subject that he or she is under investigation. This information could
also permit the record subject to take measures to impede the
investigation, e.g., destroy evidence, intimidate potential witnesses,
or flee the area to avoid or impede the investigation.
(b) From subsection (c)(4) (Accounting for Disclosure, notice of
dispute) because portions of this system are exempt from the access and
amendment provisions of subsection (d).
(c) From subsections (d)(1), (2), (3), and (4) (Access to Records)
because these provisions concern individual access to and amendment of
certain records contained in this system, including law enforcement
counterterrorism, investigatory, and intelligence records. Compliance
with these provisions could alert the subject of an investigation of the
fact and nature of the investigation, and/or the investigative interest
of intelligence or law enforcement agencies; compromise sensitive
information related to national security; interfere with the overall law
enforcement process by leading to the destruction of evidence, improper
influencing of witnesses, fabrication of testimony, and/or flight of the
subject; could identify a confidential source or disclose information
which would constitute an unwarranted invasion of another's personal
privacy; reveal a sensitive investigative or intelligence technique; or
constitute a potential danger to the health or safety of law enforcement
personnel, confidential informants, and witnesses. Amendment of these
records would interfere with ongoing counterterrorism, law enforcement,
or intelligence investigations and analysis activities and impose an
impossible administrative burden by requiring investigations, analyses,
and reports to be continuously reinvestigated and revised.
(d) From subsection (e)(1) (Relevancy and Necessity of Information)
because it is not always possible for DHS or other agencies to know in
advance what information is relevant and necessary for it to complete an
identity comparison between the individual seeking redress and a known
or suspected terrorist. Also, because DHS and other agencies may not
always know what information about an encounter with a known or
suspected terrorist will be relevant to law enforcement for the purpose
of conducting an operational response.
(e) From subsection (e)(2) (Collection of Information from
Individuals) because application of this provision could present a
serious impediment to counterterrorism, law enforcement, or intelligence
efforts in that it would put the subject of an investigation, study, or
analysis on notice of that fact, thereby permitting the subject to
engage in conduct designed to frustrate or impede that activity. The
nature of counterterrorism, law enforcement, or intelligence
investigations is such that vital information about an individual
frequently can be obtained only from other persons who are familiar with
such individual and his/her activities. In such investigations it is not
feasible to rely upon information furnished by the individual concerning
his own activities.
(f) From subsection (e)(3) (Notice to Subjects), to the extent that
this subsection is interpreted to require DHS to provide notice to an
individual if DHS or another agency receives or collects information
about that individual during an investigation or from a third party.
Should the subsection be so interpreted, exemption from this provision
is necessary to avoid impeding counterterrorism, law enforcement, or
intelligence efforts by putting the subject of an investigation, study,
or analysis on notice of that fact, thereby permitting the subject to
engage in conduct intended to frustrate or impede that activity.
(g) From subsections (e)(4)(G), (H) and (I) (Agency Requirements)
because portions of this system are exempt from the access and amendment
provisions of subsection (d).
(h) From subsection (e)(5) (Collection of Information) because many
of the records in this system coming from other system of records are
derived from other domestic and foreign agency record systems and
therefore it is not possible for DHS to vouch for their compliance with
this provision; however, the DHS has implemented internal quality
assurance procedures to ensure that data used in the redress process is
as thorough, accurate, and current as possible. In addition, in the
collection of information for law enforcement, counterterrorism, and
intelligence
[[Page 58]]
purposes, it is impossible to determine in advance what information is
accurate, relevant, timely, and complete. With the passage of time,
seemingly irrelevant or untimely information may acquire new
significance as further investigation brings new details to light. The
restrictions imposed by (e)(5) would limit the ability of those
agencies' trained investigators and intelligence analysts to exercise
their judgment in conducting investigations and impede the development
of intelligence necessary for effective law enforcement and
counterterrorism efforts. The DHS has, however, implemented internal
quality assurance procedures to ensure that the data used in the redress
process is as thorough, accurate, and current as possible.
(i) From subsection (e)(8) (Notice on Individuals) because to
require individual notice of disclosure of information due to compulsory
legal process would pose an impossible administrative burden on DHS and
other agencies and could alert the subjects of counterterrorism, law
enforcement, or intelligence investigations to the fact of those
investigations when not previously known.
(j) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of subsection
(d).
(k) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
13. The Department of Homeland Security General Training Records
system of records consists of electronic and paper records and will be
used by DHS and its components. The Department of Homeland Security
General Training Records system of records consists of electronic and
paper records and will be used by DHS and its components and offices to
maintain records about individual training, including enrollment and
participation information, information pertaining to class schedules,
programs, and instructors, training trends and needs, testing and
examination materials, and assessments of training efficacy. The data
will be collected by employee name or other unique identifier. The
collection and maintenance of this information will assist DHS in
meeting its obligation to train its personnel and contractors in order
to ensure that the agency mission can be successfully accomplished.
Pursuant to exemptions 5 U.S.C. 552a(k)(6) of the Privacy Act, portions
of this system are exempt from 5 U.S.C. 552a(d) to the extent that
records in this system relate to testing or examination materials used
solely to determine individual qualifications for appointment in the
Federal service. Access to or amendment of this information by the data
subject would compromise the objectivity and fairness of the testing and
examination process.
14. The U.S. ICE-005 Trade Transparency Analysis and Research (TTAR)
System consists of electronic and paper records and will be used by the
Department of Homeland Security (DHS). TTAR 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; and national security and intelligence activities. TTAR
contains information that is collected by other federal and foreign
government agencies and may contain personally identifiable information.
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, portions
of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f), and (g).
Pursuant to 5 U.S.C. 552a(k)(2), this system is exempt from the
following provisions of the Privacy Act, subject to the limitations set
forth in those subsections: 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), and (f). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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
[[Page 59]]
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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G) and (H) (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, potential witnesses, and confidential
informants.
(g) From subsection (e)(5) (Collection of Information) because in
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 (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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
15. The DHS/ALL--013 Claims Records system of records consists of
electronic and paper records and will be used by DHS and its components.
The DHS/ALL--013 Claims Records system 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;
and national security, intelligence activities; and protection of the
President of the United States or other individuals pursuant to section
3056 and 3056A of Title 18. The DHS/ALL--013 Claims Records system
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 the following provisions
of the Privacy Act, subject to limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C.
552a(j)(2). Additionally, the Secretary of Homeland Security has
exempted 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), (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) 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 the investigation, and reveal
investigative interest on the part
[[Page 60]]
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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G), (H), and (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
16. [Reserved]
17. The DHS/ALL--006 Accident Records system of records consists of
electronic and paper records and will be used by DHS and its components.
The DHS/ALL--006 Accident Records system 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 thereunder;
national
[[Page 61]]
security and intelligence activities; and protection of the President of
the United States or other individuals pursuant to section 3056 and
3056A of Title 18. The DHS/ALL--006 Accident Records system 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 the following provisions
of the Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(d) pursuant to 5 U.S.C. 552a(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:
From subsection (d) (Access to Records) because access to the records
contained in this system of records could inform the subject of
information related to the protection of a President of the United
States or other individuals pursuant to section 3056 and 3056A of Title
18. Permitting access and amendment to such information could disclose
security-sensitive information that could be detrimental to homeland
security.
18. The DHS/ALL--020 Internal Affairs Records system of records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/ALL--020 Internal Affairs Records system 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 thereunder; national security and intelligence activities;
and protection of the President of the United States or other
individuals pursuant to section 3056 and 3056A of Title 18. The DHS/
ALL--020 Internal Affairs Records system 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 the following provisions of the Privacy
Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and
(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I),
(e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2).
Additionally, the Secretary of Homeland Security has exempted this
system from the following provisions of the Privacy Act, subject to the
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),
(k)(3), and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: revealing the existence of an otherwise
confidential investigation and thereby provide
[[Page 62]]
an opportunity for the subject of an investigation to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative efforts; reveal the identity of witnesses in
investigations, thereby providing an opportunity for the subjects of the
investigations or others to harass, intimidate, or otherwise interfere
with the collection of evidence or other information from such
witnesses; or reveal the identity of confidential informants, which
would negatively affect the informant's usefulness in any ongoing or
future investigations and discourage members of the public from
cooperating as confidential informants in any future investigations.
(f) From subsections (e)(4)(G), (H), and (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
19. The DHS/ALL--024 Facility and Perimeter Access Control and
Visitor Management system of records consists of electronic and paper
records and will be used by DHS and its components. The DHS/ALL--024
Facility and Perimeter Access Control and Visitor Management system 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; and national security and intelligence
activities. The DHS/ALL--024 Facility and Perimeter Access Control and
Visitor Management system 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 the following provisions of the Privacy Act, subject to the
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)(5). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously reinvestigated. In addition,
permitting access and amendment to such information could
[[Page 63]]
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.
20. The Department of Homeland Security (DHS)/ALL-038 Insider Threat
Program System of Records consists of electronic and paper records and
will be used by DHS and its components. The DHS/ALL-038 Insider Threat
Program System of Records is a repository of information held by DHS in
connection with its several and varied missions and functions, including
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/ALL-
038 Insider Threat Program 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,
pursuant to 5 U.S.C. 552a(j)(2), has exempted this system from the
following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4);
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5),
(e)(8), (e)(12); (f); and (g)(1). Additionally, the Secretary of
Homeland Security, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5),
has exempted this system from the following provisions of the Privacy
Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I);
and (f). Where a record received from another system has been exempted
in that source system under 5 U.S.C. 552a(j)(2), 5 U.S.C. 552a(k)(1),
(k)(2), and (k)(5), 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 set forth here.
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.
When an investigation has been completed, information on disclosures
made may continue to be exempted if the fact that an investigation
occurred remains sensitive after completion.
(b) From subsection (d) (Access and Amendment 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 subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
[[Page 64]]
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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement 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 (e)(12) (Matching Agreements) because requiring
DHS to provide notice of a new or revised matching agreement with a non-
Federal agency, if one existed, would impair DHS operations by
indicating which data elements and information are valuable to DHS's
analytical functions, thereby providing harmful disclosure of
information to individuals who would seek to circumvent or interfere
with DHS's missions.
(j) From subsection (g)(1) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
21. The DHS/CBP--010 Persons Engaged in International Trade in CBP
Licensed/Regulated Activities system of records consists of electronic
and paper records and will be used by DHS and its components. The DHS/
CBP--010 Persons Engaged in International Trade in CBP Licensed/
Regulated Activities 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 thereunder; and
national security and intelligence activities. The DHS/CBP--010 Persons
Engaged in International Trade in CBP Licensed/Regulated Activities
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 the following provisions
of the Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C.
552a(j)(2). Additionally, the Secretary of Homeland Security has
exempted this system from the following provisions of the Privacy Act,
subject to the 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)(2). 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 the 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 the 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
[[Page 65]]
impossible administrative burden by requiring investigations to be
continuously reinvestigated. In addition, permitting access and
amendment to such information could disclose security-sensitive
information that could be detrimental to national 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G), (H), and (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
22. The DHS/CBP--011 TECS system of records consists of electronic
and paper records and will be used by DHS, its Components, and other
Federal agencies. The DHS/CBP-011 TECS 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 thereunder;
and national security and intelligence activities. The DHS/CBP-011 TECS
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 the following provisions
of the Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C.
552a(j)(2). Additionally, the Secretary of Homeland Security has
exempted this system from the following provisions of the Privacy Act,
subject to the 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)(2). 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
[[Page 66]]
accounting of disclosures could alert the subject of an investigation of
an actual or potential criminal, civil, or regulatory violation to the
existence of the 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 the 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 impossible administrative burden by requiring
investigations to be continuously reinvestigated. In addition,
permitting access and amendment to such information could disclose
security-sensitive information that could be detrimental to national
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 subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation or subject of interest would alert the
subject to the nature or existence of an investigation, thereby
interfering with the related investigation and law enforcement
activities or national security matter.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G), (H), and (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
23. The DHS/CBP--012 Closed Circuit Television system of records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/CBP--012
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Closed Circuit Television system 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 thereunder; and
national security and intelligence activities. The DHS/CBP--012 Closed
Circuit Television system 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 the following provisions of the Privacy Act, subject to the
limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f),
and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of
Homeland Security has exempted this system from the following provisions
of the Privacy Act, subject to the 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)(2). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G), (H), and (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 in
the collection of information for law enforcement purposes it is
impossible to determine in advance what information is accurate,
relevant, timely, and
[[Page 68]]
complete. Compliance with (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
24. The DHS/CBP--013 Seized Assets and Case Tracking System
(SEACATS) consists of electronic and paper records and will be used by
DHS and its components. The DHS/CBP--013 Seized Assets and Case Tracking
System 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 thereunder; and national security and
intelligence activities. The DHS/CBP--013 Seized Assets and Case
Tracking System 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 the
following provisions of the Privacy Act, subject to the limitations set
forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), and (g)
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland
Security has exempted this system from the following provisions of the
Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a
(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (I), and (f) pursuant to 5
U.S.C. 552a(k)(2). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously reinvestigated. In addition,
permitting access and amendment to such information could disclose
security-sensitive information that could be detrimental to national
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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of
[[Page 69]]
the investigations or others to harass, intimidate, or otherwise
interfere with the collection of evidence or other information from such
witnesses; or reveal the identity of confidential informants, which
would negatively affect the informant's usefulness in any ongoing or
future investigations and discourage members of the public from
cooperating as confidential informants in any future investigations.
(f) From subsections (e)(4)(G), (H), and (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 in
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 (e)(5) would preclude
the officers and agents of DHS components' 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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
25. The Department of Homeland Security (DHS)/U.S. Customs and
Border Protection-014 Regulatory Audit Archive System (RAAS) System of
Records consists of electronic and paper records and will be used by DHS
and its Components. The DHS/CBP-014 RAAS 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. The DHS/CBP-014 RAAS 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, pursuant to 5 U.S.C. 552a(k)(2), has exempted this
system from the following provisions of the Privacy Act: 5 U.S.C.
552a(c)(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 the 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 impossible administrative burden by requiring
investigations to be continuously 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
[[Page 70]]
all information that may aid in establishing patterns of unlawful
activity.
(d) From subsections (e)(4)(G), (H), and (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.
26. DHS/CBP-001, Import Information System (IIS). A portion of the
following system of records is exempt from 5 U.S.C. 552a(c)(3), (e)(8),
and (g)(1) pursuant to 5 U.S.C. 552a(j)(2), and from 5 U.S.C. 552a(c)(3)
pursuant to 5 U.S.C. 552a(k)(2). Further, no exemption shall be asserted
with respect to information maintained in the system as it relates to
data submitted by or on behalf of a person who travels to visit the
United States and crosses the border, nor shall an exemption be asserted
with respect to the resulting determination (approval or denial). After
conferring with the appropriate component or agency, DHS may waive
applicable exemptions in appropriate circumstances and where it would
not appear to interfere with or adversely affect the law enforcement
purposes of the systems from which the information is recompiled or in
which it is contained. Exemptions from the above particular subsections
are justified, on a case-by-case basis to be determined at the time a
request is made, when information in this system of records is may
impede a law enforcement, intelligence activities and national security
investigation:
(a) From subsection (c)(3) (Accounting for Disclosure) because
making available to a record subject the accounting of disclosures from
records concerning him or her would specifically reveal any
investigative interest in the individual. Revealing this information
could reasonably be expected to compromise ongoing efforts to
investigate a violation of U.S. law, including investigations of a known
or suspected terrorist, by notifying the record subject that he or she
is under investigation. This information could also permit the record
subject to take measures to impede the investigation, e.g., destroy
evidence, intimidate potential witnesses, or flee the area to avoid or
impede the investigation.
(b) From subsection (e)(8) (Notice on Individuals) because to
require individual notice of disclosure of information due to compulsory
legal process would pose an impossible administrative burden on DHS and
other agencies and could alert the subjects of counterterrorism or law
enforcement investigations to the fact of those investigations when not
previously known.
(c) From subsection (g)(1) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
27. The DHS/CBP-009 Nonimmigrant Information system of records
consists of electronic and paper records and will be used by DHS and
it's Components. The DHS/CBP-009 Nonimmigrant Information System 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 thereunder; and national security and intelligence
activities. The DHS/CBP-009 Nonimmigrant Information System 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 may
contain records or information pertaining to the accounting of
disclosures made from the Nonimmigrant Information System to other law
enforcement and counterterrorism agencies (Federal, State, Local,
Foreign, International or Tribal) in accordance with the published
routine uses. The Secretary of Homeland Security has exempted this
system from the following provisions of the Privacy Act, subject to the
limitations set forth in 5 U.S.C. 522(c)(3), (e) (8), and (g) of the
Privacy Act of 1974, as amended, as necessary and appropriate to protect
accounting of these disclosures only, pursuant to 5 U.S.C. 552a (j)(2),
and (k)(2). Further, no exemption shall be asserted with respect to
biographical or travel information submitted by, and collected from, a
person's travel documents or submitted from a government computer system
to support or to validate those travel documents. After conferring with
the appropriate component or agency, DHS may waive applicable exemptions
in appropriate circumstances and where it would not appear to interfere
with or adversely affect the law enforcement purposes of the systems
from which the information is recompiled or in which it is contained.
Exemptions from the above particular subsections are justified, on a
case-by-case basis to be determined at the time a request is made, when
information in this system of records is recompiled or is created from
information contained in other systems of records subject to exemptions
for the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosure) because
making available to a record subject the accounting of disclosures from
records concerning him or her would
[[Page 71]]
specifically reveal any investigative interest in the individual.
Revealing this information could reasonably be expected to compromise
ongoing efforts to investigate a violation of U.S. law, including
investigations of a known or suspected terrorist, by notifying the
record subject that he or she is under investigation. This information
could also permit the record subject to take measures to impede the
investigation, e.g., destroy evidence, intimidate potential witnesses,
or flee the area to avoid or impede the investigation.
(b) From subsection (e)(8) (Notice on Individuals) because to
require individual notice of disclosure of information due to compulsory
legal process would pose an impossible administrative burden on DHS and
other agencies and could alert the subjects of counterterrorism or law
enforcement investigations to the fact of those investigations when not
previously known.
(c) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
28. The DHS/ICE--007 Law Enforcement Support Center (LESC) Alien
Criminal Response Information Management (ACRIMe) system of records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/ICE--007 Law Enforcement Support Center Alien
Criminal Response Information Management system 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
thereunder; and national security and intelligence activities. The DHS/
ICE--007 Law Enforcement Support Center Alien Criminal Response
Information Management system 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 of records from the following provisions of the Privacy Act,
subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and (4);
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), and (e)(5) and
(e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the
Secretary of Homeland Security has exempted this system from the
following provisions of the Privacy Act, subject to the limitations set
forth in 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and
(f) pursuant to 5 U.S.C. 552a(k)(2). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 identifying or 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby
[[Page 72]]
providing an opportunity for the subjects of the investigations or
others to harass, intimidate, or otherwise interfere with the collection
of evidence or other information from such witnesses; or reveal the
identity of confidential informants, which would negatively affect the
informant's usefulness in any ongoing or future investigations and
discourage members of the public from cooperating as confidential
informants in any future investigations.
(f) From subsections (e)(4)(G), (H) (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
29. The DHS/ICE--008 Search, Arrest, and Seizure system of records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/ICE--008 Search, Arrest, and Seizure system 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 thereunder; and national security and intelligence
activities. The DHS/ICE--008 Search, Arrest, and Seizure system 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 the following provisions
of the Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2).
Additionally, the Secretary of Homeland Security has exempted this
system from the following provisions of the Privacy Act, subject to the
limitations set forth in 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), and (f) pursuant to 5 U.S.C. 552a(k)(2). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously reinvestigated. In addition,
permitting access and amendment to such information could disclose
security-sensitive information that could be detrimental to homeland
security.
[[Page 73]]
(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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G) and (H) (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
30. The DHS/ICE--009 External Investigations system of records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/ICE--009 External Investigations system 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; and national security and intelligence
activities. The DHS/ICE--009 External Investigations system 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 the following provisions
of the Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
and (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2).
Additionally, the Secretary of Homeland Security has exempted this
system from the following provisions of the Privacy Act, subject to the
limitations set forth in 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), and (f) pursuant to 5 U.S.C. 552a(k)(2). 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 the investigation, and reveal
investigative interest on the part
[[Page 74]]
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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G) and (H) (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
31. The DHS/ICE--010 Confidential and Other Sources of Information
(COSI) system of records consists of electronic and paper records and
will be used by DHS and its components. The DHS/ICE--010 Confidential
and Other Sources of Information system 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; and investigations, inquiries, and proceedings there
under; and national security
[[Page 75]]
and intelligence activities. The DHS/ICE--010 Confidential and Other
Sources of Information system 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 the following provisions of the Privacy Act, subject to
the limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f), and (g)
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland
Security has exempted this system from the following provisions of the
Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a
(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f) pursuant to 5 U.S.C.
552a(k)(2). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G) and (H) (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 in
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 (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
[[Page 76]]
with DHS' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
32. The DHS/USCIS--006 Fraud Detection and National Security Data
System (FDNS-DS) system of records consists of a stand alone database
and paper files that will be used by DHS and its components. The DHS/
USCIS--006 Fraud Detection and National Security Data System is a case
management system used to record, track, and manage immigration
inquiries, investigative referrals, law enforcement requests, and case
determinations involving benefit fraud, criminal activity, public safety
and national security concerns. The Secretary of Homeland Security has
exempted this system from the following provisions of the Privacy Act,
subject to the 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)(2). These exemptions apply only to the extent that records in
the system are subject to exemption pursuant to 5 U.S.C. 552a (k)(2).
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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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) and (e)(4)(H) (Agency Requirements)
because portions of this system are exempt from the individual access
provisions of subsection (d) which exempts providing access because it
could alert a subject to the nature or existence of an investigation,
and thus there could be no procedures for that particular data.
Procedures do exist for access for those portions of the system that are
not exempted.
(e) From subsection (e)(4)(I) (Agency Requirements) because
providing such source information would impede law enforcement or
intelligence by compromising the nature or existence of a confidential
investigation.
(f) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of subsection
(d).
33. The DHS/USCG--028 Family Advocacy Case Records system of records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/USCG--028 Family Advocacy Case 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. The DHS/USCG--028 Family Advocacy Case 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 the following provisions
of the Privacy Act, subject to the limitations
[[Page 77]]
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)(2). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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), (H), and (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.
34. The DHS/USCG-029 Notice of Arrival and Departure System of
Records consists of electronic and paper records and will be used by DHS
and its components. The DHS/USCG-029 Notice of Arrival and Departure
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. The DHS/
USCG-029 Notice of Arrival and Departure 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, pursuant to 5 U.S.C. 552a(j)(2),
exempted this system from the following provisions of the Privacy Act:
Sections (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended,
as is necessary and appropriate to protect this information. Further,
DHS has exempted section (c)(3) of the Privacy Act of 1974, as amended,
pursuant to 5 U.S.C. 552a(k)(2), as is necessary and appropriate to
protect this information.
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.
When an investigation has been completed, information on disclosures
made may continue to be exempted if the fact that an investigation
occurred remains sensitive after completion.
(b) 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
[[Page 78]]
seal and could result in disclosure of investigative techniques,
procedures, and evidence.
(c) From subsection (g)(1) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
35. The DHS/Secret Service--001 Criminal Investigation Information
system of records consists of electronic and paper records and will be
used by DHS and its components. The DHS/Secret Service--001 Criminal
Investigation Information system 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; the
protection of the President of the United States or other individuals
and locations pursuant to section 3056 and 3056A of Title 18. The DHS/
Secret Service--001 Criminal Investigation Information system 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, international government agencies, as well as private
corporate, education and other entities. The Secretary of Homeland
Security has exempted this system from the following provisions of the
Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3)
and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I),
(e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2).
Additionally, the Secretary of Homeland Security has exempted this
system from the following provisions of the Privacy Act, subject to the
limitations set forth in 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), (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) 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 the investigation, or
protective inquiry, 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
the Secret Service's protective mission. Disclosure of the accounting
would also permit the individual who is the subject of a record to
impede the investigation, or inquiry, to tamper with witnesses or
evidence, and to avoid detection or apprehension, which would undermine
the entire investigative or inquiry 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, or protective inquiry to the existence of the
investigation or inquiry, 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 or
inquiry, to tamper with witnesses or evidence, and to avoid detection or
apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement or protective activities and/or could
disclose security-sensitive information that could be detrimental to
homeland security or the protective mission of the Secret Service.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
Federal law or protective inquiries, 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 or
protective inquiry. In the interests of effective law enforcement, and/
or the protective mission of the Secret Service, it is appropriate to
retain all information that may aid in establishing patterns of unlawful
activity, or a threat to an individual, location or event protected or
secured by the Secret Service.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation or protective inquiry would alert the
subject to the nature or existence of an investigation or inquiry,
thereby interfering with the related investigation or inquiry and law
enforcement or protective activities.
(e) From subsection (e)(3) (Notice to Individuals Providing
Information) because providing such detailed information would impede
law enforcement or protective activities in that it could compromise
investigations or inquires by: Revealing the existence of an otherwise
confidential investigation or inquiry and thereby provide an opportunity
for the subject of an investigation or inquiry to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative or protective efforts; reveal the identity of witnesses in
investigations or inquiries, thereby providing an opportunity for the
subjects of the investigations or inquiries or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations or protective
activities and discourage members of the public from cooperating as
confidential informants in
[[Page 79]]
any future investigations or protective activities.
(f) From subsections (e)(4)(G), (H), and (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 the 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 or protective efforts and
reveal the identities of witnesses, and potential witnesses, and
confidential informants.
(g) From subsection (e)(5) (Maintenance of Information Used in
Making any Determination) because in the collection of information for
law enforcement and protective purposes it is impossible to determine in
advance what information is accurate, relevant, timely, and complete.
Compliance with (e)(5) would preclude Secret Service DHS agents from
using their investigative and protective training and exercising good
judgment to both conduct and report on investigations or other
protective activities.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS' ability to obtain, serve, and issue
subpoenas, warrants, and other law enforcement mechanisms that may be
filed under seal, or/and could result in disclosure of investigative or
protective techniques, procedures, and evidence.
(i) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act
relating to individuals' rights to access and amend their records
contained in the system. Therefore DHS is not required to establish
rules or procedures pursuant to which individuals may seek a civil
remedy for the agency's: Refusal to amend a record; refusal to comply
with a request for access to records; failure to maintain accurate,
relevant, timely and complete records; or failure to otherwise comply
with an individual's right to access or amend records.
36. The DHS/Secret Service--003 Non-Criminal Investigation
Information system of records consists of electronic and paper records
and will be used by DHS and its components. The DHS/Secret Service--003
Non-Criminal Investigation Information system 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; criminal, civil, protective and background
investigations and inquiries, and proceedings thereunder; the protection
of the President of the United States or other individuals and locations
pursuant to section 3056 and 3056A of Title 18; and the hiring of
employees through an application process which includes the use of
polygraph examinations. The DHS/Secret Service--003 Non-Criminal
Investigation Information system 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, as well as private corporate, educational and other
entities. The Secretary of Homeland Security has exempted this system
from the following provisions of the Privacy Act, subject to the
limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f),
and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of
Homeland Security has exempted this system from the following provisions
of the Privacy Act, subject to the 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), (k)(3), (k)(5), and (k)(6).
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 the investigation, or
protective inquiry, 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
the Secret Service's protective mission. Disclosure of the accounting
would also permit the individual who is the subject of a record to
impede the investigation or inquiry, to tamper with witnesses or
evidence, and to avoid detection or apprehension, which would undermine
the entire investigative or inquiry 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, or protective inquiry to the existence of the
investigation or inquiry, 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 or
inquiry, to tamper with witnesses or evidence, and to avoid detection or
apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement or protective activities and/or could
disclose security-sensitive information that
[[Page 80]]
could be detrimental to homeland security or the protective mission of
the Secret Service.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
Federal law or protective inquiries, 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 or
protective inquiry. In the interests of effective law enforcement and/or
the protective mission of the Secret Service, it is appropriate to
retain all information that may aid in establishing patterns of unlawful
activity, or a threat to an individual, location or event protected or
secured by the Secret Service.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation or protective inquiry would alert the
subject to the nature or existence of an investigation or inquiry,
thereby interfering with the related investigation or inquiry and law
enforcement or protective activities.
(e) From subsection (e)(3) (Notice to Individuals Providing
Information) because providing such detailed information would impede
law enforcement or protective activities in that it could compromise
investigations or inquiries by: Revealing the existence of an otherwise
confidential investigation or inquiry and thereby provide an opportunity
for the subject of an investigation or inquiry to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative or protective efforts; reveal the identity of witnesses in
investigations or inquiries, thereby providing an opportunity for the
subjects of the investigations or inquiries or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations or protective
activities and discourage members of the public from cooperating as
confidential informants in any future investigations or protective
activities.
(f) From subsections (e)(4)(G), (H), and (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 the 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 or protective efforts and
reveal the identities of witnesses, and potential witnesses, and
confidential informants.
(g) From subsection (e)(5) (Maintenance of Information Used in
Making any Determination) because in the collection of information for
law enforcement and protective purposes it is impossible to determine in
advance what information is accurate, relevant, timely, and complete.
Compliance with (e)(5) would preclude Secret Service agents from using
their investigative and protective training, and exercising good
judgment to both conduct and report on investigations or other
protective activities.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS' ability to obtain, serve, and issue
subpoenas, warrants, and other law enforcement mechanisms that may be
filed under seal, or could result in disclosure of investigative or
protective techniques, procedures, and evidence.
(i) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act
relating to individuals' rights to access and amend their records
contained in the system. Therefore DHS is not required to establish
rules or procedures pursuant to which individuals may seek a civil
remedy for the agency's: Refusal to amend a record; refusal to comply
with a request for access to records; failure to maintain accurate,
relevant, timely and complete records; or failure to otherwise comply
with an individual's right to access or amend records.
37. The DHS/Secret Service--004 Protection Information system of
records consists of electronic and paper records and will be used by DHS
and its components. The DHS/Secret Service--004 Protection Information
system 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 thereunder; and the protection of the
President of the United States or other individuals and locations
pursuant to Sections 3056 and 3056A of Title 18. The DHS/Secret
Service--004 Protection Information system 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, as well as private corporate or other
entities. The Secretary of Homeland Security has exempted this system
from the following provisions of the Privacy Act, subject to the
limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f),
and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of
[[Page 81]]
Homeland Security has exempted this system from the following provisions
of the Privacy Act, subject to the 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) 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 or a protective inquiry to the existence of the
investigation or inquiry, 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 the Secret Service's protective mission. Disclosure of the
accounting would also permit the individual who is the subject of a
record to impede the investigation or inquiry, to tamper with witnesses
or evidence, and to avoid detection or apprehension, which would
undermine the entire investigative or inquiry 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, or protective inquiry to the existence of the
investigation or inquiry, 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,
or inquiry to tamper with witnesses or evidence, and to avoid detection
or apprehension. Amendment of the records could interfere with ongoing
investigations, law enforcement or protective activities and/or could
disclose security-sensitive information that could be detrimental to
homeland security or the protective mission of the Secret Service.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
Federal law or protective inquiries, 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 or
protective inquiry. In the interests of effective law enforcement and/or
the protective mission of the Secret Service, it is appropriate to
retain all information that may aid in establishing patterns of unlawful
activity, or a possible threat to an individual, location or event
protected or secured by the Secret Service.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation or protective inquiry would alert the
subject to the nature or existence of an investigation or inquiry,
thereby interfering with the related investigation or inquiry and law
enforcement or protective activities.
(e) From subsection (e)(3) (Notice to Individuals Providing
Information) because providing such detailed information would impede
law enforcement or protective activities in that it could compromise
investigations or inquiries by: Revealing the existence of an otherwise
confidential investigation or inquiry and thereby provide an opportunity
for the subject of an investigation or inquiry to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative or protective efforts; reveal the identity of witnesses,
thereby providing an opportunity for the subjects of the investigations
or inquiries or others to harass, intimidate, or otherwise interfere
with the collection of evidence or other information from such
witnesses; or reveal the identity of confidential informants, which
would negatively affect the informant's usefulness in any ongoing or
future investigations or protective activities and discourage members of
the public from cooperating as confidential informants in any future
investigations or protective activities.
(f) From subsections (e)(4)(G), (H), and (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 the 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 and protective efforts and
reveal the identities of witnesses, and potential witnesses, and
confidential informants.
(g) From subsection (e)(5) (Maintenance of Information Used in
Making any Determination) because in the collection of information for
law enforcement and protective purposes it is impossible to determine in
advance what information is accurate, relevant, timely, and complete.
Compliance with (e)(5) would preclude Secret Service agents from using
their investigative and protective training and exercising good judgment
to both conduct and report on investigations or other protective
activities.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS' ability to obtain, serve, and issue
subpoenas, warrants, and other law enforcement mechanisms that may be
filed under
[[Page 82]]
seal, and could result in disclosure of investigative or protective
techniques, procedures, and evidence.
(i) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act
relating to individuals' rights to access and amend their records
contained in the system. Therefore DHS is not required to establish
rules or procedures pursuant to which individuals may seek a civil
remedy for the agency's: refusal to amend a record; refusal to comply
with a request for access to records; failure to maintain accurate,
relevant, timely and complete records; or failure to otherwise comply
with an individual's right to access or amend records.
38. The DHS/ALL--025 Law Enforcement Authority in Support of the
Protection of Property Owned or Occupied by the Department of Homeland
Security system of records consists of electronic and paper records and
will be used by DHS and its components. The DHS/ALL--025 Law Enforcement
Authority in Support of the Protection of Property Owned or Occupied by
the Department of Homeland Security system 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; and national security and intelligence activities. The DHS/
ALL--025 Law Enforcement Authority in Support of the Protection of
Property Owned or Occupied by the Department of Homeland Security system
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 the following provisions
of the Privacy Act, subject to the 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)(5). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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.
39. The DHS/ALL--017 General Legal Records system of records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/ALL--017 General Legal Records 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 thereunder; national security and intelligence activities;
and protection of the President of the United States or other
individuals pursuant to section 3056 and 3056A of
[[Page 83]]
Title 18. The DHS/ALL--017 General Legal Records 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 the following provisions
of the Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(4)(I), (e)(5) and (e)(8); (f), and (g), pursuant to exemption 5
U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has
exempted this system from the following provisions of the Privacy Act,
subject to the limitations set forth in 5 U.S.C. 552a (c)(3), (d),
(e)(1), (e)(4)(G), (e)(4)(H), (I), and (f), pursuant to 5 U.S.C.
552a(k)(1), (k)(2), (k)(3) and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G), (H), and (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 in
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 (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
[[Page 84]]
with DHS' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
40. The DHS/ALL--023 Personnel Security Management system of records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/ALL--023 Personnel Security Management system 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 thereunder; national security and intelligence activities;
and protection of the President of the United States or other
individuals pursuant to section 3056 and 3056A of Title 18. The DHS/
ALL--023 Personnel Security Management system 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 the following provisions of the Privacy
Act, subject to the 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), (k)(3), and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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), (H), and (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.
41. The DHS/NPPD/US-VISIT--001 Arrival and Departure Information
system of records notice is a system for the storage and use of
biographic, biometric indicator, and encounter data consolidated from
various systems regarding aliens who have applied for entry, entered, or
departed the United States. Information in the DHS/NPPD/US-VISIT--001
Arrival and Departure Information system of records notice is used
primarily to facilitate the investigation of subjects of interest who
may have violated their immigration status by remaining in the United
States beyond their authorized stay; thereby supporting the several and
varied missions and functions of DHS, including but not limited to:
[[Page 85]]
the enforcement of civil and criminal laws (including the immigration
law); investigations, inquiries; national security and intelligence
activities in support of the DHS mission to identify and prevent acts of
terrorism against the United States. The information 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 the following provisions of the Privacy Act, subject to the
limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f); and (g)
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland
Security has exempted this system from the following provisions of the
Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H); and (f) pursuant to 5
U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identities of witnesses in investigations, thereby providing
an opportunity for the subjects of the investigations or others to
harass, intimidate, or otherwise interfere with the collection of
evidence or other information from such witnesses; or reveal the
identity of confidential informants, which would negatively affect the
informant's usefulness in any ongoing or future investigations and
discourage members of the public from cooperating as confidential
informants in any future investigations.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements), and
(f) (Agency Requirements) 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 in
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 (e)(5) would preclude
DHS agents from using their investigative training and exercise of good
judgment
[[Page 86]]
to both conduct and report on investigations.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS' 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) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act
relating to individuals' rights to access and amend their records
contained in the system. Therefore DHS is not required to establish
rules or procedures pursuant to which individuals may seek a civil
remedy for the agency's: refusal to amend a record; refusal to comply
with a request for access to records; failure to maintain accurate,
relevant, timely and complete records; or failure to otherwise comply
with an individual's right to access or amend records.
42. The DHS/NPPD/US-VISIT--003 Technical Reconciliation Analysis
Classification system of records (TRACS) consists of stand alone
database and paper files that will be used by DHS and its components.
This system of records will be used to perform a range of information
management and analytic functions involving collecting, verifying, and
resolving tracking of data primarily on individuals who are not United
States citizens or legal permanent residents (LPRs). However, it will
contain data on: (1.) U.S. citizens or LPRs who have a connection to the
DHS mission (e.g., individuals who have submitted a visa application to
the UK, or have made requests for a license or credential as part of a
background check or security screening in connection with their hiring
or retention, performance of a job function or the issuance of a license
or credential for employment at DHS); (2.) U.S. citizens and LPRs who
have an incidental connection to the DHS mission (e.g., individuals
living at the same address as individuals who have remained in this
country beyond their authorized stays); and (3.) individuals who have,
over time, changed their status and became U.S. citizens or LPRs. The
DHS/NPPD/US-VISIT--003 Technical Reconciliation Analysis Classification
system of records is managed and maintained by the US-VISIT Program. The
data contained in the DHS/NPPD/US-VISIT--003 Technical Reconciliation
Analysis Classification system of records is primarily derived from DHS/
NPPD/U.S-VISIT--001 Arrival and Departure Information System (ADIS);
DHS/CBP--011 TECS; DHS/ICE--001 Student and Exchange Visitor Information
System (SEVIS); DHS/ICE/CBP/USCIS--001--03 Enforcement Operational
Immigration Records (ENFORCE/IDENT); DHS/ICE--011 Removable Alien
Records System (RARS); DHS/USCIS--001 Alien File (A-File) and Central
Index System (CIS); DHS/USCIS--007 Benefits Information System covering
Computer Linked Application Information Management System 3 (Claims 3)
and Computer Linked Application Information Management System 4 (Claims
4); DHS/USCIS Refugees, Asylum & Parole System (RAPS); and from the
Department of State's Consolidated Consular Database (CCD). The DHS/
NPPD/US-VISIT--003 Technical Reconciliation Analysis Classification
system of records also contains data from web searches for addresses and
phone numbers. This data is collected by, on behalf of, in support of,
or in cooperation with DHS and its components. The Secretary of Homeland
Security has exempted this system from the following provisions of the
Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3)
and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I),
(e)(5) and (e)(8); (f); and (g) pursuant to 5 U.S.C. 552a(j)(2).
Additionally, the Secretary of Homeland Security has exempted this
system from the following provisions of the Privacy Act, subject to the
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)(5). 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 the 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 the 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
[[Page 87]]
impossible administrative burden by requiring investigations to be
continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G), and (e)(4)(H) (Agency Requirements)
because portions of this system are exempt from the individual access
provisions of subsection (d) which exempts providing access because it
could alert a subject to the nature or existence of an investigation,
and thus there could be no procedures for that particular data.
Procedures do exist for access for those portions of the system that are
not exempted.
(g) From subsection (e)(4)(I) (Agency Requirements) because
providing such source information would impede enforcement or
intelligence by compromising the nature or existence of a confidential
investigation.
(h) From subsection (e)(5) (Collection of Information) because in
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 (e)(5) would preclude
DHS agents from using their investigative training and exercise of good
judgment to both conduct and report on investigations.
(i) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS' 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.
(j) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of subsection
(d).
(k) From subsection (g) to the extent that the system is exempt from
other specific subsections of the Privacy Act.
43. The DHS/USCG--013 Marine Information for Safety and Law
Enforcement system of records consists of electronic and paper records
and will be used by DHS and its components. The DHS/USCG--013 Marine
Information for Safety and Law Enforcement 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/USCG--013 Marine Information for Safety and Law Enforcement
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 the
following provisions of the Privacy Act, subject to the limitations set
forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f); and (g)
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland
Security has exempted this system from the following provisions of the
Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H); (I); and (f) pursuant to
5 U.S.C. 552a(k)(2). 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 the investigation, and reveal
investigative interest on the part of DHS as well as the recipient
agency. Disclosure of the accounting would therefore
[[Page 88]]
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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G), (H), and (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
44. The DHS/USCG--030 Merchant Seaman's Records system of records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/USCG--030 Merchant Seaman's Records 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. The DHS/USCG--030 Merchant
Seaman's Records system of records contains information that is
collected by, on behalf of, in support of, or in
[[Page 89]]
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 the following provisions
of the Privacy Act, subject to the 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)(2). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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.
45. The DHS/CBP--006 Automated Targeting system of records performs
screening of both inbound and outbound cargo, travelers, and
conveyances. As part of this screening function and to facilitate DHS's
border enforcement mission, the DHS/CBP--006 Automated Targeting system
of records compares information received with CBP's law enforcement
databases, the Federal Bureau of Investigation Terrorist Screening
Center's Terrorist Screening Database (TSDB), information on outstanding
wants or warrants, information from other government agencies regarding
high-risk parties, and risk-based rules developed by analysts using law
enforcement data, intelligence, and past case experience. The modules
also facilitate analysis of the screening results of these comparisons.
This supports the several and varied missions and functions of DHS,
including but not limited to: The enforcement of civil and criminal laws
(including the immigration law); investigations, inquiries; national
security and intelligence activities in support of the DHS mission to
identify and prevent acts of terrorism against the United States. The
information 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. Certain records
or information in DHS/CBP--006 Automated Targeting system of records are
exempt from the Privacy Act. With respect to the ATS-P module, exempt
records are the targeting rule sets, risk assessment analyses, and
business confidential information contained in the PNR that relates to
the air and vessel carriers. No exemption shall be asserted regarding
PNR data about the requester, provided by either the requester or a
booking agent, brokers, or another person on the requester's behalf.
This information, upon request, may be provided to the requester in the
form in which it was collected from the respective carrier, but may not
include certain business confidential information of the air carrier
that is also contained in the record, such as use and application of
frequent flier miles, internal annotations to the air fare, etc. For
other DHS/CBP--006 Automated Targeting system of records modules
[[Page 90]]
the only information maintained in the system is the targeting rule
sets, risk assessment analyses, and a pointer to the data from the
source system of records. The Secretary of Homeland Security has
exempted this system from the following provisions of the Privacy Act,
subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and (4);
(d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), (e)(5),
and (8); (f); and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the
Secretary of Homeland Security has exempted this system from the
following provisions of the Privacy Act, subject to the limitations set
forth in 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1),
(2), (3), (4)(G) through (I), (e)(5), and (8); (f); and (g) pursuant to
5 U.S.C. 552a(k)(2). These exemptions also apply to the extent that
information in this system of records is recompiled or is created from
information contained in other systems of records. After conferring with
the appropriate component or agency, DHS may waive applicable exemptions
in appropriate circumstances and where it would not appear to interfere
with or adversely affect the law enforcement purposes of the systems
from which the information is recompiled or in which it is contained.
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 Disclosure)
because making available to a record subject the accounting of
disclosures from records concerning him or her would specifically reveal
any investigative interest in the individual. Revealing this information
could reasonably be expected to compromise ongoing efforts to
investigate a known or suspected criminal or terrorist, or other person
of interest, by notifying the record subject that he or she is under
investigation. This information could also permit the record subject to
take measures to impede the investigation, e.g., destroy evidence,
intimidate potential witnesses, or flee the area to avoid or impede the
investigation. 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 Disclosure) because making available to a record subject
the accounting of disclosures from records concerning him or her would
specifically reveal any investigative interest in the individual.
Revealing this information could reasonably be expected to compromise
ongoing efforts to investigate a known or suspected terrorist by
notifying the record subject that he or she is under investigation. This
information could also permit the record subject to take measures to
impede the investigation, e.g., destroy evidence, intimidate potential
witnesses, or flee the area to avoid or impede the investigation.
(b) From subsection (c)(4) (Accounting for Disclosure, notice of
dispute) because certain records in this system are exempt from the
access and amendment provisions of subsection (d), this requirement to
inform any person or other agency about any correction or notation of
dispute that the agency made with regard to those records, should not
apply.
(c) From subsections (d)(1), (2), (3), and (4) (Access to Records)
because these provisions concern individual access to and amendment of
certain records contained in this system, including law enforcement,
counterterrorism, and investigatory records. Compliance with these
provisions could alert the subject of an investigation to the fact and
nature of the investigation, and/or the investigative interest of
intelligence or law enforcement agencies; compromise sensitive
information related to law enforcement, including matters bearing on
national security; interfere with the overall law enforcement process by
leading to the destruction of evidence, improper influencing of
witnesses, fabrication of testimony, and/or flight of the subject; could
identify a confidential source; reveal a sensitive investigative or
intelligence technique; or constitute a potential danger to the health
or safety of law enforcement personnel, confidential informants, and
witnesses. Amendment of these records would interfere with ongoing
counterterrorism or law enforcement investigations and analysis
activities and impose an impossible administrative burden by requiring
investigations, analyses, and reports to be continuously reinvestigated
and revised.
(d) From subsection (e)(1) (Relevancy and Necessity of Information)
because it is not always possible for DHS or other agencies to know in
advance what information is relevant and necessary for it to complete
screening of cargo, conveyances, and passengers. Information relating to
known or suspected criminals or terrorists or other persons of interest,
is not always collected in a manner that permits immediate verification
or determination of relevancy to a DHS purpose. For example, during the
early stages of an investigation, it may not be possible to determine
the immediate relevancy of information that is collected--only upon
later evaluation or association with further information, obtained
subsequently, may it be possible to establish particular relevance to a
law enforcement program. Lastly, this exemption is required because DHS
and other agencies may not always know what information about an
encounter with a known or suspected criminal or terrorist or other
person of interest will be relevant to law enforcement for the purpose
of conducting an operational response.
[[Page 91]]
(e) From subsection (e)(2) (Collection of Information from
Individuals) because application of this provision could present a
serious impediment to counterterrorism or other law enforcement efforts
in that it would put the subject of an investigation, study or analysis
on notice of that fact, thereby permitting the subject to engage in
conduct designed to frustrate or impede that activity. The nature of
counterterrorism, and law enforcement investigations is such that vital
information about an individual frequently can be obtained only from
other persons who are familiar with such individual and his/her
activities. In such investigations it is not feasible to rely solely
upon information furnished by the individual concerning his own
activities.
(f) From subsection (e)(3) (Notice to Subjects), to the extent that
this subsection is interpreted to require DHS to provide notice to an
individual if DHS or another agency receives or collects information
about that individual during an investigation or from a third party.
Should the subsection be so interpreted, exemption from this provision
is necessary to avoid impeding counterterrorism or other law enforcement
efforts by putting the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in conduct
intended to frustrate or impede that activity.
(g) From subsections (e)(4)(G), (H) and (I) (Agency Requirements)
because portions of this system are exempt from the access and amendment
provisions of subsection (d).
(h) From subsection (e)(5) (Collection of Information) because many
of the records in this system coming from other systems of records are
derived from other domestic and foreign agency record systems and
therefore it is not possible for DHS to vouch for their compliance with
this provision; however, the DHS has implemented internal quality
assurance procedures to ensure that data used in its screening processes
is as complete, accurate, and current as possible. In addition, in the
collection of information for law enforcement and counterterrorism
purposes, it is impossible to determine in advance what information is
accurate, relevant, timely, and complete. With the passage of time,
seemingly irrelevant or untimely information may acquire new
significance as further investigation brings new details to light. The
restrictions imposed by (e)(5) would limit the ability of those
agencies' trained investigators and intelligence analysts to exercise
their judgment in conducting investigations and impede the development
of intelligence necessary for effective law enforcement and
counterterrorism efforts.
(i) From subsection (e)(8) (Notice on Individuals) because to
require individual notice of disclosure of information due to compulsory
legal process would pose an impossible administrative burden on DHS and
other agencies and could alert the subjects of counterterrorism or law
enforcement investigations to the fact of those investigations when not
previously known.
(j) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of subsection
(d). Access to, and amendment of, system records that are not exempt or
for which exemption is waived may be obtained under procedures described
in the related SORN or subpart B of this part.
(k) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
46. The DHS/CBP-007 Border Crossing Information System of Records
consists of electronic and paper records and will be used by DHS and its
Components. The DHS/CBP-007 Border Crossing Information 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 thereunder; and law enforcement, border
security, and intelligence activities. The DHS/CBP-007 Border Crossing
Information 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. At the time of border crossing and during the
process of determining admissibility, CBP collects two types of data for
which it claims different exemptions.
(a) CBP will not assert any exemption to limit an individual from
accessing or amending his or her record with respect to information
maintained in the system that is collected from a person at the time of
crossing and submitted by that person's air, sea, bus, or rail carriers.
The Privacy Act requires DHS to maintain an accounting of the
disclosures made pursuant to all routine uses. Pursuant to 5 U.S.C.
552a(j)(2), CBP will not disclose the fact that a law enforcement or
intelligence agency has sought particular records because it may affect
ongoing law enforcement activities. The Secretary of Homeland Security
has exempted this system from subsections (c)(3), (e)(8), and (g) of the
Privacy Act of 1974, as amended, as is necessary and appropriate to
protect this information. Further, DHS will claim exemption from
subsection (c)(3) of the Privacy Act of 1974, as amended, pursuant to 5
U.S.C. 552a(k)(2) as is necessary and appropriate to protect this
information. 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:
[[Page 92]]
(i) 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.
(ii) 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.
(iii) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
(b) Additionally, this system contains records or information
recompiled from or created from information contained in other systems
of records that are exempt from certain provisions of the Privacy Act.
For these records or information only, the Secretary of Homeland
Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted this system from
the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3),
(c)(4); (d)(1)-(4); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(4)(I), (e)(5) and (e)(8); (f); and (g). Additionally, the Secretary
of Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted this
system from the following provisions of the Privacy Act, 5 U.S.C.
552a(c)(3); (d)(1)-(4); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and
(f). 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:
(i) From subsection (c)(3) and (c)(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.
(ii) From subsection (d) (Access to Records) because access to the
6records 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, 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.
(iii) 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.
(iv) 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 activities.
(v) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement by compromising
the existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(vi) 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, potential witnesses, and
confidential informants.
(vii) 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,
[[Page 93]]
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.
(viii) 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.
(ix) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
47. The Visa Security Program Records (VSPR) system of records
consists of electronic and paper records and will be used by the
Department of Homeland Security (DHS) U.S. Immigration and Customs
Enforcement (ICE). VSPR consists of information created in support of
the Visa Security Program, the purpose of which is to identify persons
who may be ineligible for a U.S. visa because of criminal history,
terrorism association, or other factors and convey that information to
the State Department, which decides whether to issue the visa. VSPR
contains records on visa applicants for whom a visa security review is
conducted. VSPR 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.
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, portions
of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), and (e)(4)(H), (e)(5) and (e)(8); (f); and
(g). Pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), this system is exempt
from the following provisions of the Privacy Act, subject to the
limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), (d),
(e)(1), (e)(4)(G), (e)(4)(H), and (f). 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
individual to the existence of an investigation in the form of a visa
security review predicated on classified, national security, law
enforcement, foreign government, or other sensitive information.
Disclosure of the accounting would therefore present a serious
impediment to ICE's Visa Security Program, immigration 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, thereby undermining the entire
investigative process.
(b) From subsection (d) (Access to Records) because access to the
records contained in this system of records could alert the individual
to the existence of an investigation in the form of a visa security
review predicated on classified, national security, law enforcement,
foreign government, or other sensitive information. Revealing the
existence of an otherwise confidential investigation could also provide
the visa applicant an opportunity to conceal adverse information or take
other actions that could thwart investigative efforts; and reveal the
identity of other individuals with information pertinent to the visa
security review, thereby providing an opportunity for the applicant to
interfere with the collection of adverse or other relevant information
from such individuals. Access to the records would therefore present a
serious impediment to the enforcement of Federal immigration laws, law
enforcement efforts and/or efforts to preserve national security.
Amendment of the records could interfere with ICE's ongoing
investigations and law enforcement activities and would impose an
impossible administrative burden by requiring investigations to be
continuously reinvestigated. In addition, permitting access and
amendment to such information could disclose classified and other
security-sensitive information that could be detrimental to national or
homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations of visa applications, 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 interest of effective enforcement of
Federal immigration laws, it is appropriate to retain all information
that may be relevant to the determination whether an individual is
eligible for a U.S. visa.
(d) From subsection (e)(2) (Collection of Information From
Individuals) because requiring that information be collected from the
visa applicant would alert the subject to the fact of an investigation
in the form of a visa security review, and to the existence of adverse
information about the individual, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede immigration enforcement
activities in that it could compromise investigations by: Revealing the
existence of an otherwise confidential investigation and thereby provide
an opportunity for the visa applicant to conceal adverse information, or
take other actions that could thwart investigative efforts; Reveal the
identity of other individuals with information pertinent to the visa
security review, thereby providing an opportunity for the applicant to
interfere
[[Page 94]]
with the collection of adverse or other relevant information from such
individuals; or reveal the identity of confidential informants, which
would negatively affect the informant's usefulness in any ongoing or
future investigations and discourage members of the public from
cooperating as confidential informants in any future investigations.
(f) From subsections (e)(4)(G) and (H) (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 and immigration enforcement
efforts as described above.
(g) From subsection (e)(5) (Collection of Information) because in
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 (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) because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on DHS and other agencies and could
alert the subjects of counterterrorism, law enforcement, or intelligence
investigations to the fact of those investigations when not previously
known.
(i) From subsection (g) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
48. The DHS/ICE-011 Immigration and Enforcement Operational Records
system of records consists of electronic and paper records and will be
used by DHS and its components. The DHS/ICE-011 Immigration and
Enforcement Operational Records 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; and national security and intelligence activities. The DHS/
ICE-011 Immigration and Enforcement Operational Records 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 the
following provisions of the Privacy Act, subject to the limitations set
forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(5), and (e)(8); (f); and (g) pursuant to 5
U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has
exempted this system from the following provisions of the Privacy Act,
subject to the limitations set forth in 5 U.S.C. 552a(c)(3); (d);
(e)(1), (e)(4)(G), (e)(4)(H); and (f) pursuant to 5 U.S.C. 552a(k)(2).
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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously reinvestigated. In addition,
permitting access and amendment to such information could disclose
security-sensitive information that could be detrimental to homeland
security.
[[Page 95]]
(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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by: Revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(f) From subsections (e)(4)(G) and (H) (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: Refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
49. The DHS/USCIS--009 Compliance Tracking and Management System of
Records consists of electronic and paper files that will be used by DHS
and its components. This system of records will be used to perform a
range of information management and analytic functions involving
minimizing misuse, abuse, discrimination, breach of privacy, and
fraudulent use of SAVE and E-Verify. The Secretary of Homeland Security
has exempted this system from the following provisions of the Privacy
Act, subject to the limitation 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)(2). 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 the 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 the investigation, and reveal
investigative interest on the part
[[Page 96]]
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
impossible administrative burden by requiring investigations to be
continuously 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 interest 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), (H), and (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.
50. The Immigration and Customs Enforcement (ICE)--006 Intelligence
Records System (IIRS) consists of electronic and paper records and will
be used by the Department of Homeland Security (DHS). IIRS 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 thereunder; and national security and intelligence
activities. IIRS contains information that is collected by other federal
and foreign government agencies and may contain personally identifiable
information. Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy
Act, portions of this system are exempt from 5 U.S.C. 552a(c)(3) and
(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and
(e)(8); (f), and (g). Pursuant to 5 U.S.C. 552a(k)(2), this system is
exempt from the following provisions of the Privacy Act, subject to the
limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), (d),
(e)(1), (e)(4)(G), (e)(4)(H), and (f). 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 the 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by:
[[Page 97]]
revealing the existence of an otherwise confidential investigation and
thereby provide an opportunity for the subject of an investigation to
conceal evidence, alter patterns of behavior, or take other actions that
could thwart investigative efforts; reveal the identity of witnesses in
investigations, thereby providing an opportunity for the subjects of the
investigations or others to harass, intimidate, or otherwise interfere
with the collection of evidence or other information from such
witnesses; or reveal the identity of confidential informants, which
would negatively affect the informant's usefulness in any ongoing or
future investigations and discourage members of the public from
cooperating as confidential informants in any future investigations.
(f) From subsections (e)(4)(G) and (H) (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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
51. The DHS/ALL--027 The History of the Department of Homeland
Security System of Records consists of electronic and paper records and
will be used by DHS and its components. The DHS/ALL--027 The History of
the Department of Homeland Security 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
thereunder; national security and intelligence activities; and
protection of the President of the United States or other individuals
pursuant to section 3056 and 3056A of Title 18. The DHS/ALL--027 The
History of the Department of Homeland Security System of Records contain
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 the following provisions
of the Privacy Act, subject to limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(4)(I), (e)(5), (e)(8), (e)(12); (f); (g)(1); and (h) pursuant to 5
U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has
exempted 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), (k)(3), and (k)(5). 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
[[Page 98]]
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 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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement 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 (e)(12) (Computer Matching) if the agency is a
recipient agency or a source agency in a matching program with a non-
Federal agency, with respect to any establishment or revision of a
matching program, at least 30 days prior to conducting such program,
publish in the Federal Register notice of such establishment or
revision.
(j) From subsection (g)(1) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
(k) From subsection (h) (Legal Guardians) the parent of any minor,
or the legal guardian of any individual who has been declared to be
incompetent due to physical or mental incapacity or age by a court of
competent jurisdiction, may act on behalf of the individual.
52. The DHS/ALL--031 ISE SAR Initiative System of Records consists
of electronic records and will be used by DHS and its components. The
DHS/ALL--031 ISE SAR Initiative 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; and
protection of the President of the U.S. or other individuals pursuant to
Section 3056 and 3056A of Title 18. The DHS/ALL--031 ISE SAR Initiative
System of Records contains information that is collected by, on behalf
of, in support of, or in cooperation with DHS, its components, as well
as other federal, state, local, tribal, or foreign agencies or private
sector organization 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 the following provisions of the Privacy
Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and
(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I),
(e)(5), (e)(8), and (e)(12); (f); (g)(1); and (h) of the Privacy Act
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland
Security has exempted this system from the following provisions of the
Privacy Act, subject to the limitation set forth in 5 U.S.C. 552a(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) 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:
[[Page 99]]
(a) From subsection (c)(3) and (c)(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, 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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement 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 (e)(12) (Computer Matching) if the agency is a
recipient agency or a source agency in a matching program with a non-
Federal agency, with respect to any establishment or revision of a
matching program, at least 30 days prior to conducting such program,
publish in the Federal Register notice of such establishment or
revision.
(j) From subsection (g)(1) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
(k) From subsection (h) (Legal Guardians) the parent of any minor,
or the legal guardian of any individual who has been declared to be
incompetent due to physical or mental incapacity or age by a court of
competent jurisdiction, may act on behalf of the individual.
53. The DHS/USCIS-012 CIDR System of Records consists of electronic
and paper records and will be used by DHS and its components. The DHS/
USCIS-012 CIDR 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 thereunder; 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/USCIS-012 CIDR System of Records contains information
that is collected by, on behalf of, in support of, or in
[[Page 100]]
cooperation with DHS and its components and may contain PII collected by
other federal, state, local, tribal, foreign, or international
government agencies. The Secretary of Homeland Security has exempted
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) and
(k)(2). 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 the 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 could 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 the 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 impossible administrative burden by requiring
investigations to be continuously 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.
54. The DHS/USCG--008 Courts Martial Case Files System of Records
consists of electronic and paper records and will be used by DHS/USCG.
The DHS/USCG--008 Courts Martial Case Files System of Records is a
repository of information held by DHS/USCG 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 thereunder; and national security and
intelligence activities. The DHS/USCG--008 Courts Martial Case Files
System of Records contains information that is collected by, on behalf
of, in support of, or in cooperation with DHS/USCG 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 the
following provisions of the Privacy Act, subject to the limitations set
forth in 5 U.S.C. 552a(c)(3) and (c)(4); (d); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f); and (g)
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland
Security has exempted this system from the following provisions of the
Privacy Act, subject to the 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) and (k)(2). 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 (c)(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 the 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.
[[Page 101]]
(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 the 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 impossible administrative burden by requiring
investigations to be continuously 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 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 an investigation, thereby interfering with the related
investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information would impede law enforcement in that it could
compromise investigations by revealing the existence of an otherwise
confidential investigation and thereby provide an opportunity for the
subject of an investigation to conceal evidence, alter patterns of
behavior, or take other actions that could thwart investigative efforts;
reveal the identity of witnesses in investigations, thereby providing an
opportunity for the subjects of the investigations or others to harass,
intimidate, or otherwise interfere with the collection of evidence or
other information from such witnesses; or reveal the identity of
confidential informants, which would negatively affect the informant's
usefulness in any ongoing or future investigations and discourage
members of the public from cooperating as confidential informants in any
future investigations.
(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 in
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 (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' 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's: refusal
to amend a record; refusal to comply with a request for access to
records; failure to maintain accurate, relevant, timely and complete
records; or failure to otherwise comply with an individual's right to
access or amend records.
55. The DHS/FEMA-011 Training and Exercise Program Records System of
Records consists of electronic and paper records and will be used by
FEMA. The DHS/FEMA-011 Training and Exercise Program Records System of
Records consists of electronic and paper records and will be used by DHS
and its components and offices to maintain records about individual
training, including enrollment and participation information,
information pertaining to class schedules, programs, and instructors,
training trends and needs, testing and examination materials, and
assessments of training efficacy. The data will be collected by employee
name or other unique identifier. The collection and maintenance of this
information will assist DHS in meeting its obligation to train its
personnel and contractors in order to ensure that the agency mission can
be successfully accomplished. The DHS/FEMA-011 General Training and
Exercise Program Records System of Records contains information that is
[[Page 102]]
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 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)(6) where it states: ``For testing or examination material used
solely to determine individual qualifications for appointment or
promotion in the Federal service the disclosure of which would
compromise the objectivity or fairness of the testing or examination
process.''
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.
(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.
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 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
[[Page 103]]
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.
57. The DHS/OPS-002 National Operations Center Tracker and Senior
Watch Officer Logs Records System of Records consists of electronic and
paper records and will be used by DHS and its components. The DHS/OPS-
002 National Operations Center Tracker and Senior Watch Officer Logs
Records 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; and protection of the President of
the U.S. or other individuals pursuant to Section 3056 and 3056A of
Title 18. The DHS/OPS-002 National Operations Center Tracker and Senior
Watch Officer Logs Records 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.
(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
[[Page 104]]
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.
59. The DHS/NPPD-001 NICC Records System of Records consists of
electronic and paper records and will be used by DHS and its components.
The DHS/NPPD-001 NICC Records 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/NPPD-
001 NICC Records 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 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) and (k)(2). 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.
(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.
64. The DHS/USCIS-015 Electronic Immigration System-2 Account and
Case Management System of Records consists of electronic and paper
records and will be used by DHS and its components. The DHS/USCIS-015
Electronic Immigration System-2 Account and Case Management is a
repository of information held by USCIS to serve its mission of
processing immigration benefits. 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/USCIS-015 Electronic Immigration System-2 Account
and Case Management System of Records contains information that is
collected by, on behalf of, in support of, or in cooperation with DHS
and its components
[[Page 105]]
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)(2): 5 U.S.C. 552a(c)(3); (d);
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Additionally, 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), 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.
Exemptions from these particular subsections are justified, on a case-
by-case basis 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/or
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.
65. The DHS/USCIS-016 Electronic Immigration System-3 Automated
Background Functions System of Records consists of electronic and paper
records and will be used by DHS and its components. The DHS/USCIS-016
Electronic Immigration System-3 Automated Background Functions System of
Records is a repository of information held by USCIS to serve its
mission of processing immigration benefits. 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/USCIS-016 Electronic Immigration
System-3 Automated Background Functions 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)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I); and (f). Additionally, 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), 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. Exemptions from these
particular subsections are justified, on a case-by-case basis 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
[[Page 106]]
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/or
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.
66. The DHS/ALL-030 Use of the Terrorist Screening Database System
of Records consists of electronic and paper records and will be used by
DHS and its Components. The DHS/ALL-030 Use of the Terrorist Screening
Database System of Records is a repository of information held by DHS in
connection with its several and varied missions and functions,
including, the enforcement of civil and criminal laws; investigations,
inquiries, and proceedings thereunder; and national security and
intelligence activities. The Terrorist Screening Database belongs to the
Department of Justice (DOJ)/Federal Bureau of Investigation (FBI). DHS
does not change or alter these records. All records within the DHS/ALL-
030 Use of the Terrorist Screening Database System of Records are
collected and disseminated by the DOJ/FBI and are covered by the DOJ/
FBI-019, ``Terrorist Screening Records Center System,'' 72 FR 77846
(Dec. 14, 2011). Because DHS does not make any changes to the records
obtained from DOJ/FBI, the same exemptions outlined in the DOJ/FBI SORN,
and reasons provided in its implementing regulations for use of such
exemptions at 28 CFR 16.96, transfer and apply. The Secretary of
Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted this
system from the following provisions of the Privacy Act: 5 U.S.C.
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(5), (e)(8), and
(g). When a record has been received from DOJ/FBI-019 Terrorist
Screening Records System of Records and has been exempted in that source
system, DHS will claim the same exemptions for those records that are
claimed for that original primary system of records from which they
originated and claims any additional exemptions set forth here.
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
[[Page 107]]
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 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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement by compromising
the existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(f) 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.
(g) 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.
(h) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
67. The DHS/FEMA-012 Suspicious Activity Reporting System of Records
consists of electronic and paper records and will be used by DHS/FEMA
and its components. The DHS/FEMA--012 Suspicious Activity Reporting
System of Records is a repository of information held by DHS/FEMA to
serve its mission to support our citizens and first responders to ensure
that as a nation we work together to build, sustain, and improve our
capability to prepare for, protect against, respond to, recover from,
and mitigate all hazards. This system also supports certain other DHS/
FEMA 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/FEMA-012 Suspicious Activity Reporting System of
Records contains information that is collected by, on behalf of, in
support of, or in cooperation with DHS/FEMA 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 the
following provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2);
(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 case-
by-case basis 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/FEMA 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/FEMA 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
[[Page 108]]
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/FEMA 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.
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 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 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.
69. 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
[[Page 109]]
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.
(a) The Secretary of Homeland Security has exempted this system from
certain provisions of the Privacy Act as follows:
(1) 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).
(2) 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).
(3) 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).
(4) Pursuant to 5 U.S.C. 552a(k)(1), the system is exempt from
(d)(1), (d)(2), (d)(3), and (d)(4).
(5) 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).
(6) 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).
(b) 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:
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) 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
[[Page 110]]
themselves in the system would undermine investigative efforts and
reveal the identities of witnesses, and potential witnesses, and
confidential informants.
(7) 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.
(8) 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.
(9) From subsection (g)(1) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
70. DHS/USCIS-ICE-CBP-001 Alien File, Index, and National File
Tracking System of Records consists of electronic and paper records and
will be used by USCIS, ICE, and CBP. DHS/USCIS-ICE-CBP-001 Alien File,
Index, and National File Tracking 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
thereunder; and national security and intelligence activities. DHS/
USCIS-ICE-CBP-001 Alien File, Index, and National File Tracking 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, territorial, foreign, or international government
agencies. The Secretary of Homeland Security has exempted this system
from the following provisions of the Privacy Act pursuant to 5 U.S.C.
552a(j)(2): 5 U.S.C. 552a(c)(3) and (c)(4), (d), (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12), (f), (g)(1),
and (h). Additionally, the Secretary of Homeland Security has exempted
this system from the following provisions of the Privacy Act pursuant to
5 U.S.C. 552a(k)(1) and (k)(2): 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 may be 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, 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 activities.
(e) From subsection (e)(3) (Notice to Individuals) because providing
such detailed information could impede law enforcement by compromising
the existence of a confidential investigation or reveal the identity of
witnesses, DHS employees, 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
[[Page 111]]
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,
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
impede DHS officials' ability to effectively use their investigative
training and exercise 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 (e)(12) (Computer Matching) if the agency is a
recipient agency or a source agency in a matching program with a non-
Federal agency, with respect to any establishment or revision of a
matching program, at least 30 days prior to conducting such program,
publish in the Federal Register notice of such establishment or
revision.
(j) From subsection (g)(1) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act. (k)
From subsection (h) (Legal Guardians) if the parent of any minor, or the
legal guardian of any individual who has been declared to be incompetent
due to physical or mental incapacity or age by a court of competent
jurisdiction, is acting on behalf of the individual.
71. The Department of Homeland Security (DHS)/Transportation
Security Administration (TSA)-021 TSA Pre[check] \TM\ Application
Program System of Records consists of electronic and paper records and
will be used by DHS/TSA. The DHS/TSA-021 Pre[check] \TM\ Application
Program System of Records is a repository of information held by DHS/TSA
on individuals who voluntarily provide personally identifiable
information (PII) to TSA in return for enrollment in a program that will
make them eligible for expedited security screening at designated
airports. This System of Records contains PII in biographic application
data, biometric information, pointer information to law enforcement
databases, payment tracking, and U.S. application membership decisions
that support the TSA Pre[check] \TM\ Application Program membership
decisions. The DHS/TSA-021 TSA Pre[check] \TM\ Application Program
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 PII collected by other federal, state, local, tribal,
territorial, or foreign government agencies. The Secretary of Homeland
Security, pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), has exempted this
system from the following provisions of the Privacy Act: 5 U.S.C.
552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); and (f). Where a
record received from another system has been exempted in that source
system under 5 U.S.C. 552a(k)(1) and (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 set forth here. 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 also would 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
[[Page 112]]
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), (H), and (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 the 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, potential witnesses, and confidential
informants.
72. The DHS/ICE-014 Homeland Security Investigations Forensic
Laboratory System of Records consists of electronic and paper records
that will be used by DHS and its components. The DHS/ICE-014 Homeland
Security Investigations Forensic Laboratory System of Records contains
records of evidence and cases submitted to the HSI-FL. This information
will include information on the individual submitting the request,
identify the evidence submitted, track the evidence as it moves
throughout the HSI-FL, capture case notes and results of examinations,
store electronic images of evidence, and produce reports of findings.
Other case-related records are maintained, including descriptions of
expert witness testimony provided by HSI-FL employees. Records in the
DHS/ICE-014 Homeland Security Investigations Forensic Laboratory System
of Records also include the library of genuine, altered, and counterfeit
travel and identity documents provided to the HSI-FL by international
organizations, government agencies, and law enforcement organizations
from across the United States and around the world to research methods
of document production and authenticate documents through comparative
forensic examinations. The DHS/ICE-014 Homeland Security Investigations
Forensic Laboratory 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
(PII) collected by other federal, state, local, tribal, foreign, or
international government agencies. The Secretary of the Department of
Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted this
system from the following provisions of the Privacy Act, subject to
limitations set forth in 5 U.S.C. 552a(c)(3), (c)(4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f);
and (g). Additionally, the Secretary of Homeland Security, pursuant to 5
U.S.C. 552a(k)(2), has exempted 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). Where a record received from another system has been exempted in
that source system under 5 U.S.C. 552a(j)(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 set forth here. 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, it is appropriate to retain all information
that may aid in establishing patterns of unlawful activity.
[[Page 113]]
(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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement 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.
73. The DHS/NPPD--002 Chemical Facility Anti-Terrorism Standards
Personnel Surety Program System of Records consists of electronic and
paper records and will be used by DHS and its components. The DHS/NPPD--
002 Chemical Facility Anti-Terrorism Standards Personnel Surety Program
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 thereunder; and
national security and intelligence activities. The DHS/NPPD--002
Chemical Facility Anti-Terrorism Standards Personnel Surety Program
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 the
following provisions of the Privacy Act, subject to limitations set
forth therein: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I); and (f). These exemptions are made pursuant to 5 U.S.C.
552a(k)(1) and (k)(2).
In addition to records under the control of DHS, the DHS/NPPD--002
Chemical Facility Anti-Terrorism Standards Personnel Surety Program
System of Records may include records originating from systems of
records of other law enforcement and intelligence agencies, which may be
exempt from certain provisions of the Privacy Act. DHS does not,
however, assert exemption from any provisions of the Privacy Act with
respect to information submitted by high-risk chemical facilities.
To the extent the DHS/NPPD--002 Chemical Facility Anti-Terrorism
Standards Personnel Surety Program System of Records contains records
originating from other systems of records, DHS will rely on the
exemptions claimed for those records in the originating systems of
records. 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
[[Page 114]]
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, potential witnesses, and
confidential informants.
74. The DHS/CBP-022 Electronic Visa Update System (EVUS) System of
Records consists of electronic and paper records and will be used by DHS
and its components. The DHS/CBP-022 EVUS System of Records is a
repository of information held by DHS in connection with its several and
varied missions and functions, including the enforcement of civil and
criminal laws; investigations, inquiries, and proceedings thereunder;
national security and intelligence activities. This system of records
covers information 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. As part of the
process of determining EVUS eligibility or admissibility to the United
States, CBP collects two types of data for which it claims different
exemptions.
(a) CBP will not assert any exemption to limit an individual from
accessing or amending his or her record under subsection 552a(d) with
respect to information maintained in the system as it relates to data
submitted by or on behalf of a person who travels to visit the United
States and crosses the border, nor shall an exemption be asserted with
respect to the resulting determination (approval or denial). However,
pursuant to 5 U.S.C. 552a(j)(2), CBP will not disclose the fact that a
law enforcement or intelligence agency has sought particular records
because it may affect ongoing law enforcement activities, and thus, the
Secretary of Homeland Security has exempted such records covered by this
system from sections (c)(3), (e)(8), and (g) of the Privacy Act of 1974,
as amended, as is necessary and appropriate to protect this information.
Further, DHS will claim exemption from section (c)(3) of the Privacy Act
of 1974, as amended, pursuant to 5 U.S.C. 552a(k)(2) as is necessary and
appropriate to protect this information.
(b) Additionally, this system contains law enforcement and other
derogatory records or information recompiled from or created from
information contained in other systems of records that are exempt from
certain provisions of the Privacy Act, and possibly relied upon as the
basis for denial of an EVUS application. For these records or
information only, the Secretary of Homeland Security, pursuant to 5
U.S.C. 552a(j)(2), has exempted this system from the following
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d)(1)-(4);
(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), and
(e)(8); (f); and (g). Additionally, the Secretary of Homeland Security,
pursuant to 5 U.S.C. 552a(k)(2), has exempted this system from the
following provisions of the Privacy Act, 5 U.S.C. 552a(c)(3); (d)(1)-
(4); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f).
Exemptions from these particular subsections cited above under (a)
and (b) are justified, on a case-by-case basis to be determined at the
time a request is made, for the following reasons:
(i) From subsection (c)(3) and (c)(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.
(ii) From subsection (d) (Access and Amendment 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,
[[Page 115]]
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.
(iii) 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.
(iv) 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 activities.
(v) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement by compromising
the existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(vi) 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, potential witnesses, and
confidential informants.
(vii) 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.
(viii) 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.
(ix) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
75. The DHS/ICE-015 LeadTrac System of Records consists of
electronic and paper records and will be used by ICE investigative and
homeland security personnel. The DHS/ICE-015 LeadTrac System of Records
is a repository of information held by ICE for analytical and
investigative purposes. The system is used to conduct research
supporting the production of law enforcement activities; provide lead
information for investigative inquiry and follow-up; assist in the
conduct of ICE criminal and administrative investigations; assist in the
disruption of terrorist or other criminal activity; and discover
previously unknown connections among existing ICE investigations. The
DHS/ICE-015 LeadTrac System of Records contains aggregated data from ICE
and DHS law enforcement and homeland security IT systems, as well as
data uploaded by ICE personnel for analysis from various public,
private, and commercial sources during the course of an investigation or
analytical project. The Secretary of Homeland Security, pursuant to 5
U.S.C. 552a(j)(2), has exempted this system from the following
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f);
and (g). Additionally, the Secretary of Homeland Security, pursuant to 5
U.S.C. 552a(k)(2), has exempted this system from the following
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d); (e)(1),
(e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). When a record received from
another system has been exempted in that source system under 5 U.S.C.
552a(j)(2) 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 set
forth here.
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
[[Page 116]]
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. Disclosure of corrections or notations
of dispute may impede investigations by requiring DHS to inform each
witness or individual contacted during the investigation of each
correction or notation pertaining to information provided them during
the investigation.
(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 classified and
other 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 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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement 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 establishing
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, 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.
76. The DHS/CBP-023 Border Patrol Enforcement Records (BPER) System
of Records consists of electronic and paper records and will be used by
DHS and its components. The DHS/CBP-023 BPER System of Records is a
repository of information held by DHS/CBP 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; and national security and intelligence
activities. The DHS/CBP-023 BPER 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, pursuant to 5 U.S.C. 552a(j)(2), has exempted this system from
the following provisions of the Privacy Act: 5 U.S.C. 552a (c)(3),
(c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5),
(e)(8); and (g). Additionally, the Secretary of Homeland Security,
pursuant to 5 U.S.C. 552a(k)(2), has exempted this system from the
following provisions of the Privacy Act: 5 U.S.C. 552a (c)(3); (d);
(e)(1), (e)(4)(G), and (e)(4)(H). Exemptions from these particular
subsections are justified, on a case-by-case
[[Page 117]]
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, 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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement by compromising
the existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (e)(4)(H) (Agency Requirements)
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.
77. The DHS/USCG-031 USCG Law Enforcement (ULE) System of Records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/USCG-031 USCG Law Enforcement (ULE) 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; and national security and
intelligence activities. The DHS/USCG-031 USCG Law Enforcement (ULE)
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, pursuant to 5 U.S.C. 552a(j)(2), has
exempted this system from the following provisions of the Privacy Act: 5
U.S.C. 552a (c)(3-4); (d); (e)(1-3), (e)(5), (e)(8); and (g).
Additionally, the Secretary of Homeland Security, pursuant to 5 U.S.C.
552a(k)(2) has exempted this system from the following provisions of the
Privacy Act: 5 U.S.C. 552a (c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I); and (f). When a record received from another system
[[Page 118]]
has been exempted in that source system under 5 U.S.C. 552a(j)(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 set forth here.
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, 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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement by compromising
the existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(f) 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.
(g) 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.
(h) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
78. The DHS/ALL-039 Foreign Access Management System of Records
consists of electronic and paper records and will be used by DHS and its
components. The DHS/ALL-039 Foreign Access Management 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; and national security and intelligence
activities. The DHS/ALL-039 Foreign Access Management 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, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5),
has exempted this system from the following provisions of the Privacy
Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I);
and (f). When a record received from another system has been exempted in
that source system under 5 U.S.C. 552a(j)(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 set forth here. 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:
[[Page 119]]
(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 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. When an
investigation has been completed, information on disclosures made may
continue to be exempted if the fact that an investigation occurred
remains sensitive after completion.
(b) From subsection (d) (Access and Amendment 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.
79. The DHS/CBP-024 CBP Intelligence Records System (CIRS) System of
Records consists of electronic and paper records and will be used by DHS
and its components. The CIRS 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; and
national security and intelligence activities. The CIRS 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, pursuant to 5 U.S.C. 552a(j)(2), has exempted this
system from the following provisions of the Privacy Act: 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(4)(I); (e)(5), and (e)(8); (f); and (g). Additionally, the Secretary
of Homeland Security, pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), has
exempted this system from the following provisions of the Privacy Act, 5
U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and
(f). When this system receives a record from another system exempted in
that source system under 5 U.S.C. 552a(k)(1), (k)(2), or (j)(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 set forth here. 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.
Information on a completed investigation may be withheld and exempt from
disclosure if the fact that an investigation occurred remains sensitive
after completion.
[[Page 120]]
(b) From subsection (d) (Access and Amendment 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 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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement 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 and amendment 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, amend, 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) to the extent that the system is exempt from
other specific subsections of the Privacy Act relating to individuals'
rights to access and amend their records contained in the system.
Therefore, DHS is not required to establish rules or procedures pursuant
to which individuals may seek a civil remedy for the agency's refusal to
amend a record, refusal to comply with a request for access to records,
failure to maintain accurate, relevant timely and complete records, or
its failure to otherwise comply with an individual's right to access or
amend records.
80. The DHS/ICE-007 Criminal History and Immigration Verification
(CHIVe) System of Records consists of electronic and paper records and
will be used by DHS and its components. The CHIVe System of Records is a
repository of information held by DHS in connection with its several and
varied missions and functions, including the enforcement of civil and
criminal laws; investigations, inquiries, and proceedings thereunder;
and national security and intelligence activities. The CHIVe 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, pursuant to 5 U.S.C. 552a(j)(2), has
exempted this system 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)(4)(I), (e)(5), (e)(8); (f); and (g). Additionally, the
Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), has
exempted this system 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).
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
[[Page 121]]
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. Information on a
completed investigation may be withheld and exempt from disclosure if
the fact that an investigation occurred remains sensitive after
completion.
(b) From subsection (d) (Access and Amendment 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 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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement 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.
(j) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
81. The DHS/ICE-016 FALCON Search and Analysis (FALCON-SA) System of
Records consists of electronic and paper records and will be used by DHS
and its components. The FALCON-SA System of Records is a repository of
information held by DHS in connection with its several and varied
missions and functions, including the enforcement of civil and criminal
laws; investigations, inquiries, and proceedings thereunder; and
national security and intelligence activities. The FALCON-SA 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 the
following provisions of the Privacy Act, subject to limitations set
forth in 5 U.S.C. 552a(c)(3) and (c)(4): (d); (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). Additionally, the Secretary of Homeland Security
has exempted 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),
[[Page 122]]
(e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C.
552a(k)(2). 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.
Information on a completed investigation may be withheld and exempt from
disclosure if the fact that an investigation occurred remains sensitive
after completion.
(b) From subsection (d) (Access and Amendment 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 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 activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement 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.
(j) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
82. The DHS/ALL-045 Statistical Immigration Data Production and
Reporting System of Records consists of electronic and paper records and
will be used by DHS and its Components. The DHS/ALL-045 Statistical
Immigration Data Production and Reporting 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/ALL-045 Statistical Immigration Data Production and Reporting
System of Records 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,
[[Page 123]]
local, tribal, foreign, or international government agencies.
For records created and aggregated by DHS OIS, the Secretary of
Homeland Security, pursuant to 5 U.S.C. 552a(k)(4), has exempted this
system from the following provisions of the Privacy Act: 5 U.S.C.
552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). In
addition to the reasons stated below, the reason for exempting the
system of records is that disclosure of statistical records (including
release of accounting for disclosures) would in most instances be of no
benefit to a particular individual since the records do not have a
direct effect on a given individual.
Where a record received from another system has been exempted in
that source system under 5 U.S.C. 552a(j)(2) 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 set forth here.
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 for records derived from DHS
operational systems 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 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. When an investigation
has been completed, information on disclosures made may continue to be
exempted if the fact that an investigation occurred remains sensitive
after completion.
(b) From subsection (d) (Access and Amendment to Records) because
access to the records contained in this system of records that are
derived from records from DHS operational systems 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, including
statistics records covered by this system that derived from records
originating from DHS operational systems.
(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.
[71 FR 20523, Apr. 21, 2006]
Editorial Note: For Federal Register citations affecting appendix C
to part 5, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
PART 7_CLASSIFIED NATIONAL SECURITY INFORMATION--Table of Contents
Sec.
7.1 Purpose.
7.2 Scope.
7.3 Definitions.
Subpart A_Administration
7.10 Authority of the DHS Chief Security Officer.
7.11 Components' responsibilities.
7.12 Violations of classified information requirements.
7.13 Judicial proceedings.
[[Page 124]]
Subpart B_Classified Information
7.20 Classification and declassification authority.
7.21 Classification of information, limitations.
7.22 Classification pending review.
7.23 Emergency release of classified information.
7.24 Duration of classification.
7.25 Identification and markings.
7.26 Derivative classification.
7.27 Declassification and downgrading.
7.28 Automatic declassification.
7.29 National Declassification Center.
7.30 Documents of permanent historical value.
7.31 Classification challenges.
7.32 Mandatory declassification review.
Authority: 5 U.S.C. 301; Pub. L. 107-296; E.O. 13526; 3 CFR, 1995
Comp., p. 333; E.O. 13142, 64 FR 66089, 3 CFR, 1999 Comp., p. 236; 32
CFR part 2001.
Source: 79 FR 44095, July 30, 2014, unless otherwise noted.
Sec. 7.1 Purpose.
The purpose of this part is to ensure that information within the
Department of Homeland Security (DHS) relating to the national security
is classified, safeguarded, and declassified pursuant to the provisions
of Executive Order 13526, and implementing directives from the
Information Security Oversight Office (ISOO) of the National Archives
and Records Administration (NARA).
Sec. 7.2 Scope.
(a) This part applies to all employees, detailees, and non-
contractor personnel inside and outside the Executive Branch who are
granted access to classified information by the DHS, in accordance with
the standards in Executive Order 13526, and its implementing directives,
and Executive Order 13549, ``Classified National Security Information
Program for State, Local, Tribal, and Private Sector Entities,'' and its
implementing directives.
(b) This part does not apply to contractors, grantees and other
categories of personnel falling under the purview of Executive Order
12829, National Industrial Security Program, as amended, and its
implementing directives.
(c) This part is independent of and does not affect any
classification procedures or requirements of the Atomic Energy Act of
1954, as amended (42 U.S.C. 2011 et seq.).
(d) This part does not, and is not intended to, create any right to
judicial review, or any other right or benefit or trust responsibility,
substantive or procedural, enforceable by a party against the United
States, its agencies or instrumentalities, its officers or employees, or
any other person. This part creates limited rights to administrative
review of decisions. This part does not, and is not intended to, create
any right to judicial review of administrative action.
Sec. 7.3 Definitions.
The terms defined or used in Executive Order 13526, and the
implementing directives in 32 CFR part 2001 and 2004 are applicable to
this part.
Subpart A_Administration
Sec. 7.10 Authority of the DHS Chief Security Officer.
(a) The DHS Chief Security Officer (hereafter ``Chief Security
Officer'') is designated as the Senior Agency Official as required by
section 5.4(d) of Executive Order 13526, and, except as specifically
provided elsewhere in this part, is authorized to administer the DHS
Classified National Security Information program pursuant to Executive
Order 13526.
(b) To the extent that 32 CFR part 2001 refers to the agency head or
``designee,'' the Chief Security Officer is such designee unless
determined otherwise by the Secretary. The Chief Security Officer may
further delegate the associated authorities.
(c) The Chief Security Officer shall, among other actions:
(1) Oversee and administer the DHS's program established under
Executive Order 13526;
(2) Promulgate implementing regulations;
(3) Establish and maintain DHS-wide security education and training
programs, to include implementation and management of mandatory training
for DHS officials who have been delegated original classification
authority and those who perform derivative classification actions and
suspension of such
[[Page 125]]
authority for failure to attend such training;
(4) Establish and maintain an ongoing self-inspection program that
shall include regularly reviewing representative samples of DHS's
original and derivative classification actions, correcting instances of
misclassification, and reporting annually to the Director of ISOO on the
DHS self-inspection program;
(5) Establish procedures to prevent unnecessary access to classified
information, including procedures that:
(i) Require that a need for access to classified information is
established before initiating administrative procedures to grant access;
and
(ii) Ensure that the number of persons granted access to classified
information is limited to the minimum necessary for operational and
security requirements and needs;
(6) Develop special contingency plans for the safeguarding of
classified information used in or near hostile or potentially hostile
areas;
(7) Coordinate with the DHS Chief Human Capital Officer, as
appropriate, to ensure that the performance contract or other system
used to rate personnel performance includes the management of classified
information as a critical element or item to be evaluated in the rating
of:
(i) Original classification authorities;
(ii) Security managers or security specialists; and
(iii) All other personnel whose duties significantly involve the
creation or handling of classified information, including persons who
apply derivative classification markings;
(8) Account for the costs associated with implementing this part and
report the cost to the Director of ISOO;
(9) Assign in a prompt manner personnel to respond to any request,
appeal, challenge, complaint, or suggestion concerning Executive Order
13526, that pertains to classified information that originated in a DHS
component that no longer exists and for which there is no clear
successor in function;
(10) Establish a secure capability to receive information,
allegations, or complaints regarding over-classification or incorrect
classification and to provide a ready source for guidance on proper
classification;
(11) Report violations, take corrective measures and assess
appropriate sanctions as warranted, in accordance with Executive Order
13526;
(12) Oversee DHS creation and participation in special access
programs authorized under Executive Order 13526;
(13) Direct and administer DHS's personnel security program in
accordance with Executive Order 12968 and other applicable law;
(14) Direct and administer DHS implementation and compliance with
the National Industrial Security Program in accordance with Executive
Order 12829 and other applicable guidance; and
(15) Perform any other duties as the Secretary may designate.
(d) The Chief Security Officer shall maintain a current list of all
officials authorized pursuant to this part to originally classify or
declassify documents.
(e) The Chief Security Officer shall establish and maintain a means
for appointing, tracking, and training DHS officials who do or will
perform original and derivative classification actions.
(f) The Chief Security Officer shall administer a program for the
implementation, management, and oversight of access to and safeguarding
of classified information provided to state, local, tribal, and private
sector personnel pursuant to Executive Order 13549, ``Classified
National Security Information Program for State, Local, Tribal, and
Private Sector Entities,'' and its implementing directives.
(g) Nothing in this part will be interpreted to abrogate or affect
the responsibilities of the Director of National Intelligence under the
National Security Act of 1947, Public Law 235 (1947), as amended, and
E.O. 12333, United States Intelligence Activities (1981), as amended, or
any responsibilities of the Under Secretary for Intelligence and
Analysis conferred by presidential or intelligence community directive
implicating those authorities, insofar as those authorities concern
classified sources, methods, and activities, classified national
intelligence, or sensitive
[[Page 126]]
compartmented information and are executed consistent with delegations
or designations of authority issued pursuant to the statutory authority
of the Secretary.
Sec. 7.11 Components' responsibilities.
Each DHS component shall appoint a security officer or security
liaison to implement this part. The security officer/security liaison
shall:
(a) Implement, observe, and enforce security regulations or
procedures within their component with respect to the classification,
declassification, safeguarding, handling, and storage of classified
national security information;
(b) Report violations of the provisions of this part to the Chief
Security Officer committed by employees of their component, as required
by implementing directives;
(c) Ensure that employees of their component attend mandatory
security education and training, as required by the DHS classified
information security procedures, to include those component officials
delegated the authority to classify information originally and those who
perform derivative classification actions;
(d) Continuously review the requirements for personnel access to
classified information as a part of the continuous need-to-know
evaluation, and initiate action to administratively withdraw or reduce
the level of access authorized, as appropriate; and
(e) Cooperate fully with any request from the Chief Security Officer
for assistance in the implementation of this part.
Sec. 7.12 Violations of classified information requirements.
(a) Any person who suspects or has knowledge of a violation of this
part, including the known or suspected loss or compromise of classified
information, shall promptly report such violations or possible
violations, pursuant to requirements set forth in DHS directives.
(b) DHS employees and detailees may be reprimanded, suspended
without pay, terminated from classification authority, suspended from or
denied access to classified information, or subject to other sanctions
in accordance with applicable law and DHS regulations or directives if
they:
(1) Knowingly, willfully, or negligently disclose to unauthorized
persons information properly classified under Executive Order 13526, or
its predecessor orders;
(2) Knowingly, willfully, or negligently classify or continue the
classification of information in violation of Executive Order 13526, or
its implementing directives; or
(3) Knowingly, willfully, or negligently create or continue a
special access program contrary to the requirements of Executive Order
13526; or,
(4) Knowingly, willfully, or negligently violate any other provision
of Executive Order 13526, or DHS implementing directives, or;
(5) Knowingly, willfully, or negligently grant eligibility for, or
allow access to, classified information in violation of Executive Order
13526, or its implementing directives, this part, or DHS implementing
directives promulgated by the Chief Security Officer.
Sec. 7.13 Judicial proceedings.
(a) Any DHS official or organization, except for the Office of
Inspector General in matters involving the Office of Inspector General
only, receiving an order or subpoena from a federal or state court, or
an administrative subpoena from a federal agency, to produce classified
information (see 6 CFR 5.41 through 5.49), required to submit classified
information for official DHS litigation purposes, or receiving
classified information from another organization for production of such
in litigation, shall notify the Office of the General Counsel, unless
the demand for production is made by the Office of the General Counsel,
and immediately determine from the agency originating the classified
information whether the information can be declassified. If
declassification is not possible, DHS representatives will take
appropriate action to protect such information, pursuant to the
provisions of this section.
(b) If a determination is made under paragraph (a) of this section
to produce
[[Page 127]]
classified information in a judicial proceeding in any manner, the DHS
General Counsel attorney, or the Office of Inspector General attorney,
if the matter involves the Office of Inspector General only, in
conjunction with the Department of Justice, shall take appropriate steps
to protect classified information in judicial proceedings and retrieve
the information when the information is no longer required in such
judicial proceedings, in accordance with the Department of Justice
procedures, and in Federal criminal cases, pursuant to the requirements
of Classified Information Procedures Act (CIPA), Public Law 96-456, 94
Stat. 2025, (18 U.S.C. App.), and the ``Security Procedures Established
Pursuant to Public Law 96-456, 94 Stat. 2025, by the Chief Justice of
the United States for the Protection of Classified Information,'' and
other applicable authorities.
Subpart B_Classified Information
Sec. 7.20 Classification and declassification authority.
(a) Top Secret original classification authority may only be
exercised by the Secretary and by officials with a demonstrable and
continuing need to exercise such authority and to whom such authority is
delegated in writing by the Secretary. The Chief Security Officer, as
the Senior Agency Official, is delegated authority to originally
classify information up to and including Top Secret. No official who is
delegated Top Secret original classification authority by the Secretary
may further delegate such authority.
(b) The Chief Security Officer may delegate Secret and Confidential
original classification authority to other officials with a demonstrable
and continuing need to exercise such authority. No official who is
delegated original classification authority by the Secretary or the
Chief Security Officer may further delegate such authority.
(c) Persons who are delegated original classification authority
shall attend mandatory classification training within 60 days of the
delegation, and annually thereafter. Persons who fail to attend
mandatory training shall have such authority suspended until such time
as the training occurs.
(1) Except for suspensions of the Inspector General's classification
authority, the Chief Security Officer may waive a suspension of
authority for no longer than 60 days following the due date of the
training when unavoidable circumstances exist that prevent the person
from attending the training.
(2) For cases involving suspension of the Inspector General's
classification authority under paragraph (c) of this section, only the
Secretary or Deputy Secretary may waive such a suspension.
(d) Officials authorized to classify information at a specified
level are also authorized to classify information at a lower level. In
the absence of an official authorized to exercise classification
authority, the person designated to act in lieu of such official may
exercise the official's classification authority.
(e) Declassification authority may be exercised by the official who
authorized the original classification, if that official is still
serving in the same position and has original classification authority;
the originator's current successor in function, if that individual has
original classification authority; a supervisory official of either the
originator or his or her successor in function, if the supervisory
official has original classification authority; or officials delegated
declassification authority by the Secretary or the Chief Security
Officer.
Sec. 7.21 Classification of information, limitations.
(a) Information may be originally classified only if all of the
following standards are met:
(1) An original classification authority is classifying the
information;
(2) The information is owned by, produced by or for, or is under the
control of the United States Government;
(3) The information falls within one or more of the categories of
information specified in section 1.4 of Executive Order 13526; and
(4) The original classification authority determines that the
unauthorized disclosure of the information reasonably could be expected
to cause identifiable and describable damage to the national security.
[[Page 128]]
(b) Information shall be classified as Top Secret, Secret, or
Confidential in accordance with and in compliance with the standards and
criteria in Executive Order 13526. No other terms shall be used to
identify United States classified information except as otherwise
provided by statute.
(c) If there is significant doubt about the need to classify
information it shall not be classified. If classification is warranted
but there is significant doubt about the appropriate level of
classification it shall be classified at the lower level.
(d) Original classification decisions made by a DHS original
classification authority shall be incorporated into a security
classification guide in a timely manner but no later than one year from
the date of the original decision. Such decisions shall be reported to
the Office of the Chief Security Officer, Administrative Security
Division, within thirty days following the original classification
decision.
(e) All DHS security classification guides shall be coordinated
through and receive the concurrence of the Office of the Chief Security
Officer, Administrative Security Division, prior to approval and
publication by an original classification authority.
(f) Information shall not be classified in order to:
(1) Conceal inefficiency, violations of law, or administrative
error;
(2) Prevent embarrassment to a person, organization, or agency;
(3) Restrain competition;
(4) Prevent or delay release of information that does not require
protection in the interest of national security.
(g) Information may not be reclassified after it has been
declassified and released to the public under proper authority unless:
(1) The reclassification is approved in writing by the Secretary
based on a document-by-document determination that the reclassification
of the information is required to prevent significant and demonstrable
damage to the national security;
(2) The reclassification of the information meets the standards and
criteria for classification pursuant to Executive Order 13526;
(3) The information may be reasonably recovered without bringing
undue attention to the information; and
(4) The reclassification action is reported promptly to the
Assistant to the President for National Security Affairs (National
Security Advisor) and the Director of ISOO.
(5) For documents in the physical and legal custody of the National
Archives and Records Administration that have previously been made
available for public use and determined to warrant reclassification per
paragraphs (g)(1) through (4) of this section, the Secretary shall
notify the Archivist of the United States, who shall suspend public
access pending approval by the Director of ISOO. Any such decision made
by the Director of ISOO may be appealed by the Secretary to the
President through the National Security Advisor.
(h) Information that has not previously been disclosed to the public
under proper authority may be classified or reclassified after DHS has
received a request for it under the Freedom of Information Act (5 U.S.C.
552), the Presidential Records Act, 44 U.S.C. 2204(c)(1), the Privacy
Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of
Executive Order 13526, section 3.5. When it is necessary to classify or
reclassify such information, it shall be done so on a document-by-
document basis with the personal participation of and under the
direction of the Secretary or Deputy Secretary.
Sec. 7.22 Classification pending review.
(a) Whenever persons who do not have original classification
authority originate or develop information that they believe requires
immediate classification and safeguarding, and no authorized original
classifier is available, that person shall:
(1) Safeguard the information in a manner appropriate for the
classification level they believe it to be;
(2) Apply the appropriate overall classification markings; and
(3) Within five working days, securely transmit the information to
the organization that has appropriate subject matter interest and
original classification authority.
[[Page 129]]
(b) When it is not clear which component would be the appropriate
original classifier, the information shall be sent to the Office of the
Chief Security Officer, Administrative Security Division, to determine
the appropriate organization.
(c) The applicable original classification authority shall decide
within 30 days of receipt whether the information warrants
classification pursuant to Executive Order 13526 and shall render such
decision in writing.
Sec. 7.23 Emergency release of classified information.
(a) The DHS Undersecretary for Management has delegated to certain
DHS employees the authority to disclose classified information to an
individual or individuals not otherwise eligible for access in emergency
situations when there is an imminent threat to life or in defense of the
homeland.
(b) In exercising this authority, the delegees shall adhere to the
following conditions:
(1) Limit the amount of classified information disclosed to a
minimum to achieve the intended purpose;
(2) Limit the number of individuals who receive it to only those
persons with a specific need-to-know;
(3) Transmit the classified information through approved
communication channels by the most secure and expeditious method
possible, or by other means deemed necessary in exigent circumstances;
(4) Provide instructions about what specific information is
classified and how it should be safeguarded. Physical custody of
classified information must remain with an authorized Federal Government
entity, in all but the most extraordinary circumstances as determined by
the delegated official;
(5) Provide appropriate briefings to the recipients on their
responsibilities not to disclose the information and obtain from the
recipients a signed DHS Emergency Release of Classified Information Non-
disclosure Form. In emergency situations requiring immediate verbal
release of information, the signed nondisclosure agreement memorializing
the briefing may be received after the emergency abates;
(6) Within 72 hours of the disclosure of classified information, or
the earliest opportunity that the emergency permits, but no later than 7
days after the release, the disclosing authority must notify the DHS
Office of the Chief Security Officer, Administrative Security Division,
and the originating agency of the information disclosed. A copy of the
signed nondisclosure agreements should be forwarded with the
notification, or as soon thereafter as practical.
(7) Release of information pursuant to this authority does not
constitute declassification of the information.
(8) Authority to disclose classified information under the above
conditions may not be further delegated.
Sec. 7.24 Duration of classification.
(a) At the time of original classification, original classification
authorities shall apply a date or event in which the information will be
automatically declassified.
(b) The original classification authority shall attempt to establish
a specific date or event that is not more than 10 years from the date of
origination in which the information will be automatically declassified.
If the original classification authority cannot determine an earlier
specific date or event it shall be marked for automatic declassification
10 years from the date of origination.
(c) If the original classification authority determines that the
sensitivity of the information requires classification beyond 10 years,
it may be marked for automatic declassification for up to 25 years from
the date of the original classification decision.
(d) Original classification authorities do not have the authority to
classify or retain the classification of information beyond 25 years
from the date of origination. The only exceptions to this rule are
information that would clearly and demonstrably be expected to reveal
the identity of a confidential human source or human intelligence
source, or, key design concepts of weapons of mass destruction. In these
instances, the information shall be marked for declassification based on
implementing directives issued pursuant to Executive Order 13526. In all
other instances, classification beyond 25 years shall only be
[[Page 130]]
authorized in accordance with Sec. 7.28 and Executive Order 13526.
Sec. 7.25 Identification and markings.
(a) Classified information, in all forms, must be marked in a manner
that is immediately apparent pursuant to the standards set forth in
section 1.6 of Executive Order 13526; 32 CFR part 2001, subpart B; and
internal DHS guidance approved and distributed by the Office of the
Chief Security Officer.
(b) Foreign government information shall retain its original
classification markings or be assigned a U.S. classification that
provides a degree of protection at least equivalent to that required by
the entity that furnished the information.
(c) Information assigned a level of classification under predecessor
Executive Orders shall remain classified at that level of
classification, except as otherwise provided herein, i.e., the
information is reclassified or declassified.
Sec. 7.26 Derivative classification.
(a) Derivative classification is defined as the incorporating,
paraphrasing, restating, or generating in a new form information that is
already classified, and marking the newly developed material consistent
with the classification markings that apply to the source information.
Information is also derivatively classified when classification is based
on instructions provided in a security classification guide.
(b) Persons need not possess original classification authority to
derivatively classify information based on source documents or
classification guides.
(c) Persons who perform derivative classification actions shall be
designated as authorized derivative classifiers as specified in
directives published by the Office of the Chief Security Officer.
(d) Persons who are designated as authorized derivative classifiers
shall attend mandatory classification training before performing
derivative classification actions, and once every two years thereafter.
Persons who fail to attend mandatory training shall have such authority
suspended until such time as the training occurs.
(1) Except for suspensions of the Office of Inspector General's
classification authority, the Chief Security Officer may waive the
suspension of authority for no longer than 60 days following the due
date of the training when unavoidable circumstances exist that prevent
the person from attending the training.
(2) For cases involving suspension of the Office of Inspector
General's classification authority under paragraph (d) of this section,
only the Secretary or Deputy Secretary may waive such a suspension.
(e) Persons who apply derivative classification markings shall
observe original classification decisions and carry forward to any newly
created documents the pertinent classification markings.
(f) Information classified derivatively from other classified
information shall be classified and marked in accordance with the
standards set forth in sections 2.1 and 2.2 of Executive Order 13526, 32
CFR part 2001, and internal DHS guidance provided by the Office of the
Chief Security Officer.
Sec. 7.27 Declassification and downgrading.
(a) Classified information shall be declassified as soon as it no
longer meets the standards for classification. Declassification and
downgrading is governed by part 3 of Executive Order 13526, implementing
ISOO directives at 32 CFR part 2001, subpart C, and applicable internal
DHS direction provided by the Office of the Chief Security Officer.
(b) Information shall be declassified or downgraded by the official
who authorized the original classification if that official is still
serving in the same position and has original classification authority,
the originator's successor if that position has original classification
authority, or a supervisory official of either if that position has
original classification authority, or, by officials delegated such
authority in writing by the Secretary or the Chief Security Officer, or,
pursuant to section 3.1.(e) of Executive Order 13526, the Director of
the Information Security Oversight Office.
[[Page 131]]
(c) It is presumed that information that continues to meet the
classification requirements under Executive Order 13526 requires
continued protection. In some exceptional cases during declassification
reviews, the need to protect classified information may be outweighed by
the public interest in disclosure of the information, and in these cases
the information should be declassified. If it appears that the public
interest in disclosure of the information may outweigh the need to
protect the information, the declassification reviewing official shall
refer the information with a recommendation for decision to the Chief
Security Officer. The Chief Security Officer shall review the
information and after consulting with the applicable original
classification authority and other components and agencies with
equities, make a recommendation to the Secretary on whether the public
interest in disclosure outweighs the damage to national security that
might reasonably be expected from disclosure. The Secretary shall decide
whether to declassify the information. The decision of the Secretary
shall be final. This provision does not amplify or modify the
substantive criteria or procedures for classification or create any
substantive or procedural rights subject to judicial review.
(d) Each component shall develop schedules for declassification of
records in the National Archives.
Sec. 7.28 Automatic declassification.
(a) Subject to paragraph (b) of this section and paragraphs 3.3(b)-
(d) and (g)-(j) of Executive Order 13526, all classified information
contained in records that are more than 25 years old that have been
determined to have permanent historical value shall be declassified
automatically on December 31st of the year that is 25 years from the
date of origin.
(b) At least one year before information is declassified
automatically under this section, the Chief Security Officer shall
notify the ISOO of any specific information that DHS proposes to exempt
from automatic declassification. The notification shall include:
(1) A description of the information;
(2) An explanation of why the information is exempt from automatic
declassification and must remain classified for a longer period of time;
and
(3) A specific date or event for declassification of the information
whenever the information exempted does not identify a confidential human
source or human intelligence source, or, key design concepts of weapons
of mass destruction.
(c) Proposed exemptions under this section shall be forwarded to the
Chief Security Officer. When the Chief Security Officer determines the
exemption request is consistent with this section, he or she will submit
the exemption request to the Executive Secretary of the Interagency
Security Classification Appeals Panel (ISCAP) for approval.
(d) Declassification guides that narrowly and precisely define
exempted information may be used to exempt information from automatic
declassification. Declassification guides must include the exemption
notification information detailed in paragraph (b) of this section, and
be approved pursuant to paragraph (c) of this section. The creation of
declassification guides to cite proposed or ISCAP-approved DHS
exemptions shall be coordinated through and processed by the Office of
the Chief Security Officer, Administrative Security Division.
Sec. 7.29 National Declassification Center.
(a) The Chief Security Officer and applicable components will
support the NARA, National Declassification Center (NDC), which was
established to streamline declassification processes, facilitate
quality-assurance measures, and implement standardized training
regarding the declassification of records determined to have permanent
historical value. The Chief Security Officer will assign DHS personnel
on an as-needed basis to address declassification matters and priorities
containing DHS equities.
(b) The Office of the Chief Security Officer shall provide the NDC
with all DHS classification and declassification guides that include
ISCAP-approved exemptions from automatic declassification.
[[Page 132]]
(c) The Chief Security Officer, or his designee, shall oversee DHS-
wide support to the NDC, including representing DHS in consultations
with the NDC Director.
Sec. 7.30 Documents of permanent historical value.
The original classification authority, to the greatest extent
possible, shall declassify classified information contained in records
determined to have permanent historical value under 44 U.S.C. 2107
before they are accessioned into the National Archives.
Sec. 7.31 Classification challenges.
(a) Authorized holders of information classified by DHS or any other
agency who, in good faith, believe that specific information is
improperly or unnecessarily classified are encouraged and expected to
challenge the classification status of that information pursuant to
section 1.8 of Executive Order 13526. Authorized holders may submit
classification challenges in writing to the original classification
authority with jurisdiction over the information in question. If an
original classification authority cannot be determined, the challenge
shall be submitted to the Office of the Chief Security Officer,
Administrative Security Division. The challenge need not be more
specific than a question as to why the information is or is not
classified, or is classified at a certain level.
(b) If anonymity of the challenger is requested, the challenger may
submit the challenge to the Office of the Chief Security Officer,
Administrative Security Division. The Administrative Security Division
will act as an agent for the challenger and the identity of the
challenger will be redacted.
(c) The original classification authority shall no later than 60
days from receipt of the challenge, provide a written response to the
submitter. The original classification authority may classify or
declassify the information subject to the challenge and, if applicable,
state specific reasons why the original classification determination was
proper. If the original classification authority is not able to respond
within 60 days, he or she shall inform the individual who filed the
challenge in writing of that fact, and the anticipated determination
date.
(d) The individual challenging the classification will be notified
of the determination made by the original classification authority and
that the individual may appeal this determination to the Chief Security
Officer, or in cases involving appeals by Office of Inspector General
employees, the Secretary or Deputy Secretary. Upon receipt of such
appeals, the Chief Security Officer, or in cases involving appeals by
Office of Inspector General employees, the Secretary or Deputy
Secretary, shall convene a DHS Classification Appeals Panel (DHS/CAP).
The DHS/CAP shall, at a minimum, consist of representatives from the
Office of the Chief Security Officer, the Office of General Counsel, and
a representative from the component having jurisdiction over the
information. Additional members may be added as determined by the Chief
Security Officer. The DHS/CAP shall be chaired by the Chief Security
Officer.
(e) If the requester files an appeal through the DHS/CAP, and the
appeal is denied, the requester shall be notified of the right to appeal
the denial to the Interagency Security Classification Appeals Panel
(ISCAP) pursuant to section 5.3 of Executive Order 13526, and the rules
issued by the ISCAP pursuant to section 5.3 of Executive Order 13526.
(f) Any individual who challenges a classification and believes that
any action has been taken against him or her in retaliation or
retribution because of that challenge may report the facts to the Office
of Inspector General via its Hotline or Web site, or other appropriate
office.
(g) Nothing in this section shall prohibit a person from informally
challenging the classified status of information directly to the
original classification authority.
(h) Classification challenge provisions are not applicable to
documents required to be submitted for prepublication review or other
administrative process pursuant to an approved non-disclosure agreement.
(i) Requests for review of classified material for declassification
by persons other than authorized holders are governed by Sec. 7.32.
[[Page 133]]
Sec. 7.32 Mandatory declassification review.
(a) Any individual, as ``individual'' is defined by 5 U.S.C.
552a(a)(2) (with the exception of a foreign government entity or any
representative thereof), may request that classified information be
reviewed for declassification pursuant to the mandatory declassification
review provisions of section 3.5 of Executive Order 13526. Such requests
must be sent to the Departmental Disclosure Officer, Privacy Office, 245
Murray Lane SW., Building 410, Washington, DC 20528.
(b) The request must describe the document or material with enough
specificity to allow it to be located by the component with a reasonable
amount of effort. Components will generally consider deficient any
requests for declassification review of, for instance, broad categories
of information, entire file series of records, or similar non-specific
requests.
(1) When the description of the information in the request is
deficient, the component shall solicit as much additional identifying
information as possible from the requester.
(2) If the information or material requested cannot be obtained with
a reasonable amount of effort, the component shall provide the
requester, through the DHS Disclosure Officer, with written notification
of the reasons why no action will be taken and of the requester's right
to appeal.
(c) Requests for review of information that has been subjected to a
declassification review request within the preceding two years shall not
be processed. The DHS Disclosure Officer will notify the requester of
such denial.
(d) Mandatory Declassification Review provisions are not applicable
to documents required to be submitted for prepublication review or other
administrative process pursuant to an approved non-disclosure agreement.
(e) Requests for information exempted from search or review under
sections 701, 702, or 703 of the National Security Act of 1947, as added
and amended (50 U.S.C. 431-433), or other provisions of law, shall not
be processed. The DHS Disclosure Officer will notify the requester of
such denial.
(f) If documents or material being reviewed for declassification
under this section contain information that has been originally
classified by another government agency, the reviewing authority shall
notify the DHS Disclosure Officer. Unless the association of that
organization with the requested information is itself classified, the
DHS Disclosure Officer will then notify the requester of the referral.
(g) A DHS component may refuse to confirm or deny the existence, or
non-existence, of requested information when its existence or non-
existence, is properly classified.
(h) DHS components shall make a final determination on the request
as soon as practicable but within one year from receipt. When
information cannot be declassified in its entirety, components shall
make reasonable efforts to redact those portions that still meet the
standards for classification and release those declassified portions of
the requested information that constitute a coherent segment.
(i) DHS components shall notify the DHS Disclosure Officer of the
determination made in the processing of a mandatory review request. Such
notification shall include the number of pages declassified in full; the
number of pages declassified in part; and the number of pages where
declassification was denied.
(j) The DHS Disclosure Officer shall maintain a record of all
mandatory review actions for reporting in accordance with applicable
Federal requirements.
(k) The mandatory declassification review system shall provide for
administrative appeal in cases where the review results in the
information remaining classified. The requester shall be notified of the
results of the review and of the right to appeal the denial of
declassification. To address such appeals, the DHS Disclosure Office
shall convene a DHS Classification Appeals Panel (DHS/CAP). The DHS/CAP
shall, at a minimum, consist of representatives from the Disclosure
Office, the Office of the Chief Security Officer, the Office of General
Counsel, and a representative from the component having
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jurisdiction over the information. Additional members may be added as
determined by the DHS Disclosure Officer. The DHS/CAP shall be chaired
by the DHS Disclosure Officer.
(l) If the requester files an appeal through the DHS/CAP, and the
appeal is denied, the requester shall be notified of the right to appeal
the denial to the ISCAP pursuant to section 5.3 of Executive Order
13526, and the rules issued by the ISCAP pursuant to section 5.3 of
Executive Order 13526.
PART 9_RESTRICTIONS UPON LOBBYING--Table of Contents
Subpart A_General
Sec.
9.1 Conditions on use of funds.
9.2 Definitions.
9.3 Certification and disclosure.
Subpart B_Activities by Own Employees
9.11 Agency and legislative liaison.
9.15 Professional and technical services.
9.20 Reporting.
Subpart C_Activities by Other than Own Employees
9.23 Professional and technical services.
Subpart D_Penalties and Enforcement
9.31 Penalties.
9.32 Penalty procedures.
9.33 Enforcement.
Subpart E_Exemptions
9.41 Secretary of Defense.
Subpart F_Agency Reports
9.51 Semi-annual compilation.
9.52 Inspector General report.
Appendix A to Part 9--Certification Regarding Lobbying
Appendix B to Part 9--Disclosure Form To Report Lobbying
Authority: Sec. 319, Pub. L. 101-121, 103 Stat. 750 (31 U.S.C.
1352); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5 U.S.C.
301.
Source: 68 FR 10912, Mar. 6, 2003, unless otherwise noted.
Subpart A_General
Sec. 9.1 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative agreement to pay any
person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with any of the
following covered Federal actions: the awarding of any Federal contract,
the making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in appendix A to this part, that the
person has not made, and will not make, any payment prohibited by
paragraph (a) of this section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in appendix B to this part, if such
person has made or has agreed to make any payment using non appropriated
funds (to include profits from any covered Federal action), which would
be prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in appendix A to this part,
whether that person has made or has agreed to make any payment to
influence or attempt to influence an officer or employee of any agency,
a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with that loan insurance or
guarantee.
(e) Each person who requests or receives from an agency a commitment
[[Page 135]]
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in appendix B to this
part, if that person has made or has agreed to make any payment to
influence or attempt to influence an officer or employee of any agency,
a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with that loan insurance or
guarantee.
Sec. 9.2 Definitions.
For purposes of this part:
(a) Agency has the same meaning as provided in 5 U.S.C. 552(f), and
includes Federal executive departments and agencies as well as
independent regulatory commissions and Government corporations, as
defined in 31 U.S.C. 9101(1).
(b) The term covered Federal action:
(1) Means any of the following Federal actions:
(i) The awarding of any Federal contract;
(ii) The making of any Federal grant;
(iii) The making of any Federal loan;
(iv) The entering into of any cooperative agreement; and
(v) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
(2) Does not include receiving from an agency a commitment providing
for the United States to insure or guarantee a loan. Loan guarantees and
loan insurance are addressed independently within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR) (48 CFR Chapter 1) and any other acquisition contract for real or
personal property or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance that provides services instead of money, or
other assistance in the form of revenue sharing, loans, loan guarantees,
loan insurance, interest subsidies, insurance, or direct United States
cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided
in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450B). Alaskan Natives are included under the definition
of Indian tribe in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee or loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual appointed to a position in the Government pursuant
to title 5 of the United States Code, including any position by
temporary appointment or any appointment as an acting official as
outlined in section 1511(c) of the Homeland Security Act;
(2) A member of the uniformed services as defined in 37 U.S.C.
101(3);
(3) A special Government employee as defined in section 18 U.S.C.
202; and
(4) An individual who is a member of a Federal advisory committee,
as defined by the Federal Advisory Committee Act at 5 U.S.C. App. 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society,
[[Page 136]]
State, and local government, regardless of whether such entity is
operated for profit or not for profit. This term excludes an Indian
tribe, tribal organization, or any other Indian organization with
respect to expenditures specifically permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to professional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and sub grantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and
powers.
Sec. 9.3 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form,
if required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b)(1) Each person shall file a certification, and a disclosure
form, if required, upon receipt by such person of:
(i) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(ii) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000.
(2) A filing described in paragraph (b)(1) of this section shall not
be required if such person previously filed a certification, and a
disclosure form required under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraph (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action;
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
[[Page 137]]
(d)(1) The requirements of paragraph (d)(2) of this section apply to
any person who requests or receives from a person referred to in
paragraph (a) or (b) of this section:
(i) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(ii) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(iii) A contract or subcontract exceeding $100,000 at any tier under
a Federal loan exceeding $150,000; or
(iv) A contract or subcontract exceeding $100,000 at any tier under
a Federal cooperative agreement.
(2) A person described in paragraph (d)(1) of this section shall
file a certification, and a disclosure form, if required, to the next
tier.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraph
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e)
of this section shall be treated as a material representation of fact
upon which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 31 U.S.C.
1352.
(g) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C of this part.
Subpart B_Activities by Own Employees
Sec. 9.11 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in Sec.
9.1(a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement if
the payment is for agency and legislative liaison activities not
directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an
unsolicited proposal prior to its official submission; and
(3) Capability presentations by persons seeking awards from an
agency pursuant to the provisions of the Small Business Act, as amended.
(e) Only those activities expressly authorized by this section are
allowable under this section.
Sec. 9.15 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
9.1(a), does not apply in the case of a payment of reasonable
compensation made to an officer or employee of a person requesting or
receiving a Federal contract, grant, loan, or cooperative agreement or
an extension, continuation, renewal,
[[Page 138]]
amendment, or modification of a Federal contract, grant, loan, or
cooperative agreement if payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) For purposes of paragraph (a) of this section, professional and
technical services shall be limited to advice and analysis directly
applying any professional or technical discipline. For example, drafting
of a legal document accompanying a bid or proposal by a lawyer is
allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a professional (such
as a licensed lawyer) or a technical person (such as a licensed
accountant) are not allowable under this section unless they provide
advice and analysis directly applying their professional or technical
expertise and unless the advice or analysis is rendered directly and
solely in the preparation, submission or negotiation of a covered
Federal action. Thus, for example, communications with the intent to
influence made by a lawyer that do not provide legal advice or analysis
directly and solely related to the legal aspects of his or her client's
proposal, but generally advocate one proposal over another are not
allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
Sec. 9.20 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
Subpart C_Activities by Other than Own Employees
Sec. 9.23 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in Sec.
9.1(a), does not apply in the case of any reasonable payment to a
person, other than an officer or employee of a person requesting or
receiving a covered Federal action, if the payment is for professional
or technical services rendered directly in the preparation, submission,
or negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in Sec. 9.3(a) and (b) regarding
filing a disclosure form by each person, if required, shall not apply
with respect to professional or technical services rendered directly in
the preparation, submission, or negotiation of any commitment providing
for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, professional and
technical services shall be limited to advice and analysis directly
applying any professional or technical discipline. For example, drafting
of a legal document accompanying a bid or proposal by a lawyer is
allowable. Similarly, technical advice provided by an engineer on the
performance or operational capability of a piece of equipment rendered
directly in the negotiation of a contract is allowable. However,
communications with the intent to influence made by a
[[Page 139]]
professional (such as a licensed lawyer) or a technical person (such as
a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal action include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
Subpart D_Penalties and Enforcement
Sec. 9.31 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
appendix B to this part) to be filed or amended if required herein,
shall be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section
shall be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
Sec. 9.32 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803
(except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar
as these provisions are not inconsistent with the requirements in this
part.
Sec. 9.33 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
[[Page 140]]
Subpart E_Exemptions
Sec. 9.41 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
Subpart F_Agency Reports
Sec. 9.51 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see appendix B to this part) and, on May 31 and November 30 of
each year, submit to the Secretary of the Senate and the Clerk of the
House of Representatives a report containing a compilation of the
information contained in the disclosure reports received during the six-
month period ending on March 31 or September 30, respectively, of that
year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or
any successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
Sec. 9.52 Inspector General report.
(a) The Inspector General, or other official as specified in
paragraph (b) of this section, of each agency shall prepare and submit
to Congress each year an evaluation of the compliance of that agency
with, and the effectiveness of, the requirements in this part. The
evaluation may include any recommended changes that may be necessary to
strengthen or improve the requirements.
(b) In the case of an agency that does not have an Inspector
General, the agency official comparable to an Inspector General shall
prepare and submit the annual report, or, if there is no such comparable
official, the head of the agency shall prepare and submit the annual
report.
(c) The annual report shall be submitted at the same time the agency
submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged
violations relating to the agency's covered Federal actions during the
year covered by the report, the actions taken by the head of the agency
in the year covered by the report with respect to those alleged
violations and alleged violations in previous years, and the amounts of
civil penalties imposed by the agency in the year covered by the report.
Sec. Appendix A to Part 9--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative Agreements
I. The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer
[[Page 141]]
or employee of an agency, a Member of Congress, an officer or employee
of Congress, or an employee of a Member of Congress in connection with
the awarding of any Federal contract, the making of any Federal grant,
the making of any Federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or
modification of any Federal contract, grant, loan, or cooperative
agreement.
(2) If any funds other than Federal appropriated funds have been
paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress
in connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form--LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all sub awards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 31 U.S.C. 1352. Any
person who fails to file the required certification shall be subject to
a civil penalty of not less than $10,000 and not more than $100,000 for
each such failure.
II. Statement for Loan Guarantees and Loan Insurance:
The undersigned states, to the best of his or her knowledge and belief,
that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ``Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering
into this transaction imposed by 31 U.S.C. 1352. Any person who fails to
file the required statement shall be subject to a civil penalty of not
less than $10,000 and not more than $100,000 for each such failure.
[[Page 142]]
Sec. Appendix B to Part 9--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TR06MR03.021
[[Page 143]]
[GRAPHIC] [TIFF OMITTED] TR06MR03.022
[[Page 144]]
[GRAPHIC] [TIFF OMITTED] TR06MR03.023
PART 11_CLAIMS--Table of Contents
Subpart A_Debt Collection
Sec.
11.1 General application.
11.2 Definitions.
11.3 Demand for payment.
11.4 Collection by administrative offset.
11.5 Administrative wage garnishment.
11.6 Reporting debts.
11.7 Private collection agencies.
11.8 Suspension or revocation of eligibility for loans and loan
guarantees, licenses, permits, or privileges.
11.9 Collection in installments.
11.10 Interest, penalty charges, and administrative costs.
11.11 Compromise.
11.12 Suspending or terminating collection activity.
11.13 Referrals to the Department of Justice.
11.14 Receipt of offset requests by other Federal agencies.
11.15 Applying the debt against DHS payments.
Subpart B [Reserved]
Authority: 5 U.S.C. 301, 5514; 26 U.S.C. 6402, 31 U.S.C. 3701, 3711,
3716, 3717, 3718, 3720A,
[[Page 145]]
3720B, 3720D; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).
Source: 72 FR 4190, Jan. 30, 2007, unless otherwise noted.
Subpart A_Debt Collection
Sec. 11.1 General application.
(a) Application of Debt Collection Standards. The provisions of 31
CFR parts 285, 900-904, as amended by the Secretary of the Treasury and
the Attorney General, are applicable to debts and debt procedures within
the jurisdiction of the Department of Homeland Security.
(b) Authority. The Chief Financial Officer of the Department of
Homeland Security is delegated authority to administer this subpart and
to redelegate authority under this subpart.
(c) Application to DHS. This subpart provides procedures for the
collection of DHS debts, and for collection of other debts owed to the
United States when a request for offset of a DHS payment is received by
the DHS from another federal agency. This subpart applies to all of DHS,
including all of its components. It applies to the DHS when collecting a
DHS debt, to persons who owe DHS debts, and to Federal agencies
requesting offset of a payment issued by the DHS as a payment agency
(including salary payments to DHS employees).
(d) Exclusions. This subpart does not apply to debt arising from
taxation under the Internal Revenue Act of 1986, as amended, or to any
debt excepted from the FCCS, 31 CFR parts 900 through 904.
(e) Non-exclusive procedure or remedy. Nothing in this subpart
precludes collection or disposition of any debt under statutes and
regulations other than those described in this subpart. To the extent
that the provisions of laws or other regulations apply, including the
remission or mitigation of fines, penalties, forfeitures and debts
arising under the tariff laws of the United States, DHS components are
authorized to collect debts under those laws and regulations. DHS
components and other Federal agencies may simultaneously use multiple
collection remedies to collect a debt, except as prohibited by law.
(f) Additional policies and procedures. DHS components may, but are
not required to, promulgate additional policies and procedures
consistent with this subpart and other applicable Federal law, policies,
and procedures.
(g) Duplication not required. Nothing in this subpart requires DHS
to duplicate notices or administrative proceedings required by contract,
this subpart, or other laws or regulations.
(h) No private rights created. This subpart does not create any
right or benefit, substantive or procedural, enforceable at law or in
equity by a party against the United States, its agencies, its officers,
or any other person, nor shall the failure of any DHS component to
comply with any of the provisions of this subpart or 31 CFR parts 285,
900-904 be a defense to the collection of any debt or enforcement of any
other law.
Sec. 11.2 Definitions.
In addition to the definitions provided in 31 CFR parts 285, 900-
904, as used in this subpart:
(a) Department of Homeland Security or DHS means the United States
Department of Homeland Security and includes the Secretary and any DHS
entity which reports directly or indirectly to the Secretary.
(b) DHS debt means a debt owed to DHS by a person.
(c) Secretary means the Secretary of Homeland Security.
Sec. 11.3 Demand for payment.
(a) Notice requirements. Generally, before DHS starts the collection
actions described in this subpart, DHS sends a written notice to the
debtor under 31 CFR 901.2. The notice provided under this section
includes notice of any and all actions DHS may take to offset the debt,
including any notices required under 31 CFR parts 285, 900-904.
(b) Exceptions to notice requirements. DHS may omit from any notice
to a debtor any provision that is not legally required given the
collection remedies to be applied to a particular debt.
Sec. 11.4 Collection by administrative offset.
(a) General Provisions for Offset. DHS will collect debts by
administrative offset pursuant to 31 CFR parts 900-904.
[[Page 146]]
(b) Centralized Offset through the Treasury Offset Program. DHS
adopts the provisions of 31 CFR 901.3.
(c) Non-centralized Offset for DHS Debts. When centralized offset is
not available or appropriate, DHS may collect delinquent DHS debts
through non-centralized offset. In these cases, DHS may offset a payment
internally or make a request directly to a Federal payment agency to
offset a payment owed to the debtor. Before requesting a payment
authorizing agency to conduct a non-centralized administrative offset,
DHS will provide the debtor with the due process set forth in 31 CFR
901.3(b)(4) and the notice requirements of 31 CFR 901.2 (unless the due
process and notice requirements are not required under that part). DHS
will provide the payment authorizing agency written certification that
the debtor owes the past due, legally enforceable delinquent debt in the
amount stated, and that DHS has fully complied with its regulations
concerning administrative offset.
(d) Hearing Procedures for Federal Employees--(1) Request for a
hearing. A Federal employee who has received a notice that his or her
DHS debt will be collected by means of salary offset may request a
hearing concerning the existence or amount of the debt. The Federal
employee also may request a hearing concerning the amount proposed to be
deducted from the employee's pay each pay period. The employee must send
any request for hearing, in writing, to the office designated in the
notice described in section 11.4(c). The request must be received by the
designated office on or before the 15th calendar day following the
employee's receipt of the notice. The employee must sign the request and
specify whether an oral or paper hearing is requested. If an oral
hearing is requested, the employee must explain why the matter cannot be
resolved by review of the documentary evidence alone. All travel
expenses incurred by the Federal employee in connection with an in-
person hearing will be borne by the employee.
(2) Failure to submit timely request for hearing. If the employee
fails to submit a request for hearing within the time period described
in paragraph (d)(1) of this section, the employee will have waived the
right to a hearing, and salary offset may be initiated. However, DHS
should accept a late request for hearing if the employee can show that
the late request was the result of circumstances beyond the employee's
control or because of a failure to receive actual notice of the filing
deadline.
(3) Hearing official. DHS must obtain the services of a hearing
official who is not under the supervision or control of the Secretary.
The DHS Chief Financial Officer will coordinate DHS efforts to obtain
the services of a hearing official.
(4) Notice of hearing. After the employee requests a hearing, the
designated hearing official informs the employee of the form of the
hearing to be provided. For oral hearings, the notice sets forth the
date, time and location of the hearing. For paper hearings, the notice
provides the employee the date by which he or she should submit written
arguments to the designated hearing official. The hearing official gives
the employee reasonable time to submit documentation in support of the
employee's position. The hearing official schedules a new hearing date
if requested by both parties. The hearing official gives both parties
reasonable notice of the time and place of a rescheduled hearing.
(5) Oral hearing. The hearing official conducts an oral hearing if
he or she determines the matter cannot be resolved by review of
documentary evidence alone (for example, when an issue of credibility or
veracity is involved). The hearing need not take the form of an
evidentiary hearing, but may be conducted in a manner determined by the
hearing official, including but not limited to:
(i) Informal conferences with the hearing official, in which the
employee and agency representative will be given full opportunity to
present evidence, witnesses and argument;
(ii) Informal meetings with an interview of the employee by the
hearing official; or
(iii) Formal written submissions, with an opportunity for oral
presentation.
(6) Paper hearing. If the hearing official determines an oral
hearing is not
[[Page 147]]
necessary, he or she makes the determination based upon a review of the
available written record, including any documentation submitted by the
employee in support of his or her position.
(7) Failure to appear or submit documentary evidence. In the absence
of good cause shown (for example, excused illness), if the employee
fails to appear at an oral hearing or fails to submit documentary
evidence as required for a paper hearing, the employee waives the right
to a hearing, and salary offset may be initiated. Further, the employee
is deemed to admit the existence and amount of the debt as described in
the notice of intent to offset. If a DHS representative does not appear
at an oral hearing, the hearing official shall proceed with the hearing
as scheduled, and make his or her determination based upon the oral
testimony presented and the documentary evidence submitted by both
parties.
(8) Burden of proof. DHS has the initial burden to prove the
existence and amount of the debt. Thereafter, if the employee disputes
the existence or amount of the debt, the employee must prove by a
preponderance of the evidence that no debt exists or that the amount of
the debt is incorrect. In addition, the employee may present evidence
that the proposed terms of the repayment schedule are unlawful, would
cause a financial hardship to the employee, or that collection of the
debt may not be pursued due to operation of law.
(9) Record. The hearing official maintains a summary record of any
hearing provided by this subpart. Witnesses testify under oath or
affirmation in oral hearings.
(10) Date of decision. The hearing official issues a written opinion
stating his or her decision, based upon documentary evidence and
information developed at the hearing, as soon as practicable after the
hearing but not later than 60 days after the date on which the request
for hearing was received by DHS. If the employee requests a delay in the
proceedings, the deadline for the decision may be postponed by the
number of days by which the hearing was postponed. When a decision is
not timely rendered, DHS waives penalties applied to the debt for the
period beginning with the date the decision is due and ending on the
date the decision is issued.
(11) Content of decision. The written decision includes:
(i) A statement of the facts presented to support the origin,
nature, and amount of the debt;
(ii) The hearing official's findings, analysis, and conclusions; and
(iii) The terms of any repayment schedules, if applicable.
(12) Final agency action. The hearing official's decision is final.
(f) Waiver not precluded. Nothing in this subpart precludes an
employee from requesting waiver of an overpayment under 5 U.S.C. 5584 or
8346(b), 10 U.S.C. 2774, 32 U.S.C. 716, or other statutory authority.
(g) Salary offset process--(1) Determination of disposable pay. The
Chief Financial Officer consults with the appropriate DHS payroll office
to determine the amount of a DHS employee's disposable pay and will
implement salary offset when requested to do so by a DHS component or
another federal agency. If the debtor is not employed by DHS, the agency
employing the debtor will determine the amount of the employee's
disposable pay and implement salary offset upon request.
(2) Amount of salary offset. The amount to be offset from each
salary payment will be up to 15 percent of a debtor's disposable pay, as
follows:
(i) If the amount of the debt is equal to or less than 15 percent of
the disposable pay, such debt generally is collected in one lump sum
payment; or
(ii) Installment deductions are made over a period of no greater
than the anticipated period of employment. An installment deduction will
not exceed 15 percent of the disposable pay from which the deduction is
made unless the employee has agreed in writing to the deduction of a
greater amount or the creditor agency has determined that smaller
deductions are appropriate based on the employee's ability to pay.
(3) Final salary payment. After the employee has separated either
voluntarily or involuntarily from the payment agency, the payment agency
may make a lump sum deduction exceeding 15 percent of disposable pay
from any
[[Page 148]]
final salary or other payments pursuant to 31 U.S.C. 3716 in order to
satisfy a debt.
(h) Payment agency's responsibilities. (1) As required by 5 CFR
550.1109, if the employee separates from the payment agency from which
DHS requested salary offset, the payment agency must certify the total
amount of its collection and notify DHS and the employee of the amounts
collected. If the payment agency is aware that the employee is entitled
to payments from the Civil Service Retirement Fund and Disability Fund,
the Federal Employee Retirement System, or other similar payments, it
must provide written notification to the agency responsible for making
such retirement payments that the debtor owes a debt, the amount of the
debt, and that DHS has complied with the provisions of this section. DHS
must submit a properly certified claim to the new payment agency before
the collection can be made.
(2) If the employee is already separated from employment and all
payments due from his or her former payment agency have been made, DHS
may request that money due and payable to the employee from the Civil
Service Retirement Fund and Disability Fund, the Federal Employee
Retirement System, or other similar funds, is administratively offset to
collect the debt. Generally, DHS will collect such monies through the
Treasury Offset Program as described in this section.
(3) When an employee transfers to another agency, DHS should resume
collection with the employee's new payment agency in order to continue
salary offset.
Sec. 11.5 Administrative wage garnishment.
DHS may collect debts from a debtor's wages by means of
administrative wage garnishment in accordance with the requirements of
31 U.S.C. 3720D under the procedures established in 31 CFR 285.11.
Sec. 11.6 Reporting debts.
DHS will report delinquent debts to credit bureaus and other
automated databases in accordance with 31 U.S.C. 3711(e), 31 CFR 901.4,
and the Office of Management and Budget Circular A-129, ``Policies for
Federal Credit Programs and Non-tax Receivables,'' which may be found at
http://www.fms.treas.gov/debt. At least sixty (60) days prior to
reporting a delinquent debt to a consumer reporting agency, DHS sends a
notice to the debtor in accordance with 6 CFR 11.3. DHS may authorize
the Treasury Department's Financial Management Service to report to
credit bureaus those delinquent debts that have been transferred to the
Financial Management Service for administrative offset.
Sec. 11.7 Private collection agencies.
DHS will transfer delinquent DHS debts to the Treasury Department's
Financial Management Service to obtain debt collection services provided
by private collection agencies.
Sec. 11.8 Suspension or revocation of eligibility for loans and loan
guarantees, licenses, permits, or privileges.
The authority to extend financial assistance in the form of a loan,
loan guarantee, or loan insurance to any person delinquent on a nontax
debt owed to DHS is delegated to the Chief Financial Officer.
Sec. 11.9 Collection in installments.
DHS may accept payment of a DHS debt in regular installments, in
accordance with the provisions of 31 CFR 901.8 and policies and
procedures adopted by the Chief Financial Officer (CFO). The CFO will
consult the Office of General Counsel regarding a legally enforceable
written agreement from the debtor.
Sec. 11.10 Interest, penalty charges, and administrative costs.
(a) Assessment and notice. DHS shall assess interest, penalties and
administrative costs on DHS debts in accordance with 31 U.S.C. 3717 and
31 CFR 901.9. Administrative costs of processing and handling a
delinquent debt shall be determined by DHS.
(b) Waiver of interest, penalties, and administrative costs. DHS may
waive interest, penalties, and administrative costs, or any portion
thereof, under the criteria in the FCCS, or when it determines the
collection of these charges
[[Page 149]]
would be against equity and good conscience or not in the best interests
of the United States. The authority to waive interest, penalties and
administrative costs is delegated to the Chief Financial Officer. The
DHS Chief Financial Officer shall issue written guidance on maintaining
records of waivers.
(c) Accrual during suspension of debt collection. Interest and
related charges will not accrue during the period a hearing official
does not render a timely decision.
Sec. 11.11 Compromise.
DHS may compromise a debt in accordance with the provisions of 31
CFR part 902. The Chief Financial Officer is authorized to compromise
debts owed to DHS. No debt over $10,000 may be compromised without the
concurrence of the Office of the General Counsel.
Sec. 11.12 Suspending or terminating collection activity.
DHS will suspend or terminate collection activity, or discharge
indebtedness, in accordance with 31 CFR part 903. The Chief Financial
Officer is delegated authority to suspend or terminate collection
activity, or to discharge indebtedness regarding debts owed to DHS, but
for any such action involving a debt over $10,000, the Chief Financial
Officer must obtain the concurrence of the Office of the General
Counsel. The Chief Financial Officer is authorized to act on behalf of
the Secretary in selling a debt, and in determining whether or not it is
in the best interests of the United States to do so.
Sec. 11.13 Referrals to the Department of Justice.
Referrals of debts to the Department of Justice for collection will
be by the General Counsel.
Sec. 11.14 Receipt of offset requests by other Federal agencies.
Other Federal agencies send non-centralized offset requests to DHS
at: U.S. Department of Homeland Security, Attn: Chief Financial Officer,
Mail Stop 0200, Washington, DC 20528-0200. Those agencies must comply
with 31 CFR 901.3 when forwarding the requests to DHS. DHS does not
review the merits of the creditor agency's determination with regard to
the existence or the amount of the debt. When two or more agencies are
seeking offsets from payments made to the same person, or when two or
more debts are owed to a single creditor agency, DHS may determine the
order in which the debts will be collected or whether one or more debts
should be collected by offset simultaneously. For the purposes of this
section, debts owed to DHS generally take precedence over debts owed to
other agencies, but DHS may pay a debt to another agency prior to
collecting for DHS. DHS determines the order of debt collection based
upon the best interests of the United States.
Sec. 11.15 Applying the debt against DHS payments.
(a) Notice to the Debtor. DHS sends a written notice to the debtor
indicating a certified debt claim was received from the creditor agency,
the amount of the debt claimed to be owed by the creditor agency, the
estimated date the offset will begin (if more than one payment), and the
amount of the deduction(s). For employees, DHS generally begins
deductions from pay at the next officially established pay interval.
Deductions continue until DHS knows the debt is paid in full or until
otherwise instructed by the creditor agency. Alternatively, the amount
offset may be an amount agreed upon, in writing, by the debtor and the
creditor agency. If a DHS employee retires or resigns, or if his or her
employment ends before collection of the debt is complete, DHS continues
to offset, under 31 U.S.C. 3716, up to 100% of an employee's subsequent
payments until the debt is paid or otherwise resolved. Such payments
include a debtor's final salary payment, lump-sum leave payment, and
other payments payable to the debtor by DHS. See 31 U.S.C. 3716 and 5
CFR 550.1104(l) and 550.1104(m). If the employee is separated from DHS
before the debt is paid in full, DHS will certify to the creditor agency
the total amount of its collection. If DHS is aware the employee is
entitled to payments from the Civil Service Retirement and Disability
Fund, Federal Employee Retirement System, or other
[[Page 150]]
similar payments, DHS provides written notice to the agency making such
retirement payments that the debtor owes a debt (including the amount)
and that the provisions of 5 CFR 550.1109 have been fully complied with.
The creditor agency is responsible for submitting a certified claim to
the agency responsible for making such payments before collection may
begin. Generally, creditor agencies will collect such monies through the
Treasury Offset Program as described in section 11.4.
(b) Notice to the debtor. DHS provides to the debtor a copy of any
notices sent to the creditor agency under this subpart.
(c) Transfer of employee debtor to another Federal agency. If an
employee debtor transfers to another Federal agency before the debt is
paid in full, DHS notifies the creditor agency and provides it a
certification of the total amount of its collection on the debt. The
creditor agency is responsible for submitting a certified claim to the
debtor's new employing agency before collection may begin.
Subpart B [Reserved]
PART 13_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents
Sec.
13.1 Basis, purpose, scope and effect.
13.2 Definitions.
13.3 Basis for civil penalties and assessments.
13.4 Investigation.
13.5 Review by the Reviewing Official.
13.6 Prerequisites for issuing a Complaint.
13.7 Complaint.
13.8 Service of Complaint.
13.9 Answer.
13.10 Default upon failure to answer.
13.11 Referral of Complaint and answer to the ALJ.
13.12 Notice of hearing.
13.13 Parties to the hearing.
13.14 Separation of functions.
13.15 Ex parte contacts.
13.16 Disqualification of Reviewing Official or ALJ.
13.17 Rights of parties.
13.18 Authority of the ALJ.
13.19 Prehearing conferences.
13.20 Disclosure of Documents.
13.21 Discovery.
13.22 Exchange of witness lists, Statements, and exhibits.
13.23 Subpoenas for attendance at hearing.
13.24 Protective order.
13.25 Fees.
13.26 Filing, form and service of papers.
13.27 Computation of time.
13.28 Motions.
13.29 Sanctions.
13.30 The hearing and burden of proof.
13.31 Determining the amount of penalties and assessments.
13.32 Location of hearing.
13.33 Witnesses.
13.34 Evidence.
13.35 The record.
13.36 Post-hearing briefs.
13.37 Initial Decision.
13.38 Reconsideration of Initial Decision.
13.39 Appeal to Authority Head.
13.40 Stays ordered by the Department of Justice.
13.41 Stay pending appeal.
13.42 Judicial review.
13.43 Collection of civil penalties and assessments.
13.44 Right to administrative offset.
13.45 Deposit in Treasury of United States.
13.46 Compromise or settlement.
13.47 Limitations.
Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C., Ch. 1,
sections 101 et seq.); 5 U.S.C. 301; 31 U.S.C. 3801-3812.
Source: 70 FR 59211, Oct. 12, 2005, unless otherwise noted.
Sec. 13.1 Basis, purpose, scope and effect.
(a) Basis. This part implements the Program Fraud Civil Remedies Act
of 1986, 31 U.S.C. 3801-3812. section 3809 of title 31, United States
Code, requires each authority to promulgate regulations necessary to
implement the provisions of the statute.
(b) Purpose. This part:
(1) Establishes administrative procedures for imposing civil
penalties and assessments against Persons who Make, submit, or present,
or cause to be Made, submitted, or presented, false, fictitious, or
fraudulent Claims or written Statements to the Authority or to certain
others; and
(2) Specifies the hearing and appeal rights of Persons subject to
allegations of liability for such penalties and assessments.
(c) Scope. This part applies to all components of the Department of
Homeland Security.
(d) Effect. (1) This part applies to program fraud cases initiated
by any component of the Department of Homeland Security on or after
October 12, 2005.
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(2) Program fraud cases initiated by any component of the Department
of Homeland Security before October 12, 2005, but not completed before
October 12, 2005, will continue to completion under the rules and
procedures in effect before this part.
Sec. 13.2 Definitions.
The following definitions have general applicability throughout this
part:
(a) ALJ means an Administrative Law Judge in the Authority appointed
pursuant to 5 U.S.C. 3105 or detailed to the Authority pursuant to 5
U.S.C. 3344. An ALJ will preside at any hearing convened under the
regulations in this part.
(b) Authority means the Department of Homeland Security.
(c) Authority Head means the Deputy Secretary, Department of
Homeland Security, or another officer designated by the Deputy
Secretary.
(d) Benefit means, in the context of a Statement, anything of value,
including but not limited to any advantage, preference, privilege,
license, permit, favorable decision, ruling, status, or loan guarantee.
(e) Claim means any request, demand, or submission:
(1) Made to the Authority for property, services, or money
(including money representing grants, loans, insurance, or Benefits);
(2) Made to a recipient of property, services, or money from the
Authority or to a party to a contract with the Authority:
(i) For property or services if the United States:
(A) Provided such property or services;
(B) Provided any portion of the funds for the purchase of such
property or services; or
(C) Will reimburse such recipient or party for the purchase of such
property or services; or
(ii) For the payment of money (including money representing grants,
loans, insurance, or Benefits) if the United States:
(A) Provided any portion of the money requested or demanded; or
(B) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(3) Made to the Authority which has the effect of decreasing an
obligation to pay or account for property, services, or money.
(f) Complaint means the administrative Complaint served by the
Reviewing Official on the Defendant under Sec. 13.7.
(g) Defendant means any Person alleged in a Complaint under Sec.
13.7 to be liable for a civil penalty or assessment under Sec. 13.3.
(h) Government means the Government of the United States.
(i) Individual means a natural Person.
(j) Initial Decision means the written decision of the ALJ required
by Sec. 13.10 or Sec. 13.37, and includes a revised Initial Decision
issued following a remand or a motion for reconsideration.
(k) Investigating Official means the Inspector General of the
Department of Homeland Security or an officer or employee of the Office
of the Inspector General designated by the Inspector General and
eligible under 31 U.S.C. 3801(a)(4)(B).
(l) Knows or Has Reason to Know, means that a Person, with respect
to a Claim or Statement:
(1) Has actual knowledge that the Claim or Statement is false,
fictitious, or fraudulent;
(2) Acts in deliberate ignorance of the truth or falsity of the
Claim or Statement; or
(3) Acts in reckless disregard of the truth or falsity of the Claim
or Statement.
(m) Makes includes presents, submits, and causes to be made,
presented, or submitted. As the context requires, Making or Made will
likewise include the corresponding forms of such terms.
(n) Person means any Individual, partnership, corporation,
association, or private organization, and includes the plural of that
term.
(o) Representative means an attorney who is a member in good
standing of the bar of any State, Territory, or possession of the United
States, the District of Columbia, or the Commonwealth of Puerto Rico.
This definition is not intended to foreclose pro se appearances. That
is, an Individual may appear for himself or herself, and a corporation
or other entity may appear by
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an owner, officer, or employee of the corporation or entity.
(p) Reviewing Official means the General Counsel of the Department
of Homeland Security, or other officer or employee of the Department who
is designated by the General Counsel and eligible under 31 U.S.C.
3801(a)(8).
(q) Statement means any representation, certification, affirmation,
Document, record, or accounting or bookkeeping entry Made:
(1) With respect to a Claim or to obtain the approval or payment of
a Claim (including relating to eligibility to Make a Claim); or
(2) With respect to (including relating to eligibility for):
(i) A contract with, or bid or proposal for a contract with the
Authority, or any State, political subdivision of a State, or other
party, if the United States Government provides any portion of the money
or property under such contract or for such grant, loan, or Benefit, or
if the Government will reimburse such State, political subdivision, or
party for any portion of the money or property under such contract or
for such grant, loan, or Benefit; or
(ii) A grant, loan, or Benefit from, the Authority, or any State,
political subdivision of a State, or other party, if the United States
Government provides any portion of the money or property under such
contract or for such grant, loan, or Benefit, or if the Government will
reimburse such State, political subdivision, or party for any portion of
the money or property under such contract or for such grant, loan, or
Benefit.
Sec. 13.3 Basis for civil penalties and assessments.
(a) Claims. (1) Except as provided in paragraph (c) of this section,
a Person will be subject, in addition to any other remedy that may be
prescribed by law, to a civil penalty of not more than $5,500 for each
Claim (as adjusted in accordance with the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Public Law 101-140), as amended by the
Debt Collection Improvement Act of 1996 (Public Law 104-134)) if such
Person Makes a Claim that such Person Knows or Has Reason to Know:
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any written Statement that asserts
a material fact that is false, fictitious, or fraudulent;
(iii) Includes or is supported by any written Statement that:
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent as a result of such
omission; and
(C) Is a Statement in which the Person Making such Statement has a
duty to include such material fact; or
(iv) Is for payment for the provision of property or services that
the Person has not provided as claimed.
(2) Each voucher, invoice, Claim form, or other Individual request
or demand for property, services, or money constitutes a separate Claim.
(3) A Claim will be considered Made to the Authority, recipient, or
party when such Claim is actually Made to an agent, fiscal intermediary,
or other entity, including any State or political subdivision thereof,
acting for or on behalf of the Authority, recipient, or party.
(4) Each Claim for property, services, or money is subject to a
civil penalty regardless of whether such property, services, or money is
actually delivered or paid.
(5) If the Government has Made any payment (including transferred
property or provided services) on a Claim, a Person subject to a civil
penalty under paragraph (a)(1) of this section will also be subject to
an assessment of not more than twice the amount of such Claim or that
portion thereof that is determined to be in violation of paragraph
(a)(1) of this section. Such assessment will be in lieu of damages
sustained by the Government because of such Claim.
(b) Statements. (1) Except as provided in paragraph (c) of this
section, a Person will be subject, in addition to any other remedy that
may be prescribed by law, to a civil penalty of not more than $5,500 (as
adjusted in accordance with the Federal Civil Penalties Inflation
Adjustment Act of 1990 (Public Law 101-140), as amended by the Debt
Collection Improvement Act of 1996 (Public Law 104-134)) if such Person
Makes a written Statement that:
(i) The Person Knows or Has Reason to Know:
[[Page 153]]
(A) Asserts a material fact that is false, fictitious, or
fraudulent; or
(B) Is false, fictitious, or fraudulent because it omits a material
fact that the Person Making the Statement has a duty to include in such
Statement; and
(ii) Contains, or is accompanied by, an express certification or
affirmation of the truthfulness and accuracy of the contents of the
Statement.
(2) Each written representation, certification, or affirmation
constitutes a separate Statement.
(3) A Statement will be considered Made to the Authority when such
Statement is actually Made to an agent, fiscal intermediary, or other
entity, including any State or political subdivision thereof, acting for
or on behalf of the Authority.
(c) Specific intent not required. No proof of specific intent to
defraud is required to establish liability under this section.
(d) More than one Person liable. (1) In any case in which it is
determined that more than one Person is liable for Making a Claim or
Statement under this section, each such Person may be held liable for a
civil penalty under this section.
(2) In any case in which it is determined that more than one Person
is liable for Making a Claim under this section on which the Government
has Made payment (including transferred property or provided services),
an assessment may be imposed against any such Person or jointly and
severally against any combination of such Persons.
Sec. 13.4 Investigation.
(a) If an Investigating Official concludes that a subpoena pursuant
to the Authority conferred by 31 U.S.C. 3804(a) is warranted:
(1) The subpoena so issued will notify the Person to whom it is
addressed of the Authority under which the subpoena is issued and will
identify the records or Documents sought;
(2) The Investigating Official may designate a Person to act on his
or her behalf to receive the Documents sought; and
(3) The Person receiving such subpoena will be required to tender to
the Investigating Official or the Person designated to receive the
Documents a certification that the Documents sought have been produced,
or that such Documents are not available and the reasons therefore, or
that such Documents, suitably identified, have been withheld based upon
the assertion of an identified privilege.
(b) If the Investigating Official concludes that an action under the
Act may be warranted, the Investigating Official will submit a report
containing the findings and conclusions of such investigation to the
Reviewing Official.
(c) Nothing in this section will preclude or limit an Investigating
Official's discretion to refer allegations directly to the Department of
Justice for suit under the False Claims Act or other civil relief, or to
defer or postpone a report or referral to the Reviewing Official to
avoid interference with a criminal investigation or prosecution.
(d) Nothing in this section modifies any responsibility of an
Investigating Official to report violations of criminal law to the
Attorney General.
Sec. 13.5 Review by the Reviewing Official.
(a) If, based on the report of the Investigating Official under
Sec. 13.4(b), the Reviewing Official determines that there is adequate
evidence to believe that a Person is liable under Sec. 13.3, the
Reviewing Official will transmit to the Attorney General a written
notice of the Reviewing Official's intention to issue a Complaint under
Sec. 13.7.
(b) Such notice will include:
(1) A Statement of the Reviewing Official's reasons for issuing a
Complaint;
(2) A Statement specifying the evidence that supports the
allegations of liability;
(3) A description of the Claims or Statements upon which the
allegations of liability are based;
(4) An estimate of the amount of money or the value of property,
services, or other Benefits requested or demanded in violation of Sec.
13.3;
(5) A Statement of any exculpatory or mitigating circumstances that
may relate to the Claims or Statements known by the Reviewing Official
or the Investigating Official; and
[[Page 154]]
(6) A Statement that there is a reasonable prospect of collecting an
appropriate amount of penalties and assessments.
Sec. 13.6 Prerequisites for issuing a Complaint.
(a) The Reviewing Official may issue a Complaint under Sec. 13.7
only if:
(1) The Department of Justice approves the issuance of a Complaint
in a written Statement described in 31 U.S.C. 3803(b)(1); and
(2) In the case of allegations of liability under Sec. 13.3(a) with
respect to a Claim, the Reviewing Official determines that, with respect
to such Claim or a group of related Claims submitted at the same time
such Claim is submitted (as defined in paragraph (b) of this section),
the amount of money or the value of property or services demanded or
requested in violation of Sec. 13.3(a) does not exceed $150,000.
(b) For the purposes of this section, a related group of Claims
submitted at the same time will include only those Claims arising from
the same transaction (e.g., grant, loan, application, or contract) that
are submitted simultaneously as part of a single request, demand, or
submission.
(c) Nothing in this section will be construed to limit the Reviewing
Official's authority to join in a single Complaint against a Person's
Claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money, or the value of property or services,
demanded or requested.
Sec. 13.7 Complaint.
(a) On or after the date the Department of Justice approves the
issuance of a Complaint in accordance with 31 U.S.C. 3803(b)(1), the
Reviewing Official may serve a Complaint on the Defendant, as provided
in Sec. 13.8.
(b) The Complaint will state:
(1) The allegations of liability against the Defendant, including
the statutory basis for liability, an identification of the Claims or
Statements that are the basis for the alleged liability, and the reasons
why liability allegedly arises from such Claims or Statements;
(2) The maximum amount of penalties and assessments for which the
Defendant may be held liable;
(3) Instructions for filing an answer to request a hearing,
including a specific Statement of the Defendant's right to request a
hearing by filing an answer and to be represented by a Representative;
and
(4) That failure to file an answer within 30 days of service of the
Complaint will result in the imposition of the maximum amount of
penalties and assessments without right to appeal, as provided in Sec.
13.10.
(5) That the Defendant may obtain copies of relevant material and
exculpatory information pursuant to the process outlined in Sec. 13.20.
(c) At the same time the Reviewing Official serves the Complaint, he
or she will serve the Defendant with a copy of the regulations in this
part.
Sec. 13.8 Service of Complaint.
(a) Service of a Complaint must be Made by certified or registered
mail or by delivery in any manner authorized by Rule 4(d) of the Federal
Rules of Civil Procedure. Service of a Complaint is complete upon
receipt.
(b) Proof of service, stating the name and address of the Person on
whom the Complaint was served, and the manner and date of service, may
be Made by:
(1) Affidavit of the Individual serving the Complaint by delivery;
(2) A United States Postal Service return receipt card acknowledging
receipt; or
(3) Written acknowledgment of receipt by the Defendant or his or her
Representative; or
(4) In case of service abroad, authentication in accordance with the
Convention on Service Abroad of Judicial and Extrajudicial Documents in
Commercial and Civil Matters.
Sec. 13.9 Answer.
(a) The Defendant may request a hearing by serving an answer on the
Reviewing Official within 30 days of service of the Complaint. Service
of an answer will be Made by delivering a copy to the Reviewing Official
or by placing a copy in the United States mail, postage prepaid and
addressed to the Reviewing Official. Service of an
[[Page 155]]
answer is complete upon such delivery or mailing. An answer will be
deemed to be a request for hearing.
(b) In the answer, the Defendant:
(1) Will admit or deny each of the allegations of liability Made in
the Complaint;
(2) Will state any defense on which the Defendant intends to rely;
(3) May state any reasons why the Defendant contends that the
penalties and assessments should be less than the statutory maximum; and
(4) Will state the name, address, and telephone number of the Person
authorized by the Defendant to act as Defendant's Representative, if
any.
(c) If the Defendant is unable to file an answer meeting the
requirements of paragraph (b) of this section within the time provided,
the Defendant may, before the expiration of 30 days from service of the
Complaint, serve on the Reviewing Official a general answer denying
liability and requesting a hearing, and a request for an extension of
time within which to serve an answer meeting the requirements of
paragraph (b) of this section. The Reviewing Official will file promptly
the Complaint, the general answer denying liability, and the request for
an extension of time as provided in Sec. 13.11. For good cause shown,
the ALJ may grant the Defendant up to 30 additional days from the
original due date within which to serve an answer meeting the
requirements of paragraph (b) of this section.
Sec. 13.10 Default upon failure to answer.
(a) If the Defendant does not answer within the time prescribed in
Sec. 13.9(a), the Reviewing Official may refer the Complaint to an ALJ
by filing the Complaint and a Statement that Defendant has failed to
answer on time.
(b) Upon the referral of the Complaint, the ALJ will promptly serve
on Defendant in the manner prescribed in Sec. 13.8, a notice that an
Initial Decision will be issued under this section.
(c) In addition, the ALJ will assume the facts alleged in the
Complaint to be true, and, if such facts establish liability under Sec.
13.3, the ALJ will issue an Initial Decision imposing the maximum amount
of penalties and assessments allowed under the statute.
(d) Except as otherwise provided in this section, by failing to
answer on time, the Defendant waives any right to further review of the
penalties and assessments imposed under paragraph (c) of this section,
and the Initial Decision will become final and binding upon the parties
30 days after it is issued.
(e) If, before such an Initial Decision becomes final, the Defendant
files a motion seeking to reopen on the grounds that extraordinary
circumstances prevented the Defendant from answering, the Initial
Decision will be stayed pending the ALJ's decision on the motion.
(f) If, on such motion, the Defendant can demonstrate extraordinary
circumstances excusing the failure to answer on time, the ALJ will
withdraw the Initial Decision in paragraph (c) of this section, if such
a decision has been issued, and will grant the Defendant an opportunity
to answer the Complaint.
(g) A decision of the ALJ denying a Defendant's motion under
paragraph (e) of this section is not subject to reconsideration under
Sec. 13.38.
(h) The Defendant may appeal to the Authority Head the decision
denying a motion to reopen by filing a notice of appeal in accordance
with Sec. 13.26 within 15 days after the ALJ denies the motion. The
timely filing of a notice of appeal will stay the Initial Decision until
the Authority Head decides the issue.
(i) If the Defendant files a timely notice of appeal with the
Authority Head, the ALJ will forward the record of the proceeding to the
Authority Head.
(j) The Authority Head will decide expeditiously whether
extraordinary circumstances excuse the Defendant's failure to answer on
time based solely on the record before the ALJ.
(k) If the Authority Head decides that extraordinary circumstances
excused the Defendant's failure to answer on time, the Authority Head
will remand the case to the ALJ with instructions to grant the Defendant
an opportunity to answer.
(l) If the Authority Head decides that the Defendant's failure to
answer on time is not excused, the Authority Head will reinstate the
Initial Decision of the ALJ, which will become final
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and binding upon the parties 30 days after the Authority Head issues
such decision.
Sec. 13.11 Referral of Complaint and answer to the ALJ.
Upon receipt of an answer, the Reviewing Official will refer the
matter to an ALJ by filing the Complaint and answer in accordance with
Sec. 13.26.
Sec. 13.12 Notice of hearing.
(a) When the ALJ receives the Complaint and answer, the ALJ will
promptly serve a notice of hearing upon the Defendant in the manner
prescribed by Sec. 13.8.
(b) Such notice will include:
(1) The tentative time and place, and the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the Representative of
the Government and of the Defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
Sec. 13.13 Parties to the hearing.
(a) The parties to the hearing will be the Defendant and the
Authority.
(b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the
False Claims Act may participate in these proceedings to the extent
authorized by the provisions of that Act.
Sec. 13.14 Separation of functions.
(a) The Investigating Official, the Reviewing Official, and any
employee or agent of the Authority who takes part in investigating,
preparing, or presenting a particular case may not, in such case or a
factually related case:
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the Initial Decision or the review of
the Initial Decision by the Authority Head, except as a witness or a
Representative in public proceedings; or
(3) Make the collection of penalties and assessments under 31 U.S.C.
3806.
(b) The ALJ will not be responsible to, or subject to the
supervision or direction of, the Investigating Official or the Reviewing
Official.
(c) Except as provided in paragraph (a) of this section, the
Representative for the Government may be employed anywhere in the
Authority, including in the offices of either the Investigating Official
or the Reviewing Official.
Sec. 13.15 Ex parte contacts.
No party or Person (except employees of the ALJ's office) will
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provision does not prohibit a Person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.
Sec. 13.16 Disqualification of Reviewing Official or ALJ.
(a) A Reviewing Official or ALJ in a particular case may disqualify
himself or herself at any time.
(b) A party may file a motion for disqualification of a Reviewing
Official or an ALJ. Such motion will be accompanied by an affidavit
alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit will be filed promptly upon the
party's discovery of reasons requiring disqualification, or such
objections will be deemed waived.
(d) Such affidavit will state specific facts that support the
party's belief that personal bias or other reason for disqualification
exists and the time and circumstances of the party's discovery of such
facts. It will be accompanied by a certificate of the Representative of
record that it is Made in good faith.
(e)(1) If the ALJ determines that a Reviewing Official is
disqualified, the ALJ will dismiss the Complaint without prejudice.
(2) If the ALJ disqualifies himself or herself, the case will be
reassigned promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the Authority Head may
determine the matter only as part of his or
[[Page 157]]
her review of the Initial Decision upon appeal, if any.
Sec. 13.17 Rights of parties.
Except as otherwise limited by this part, all parties may:
(a) Be accompanied, represented, and advised by a Representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery;
(d) Agree to stipulations of fact or law, which will be Made part of
the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oral arguments at the hearing as permitted by the ALJ;
and
(h) Submit written briefs and proposed findings of fact and
conclusions of law after the hearing.
Sec. 13.18 Authority of the ALJ.
(a) The ALJ will conduct a fair and impartial hearing, avoid delay,
maintain order, and assure that a record of the proceeding is Made.
(b) The ALJ has the authority to:
(1) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas requiring the attendance of witnesses and the
production of Documents at depositions or at hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of
Representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by
summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in
Person or by telephone; and
(14) Exercise such other authority as is necessary to carry out the
responsibilities of the ALJ under this part.
(c) The ALJ does not have the authority to Make any determinations
regarding the validity of treaties or other international agreements,
Federal statutes or regulations, or Departmental Orders or Directives.
Sec. 13.19 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ will schedule at least one
prehearing conference at a reasonable time in advance of the hearing.
(c) The ALJ may use prehearing conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings,
including the need for a more definite Statement;
(3) Stipulations and admissions of fact or as to the contents and
authenticity of Documents;
(4) Whether the parties can agree to submission of the case on a
stipulated record;
(5) Whether a party chooses to waive appearance at an oral hearing
and to submit only documentary evidence (subject to the objection of
other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon by
the parties or ordered by the ALJ at a prehearing conference.
[[Page 158]]
Sec. 13.20 Disclosure of Documents.
(a) Upon written request to the Reviewing Official, the Defendant
may review, at a time and place convenient to the Authority, any
relevant and material Documents, transcripts, records, and other
materials that relate to the allegations set out in the Complaint and
upon which the findings and conclusions of the Investigating Official
under Sec. 13.4(b) are based, unless such Documents are subject to a
privilege under Federal law. Special arrangements as to confidentiality
may be required by the Reviewing Official, who may also assert privilege
or other related doctrines. Upon payment of fees for duplication, the
Defendant may obtain copies of such Documents.
(b) Upon written request to the Reviewing Official, the Defendant
also may obtain a copy of all exculpatory information in the possession
of the Reviewing Official or Investigating Official relating to the
allegations in the Complaint, even if it is contained in a Document that
would otherwise be privileged. If the Document would otherwise be
privileged, only that portion containing exculpatory information must be
disclosed.
(c) The notice sent to the Attorney General from the Reviewing
Official as described in Sec. 13.5 is not discoverable under any
circumstances.
(d) The Defendant may file a motion to compel disclosure of the
Documents subject to the provisions of this section. Such a motion may
only be filed following the serving of an answer pursuant to Sec. 13.9.
Sec. 13.21 Discovery.
(a) In general. (1) The following types of discovery are authorized:
(i) Requests for production of Documents for inspection and copying;
(ii) Requests for admissions of the authenticity of any relevant
Document or of the truth of any relevant fact;
(iii) Written interrogatories; and
(iv) Depositions.
(2) Unless mutually agreed to by the parties, discovery is available
only as ordered by the ALJ. The ALJ will regulate the timing of
discovery.
(b) Documents defined. (1) For the purpose of this section and
Sec. Sec. 13.22 and 13.23, the term Documents includes information,
documents, reports, answers, records, accounts, papers, and other data
and documentary evidence.
(2) Nothing in this part will be interpreted to require the creation
of a Document.
(c) Motions for discovery. (1) A party seeking discovery may file a
motion. Such a motion will be accompanied by a copy of the request for
production of Documents, request for admissions, or interrogatories or,
in the case of depositions, a summary of the scope of the proposed
deposition.
(2) Within ten days of service, a party may file an opposition to
the motion or a motion for protective order as provided in Sec. 13.24.
(3) The ALJ may grant a motion for discovery only if he or she finds
that the discovery sought:
(i) Is necessary for the expeditious, fair, and reasonable
consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) The burden of showing that discovery should be allowed is on the
party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under
Sec. 13.24.
(d) Depositions. (1) If a motion for deposition is granted, the ALJ
will issue a subpoena for the deponent, which may require the deponent
to produce Documents. The subpoena will specify the time and place at
which the deposition will be held. Deposition requests for senior level
DHS officials (including career and non-career senior executive level
employees) shall not be approved absent showing of compelling need that
cannot be met by any other means.
(2) The party seeking to depose will serve the subpoena in the
manner prescribed in Sec. 13.8.
(3) The deponent may file a motion to quash the subpoena or a motion
for a protective order within ten days of service. If the ALJ has not
acted on such a motion by the return date, such date will be suspended
pending the ALJ's final action on the motion.
(4) The party seeking to depose will provide for the taking of a
verbatim
[[Page 159]]
transcript of the deposition, which it will Make available to all other
parties for inspection and copying.
(e) Each party will bear its own costs of discovery.
Sec. 13.22 Exchange of witness lists, Statements, and exhibits.
(a) At least 15 days before the hearing or at such other time as may
be ordered by the ALJ, the parties will exchange witness lists, copies
of prior Statements of proposed witnesses, and copies of proposed
hearing exhibits, including copies of any written Statements that the
party intends to offer in lieu of live testimony in accordance with
Sec. 13.33(b). At the time the above Documents are exchanged, any party
that intends to rely on the transcript of deposition testimony in lieu
of live testimony at the hearing, if permitted by the ALJ, will provide
each party with a copy of the specific pages of the transcript it
intends to introduce into evidence.
(b) If a party objects, the ALJ will not admit into evidence the
testimony of any witness whose name does not appear on the witness list
of any exhibit not provided to the opposing party as provided above
unless the ALJ finds good cause for the failure or that there is no
prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ,
Documents exchanged in accordance with paragraph (a) of this section
will be deemed to be authentic for the purpose of admissibility at the
hearing.
Sec. 13.23 Subpoenas for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any
Individual at the hearing may request that the ALJ issue a subpoena.
Requests for witness testimony of senior level DHS officials (including
career and non-career senior executive level employees) shall not be
approved absent a showing of compelling need that cannot be met by any
other means.
(b) A subpoena requiring the attendance and testimony of an
Individual may also require the Individual to produce Documents at the
hearing.
(c) A party seeking a subpoena will file a written request therefore
not less than 15 days before the date fixed for the hearing unless
otherwise allowed by the ALJ for good cause shown. Such request will be
accompanied by a proposed subpoena, which will specify and Documents to
be produced and will designate the witnesses and describe the address
and location thereof with sufficient particularity to permit such
witnesses to be found.
(d) The subpoena will specify the time and place at which the
witness is to appear and any Documents the witness is to produce.
(e) The party seeking the subpoena will serve it in the manner
prescribed in Sec. 13.8. A subpoena on a party or upon an Individual
under the control of party may be served by first class mail.
(f) A party or the Individual to whom the subpoena is directed may
file a motion to quash the subpoena within ten days after service or on
or before the time specified in the subpoena for compliance if it is
less than ten days after service. If the ALJ has not acted on such a
motion by the return date, such date will be suspended pending the ALJ's
final action on the motion.
Sec. 13.24 Protective order.
(a) A party or a prospective witness or deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may Make any order that
justice requires to protect a party or Person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of discovery
other than that requested;
(4) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
(5) That discovery be conducted with no one present except Persons
designated by the ALJ;
[[Page 160]]
(6) That the contents of discovery or evidence be sealed;
(7) That a deposition after being sealed be opened only by order of
the ALJ;
(8) That a trade secret or other confidential research, development,
commercial information, or facts pertaining to any criminal
investigation, proceeding, or other administrative investigation not be
disclosed or be disclosed only in a designated way; and
(9) That the parties simultaneously submit to the ALJ specified
Documents or information enclosed in sealed envelopes to be opened as
directed by the ALJ.
Sec. 13.25 Fees.
The party requesting a subpoena will pay the cost of the fees and
mileage of any witness subpoenaed in the amounts that would be payable
to a witness in a proceeding in United States District Court. A check
for witness fees and mileage will accompany the subpoena when served,
except that when a subpoena is issued on behalf of the Authority, a
check for witness fees and mileage need not accompany the subpoena.
Sec. 13.26 Filing, form and service of papers.
(a) Filing and form. (1) Documents filed with the ALJ will include
an original and two copies.
(2) Every pleading and paper filed in the proceeding will contain a
caption setting forth the title of the action, the case number assigned
by the ALJ, and a designation of the paper (e.g., Motion to Quash
Subpoena).
(3) Every pleading and paper will be signed by, and will contain the
address and telephone number of, the party or the Person on whose behalf
the paper was filed, or his or her Representative.
(4) Papers are considered filed when they are mailed. Date of
mailing may be established by a certificate from the party or its
Representative or by proof that the Document was sent by certified or
registered mail.
(b) Service. A party filing a Document will, at the time of filing,
serve a copy of such Document on every other party. Service upon any
party of any Document other than those required to be served as
prescribed in Sec. 13.8 will be Made by delivering a copy, or by
placing a copy of the Document in the United States mail, postage
prepaid and addressed, to the party's last known address. When a party
is represented by a Representative, service will be Made upon such
Representative in lieu of the actual party.
(c) Proof of service. A certificate of the Individual serving the
Document by Personal delivery or by mail, setting forth the manner of
service, will be proof of service.
Sec. 13.27 Computation of time.
(a) In computing any period of time under this part or in an order
issued thereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it is
a Saturday, Sunday, or legal holiday observed by the Federal Government,
in which event it includes the next business day.
(b) When the period of time allowed is less than seven days,
intermediate Saturdays, Sundays, and legal holidays observed by the
Federal Government will be excluded from the computation.
(c) Where a Document has been served or issued by placing it in the
United States mail, an additional five days will be added to the time
permitted for any responses.
Sec. 13.28 Motions.
(a) Any application to the ALJ for an order or ruling will be by
motion. Motions will state the relief sought, the authority relied upon,
and the facts alleged, and will be filed and served on all other
parties.
(b) Except for motions Made during a prehearing conference or at the
hearing, all motions will be in writing. The ALJ may require that oral
motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other
time as may be fixed by the ALJ, any party may file a response to such
motion.
(d) The ALJ may not grant a written motion before the time for
filing response thereto has expired, except upon consent of the parties
or following a hearing on the motion, but may overrule or deny such
motion without awaiting a response.
[[Page 161]]
(e) The ALJ will Make a reasonable effort to dispose of all
outstanding motions before the hearing begins.
(f) Except as provided by Sec. Sec. 13.21(e)(3) and 13.23(f), which
concern subpoenas, the filing or pendency of a motion will not
automatically alter or extend a deadline or return date.
Sec. 13.29 Sanctions.
(a) The ALJ may sanction a Person, including any party or
Representative, for:
(1) Failing to comply with an order, rule, or procedure governing
the proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
(b) Sanctions include but are not limited to those specifically set
forth in paragraphs (c), (d), and (e) of this section. Any such sanction
will reasonably relate to the severity and nature of the failure or
misconduct.
(c) When a party fails to comply with an order, including an order
for taking a deposition, the production of evidence within the party's
control, or a request for admission, the ALJ may:
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) In the case of requests for admission, deem each matter of which
an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this
part begun by service of a notice of hearing, the ALJ may dismiss the
action or may issue an Initial Decision imposition penalties and
assessments.
(e) The ALJ may refuse to consider any motion, request, response,
brief or other Document that is not filed in a timely fashion.
Sec. 13.30 The hearing and burden of proof.
(a) The ALJ will conduct a hearing on the record in order to
determine whether the Defendant is liable for a civil penalty or
assessment under Sec. 13.3 and, if so, the appropriate amount of any
such civil penalty or assessment considering any aggravating or
mitigating factors.
(b) The Authority will prove Defendant's liability and any
aggravating factors by a preponderance of the evidence.
(c) The Defendant will prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
(d) The hearing will be open to the public unless otherwise ordered
by the ALJ for good cause shown.
Sec. 13.31 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and
assessments, the ALJ and the Authority Head, upon appeal, should
evaluate any circumstances that mitigate or aggravate the violation and
should articulate in their opinions the reasons that support the
penalties and assessments they impose. Because of the intangible costs
of fraud, the expense of investigating such conduct, and the need to
deter others who might be similarly tempted, ordinarily double damages
and a significant civil penalty should be imposed.
(b) Although not exhaustive, the following factors are among those
that may influence the ALJ and the Authority Head in determining the
amount of penalties and assessments to impose with respect to the
misconduct (i.e., the false fictitious, of fraudulent Claims or
Statements) charged in the Complaint:
(1) The number of false, fictitious, or fraudulent Claims or
Statements;
(2) The time period over which such Claims or Statements were Made;
(3) The degree of the Defendant's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
Benefit falsely claimed;
[[Page 162]]
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the costs of
investigation;
(6) The relationship of the amount imposed as civil penalties to the
amount of the Government's loss;
(7) The potential or actual impact of the misconduct upon national
defense, public health or safety, or public confidence in the management
of Government programs and operations, including particularly the impact
on the intended beneficiaries of such programs;
(8) Whether the Defendant has engaged in a pattern of the same or
similar misconduct;
(9) Whether the Defendant attempted to conceal the misconduct;
(10) The degree to which the Defendant has involved others in the
misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the
Defendant, the extent to which the Defendant's practices fostered or
attempted to preclude such misconduct;
(12) Whether the Defendant cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the Defendant assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree of
the Defendant's sophistication with respect to it, including the extent
of the Defendant's prior participation in the program or in similar
transactions;
(15) Whether the Defendant has been found, in any criminal, civil,
or administrative proceeding to have engaged in similar misconduct or to
have dealt dishonestly with the Government of the United States or of a
State, directly or indirectly; and
(16) The need to deter the Defendant and others from engaging in the
same or similar misconduct.
(c) Nothing in this section will be construed to limit the ALJ or
the Authority Head from considering any other factors that in any given
case may mitigate or aggravate the offense for which penalties and
assessments are imposed.
Sec. 13.32 Location of hearing.
(a) The hearing may be held:
(1) In any judicial district of the United States in which the
Defendant resides or transacts business;
(2) In any judicial district of the United States in which the Claim
or Statement in issue was Made; or
(3) In such other place as may be agreed upon by the Defendant and
the ALJ.
(b) Each party will have the opportunity to present written and oral
argument with respect to the location of the hearing.
(c) The hearing will be held at the place and at the time ordered by
the ALJ.
Sec. 13.33 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony
at the hearing will be given orally by witnesses under oath or
affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the
form of a written Statement or deposition. Any such written Statement
must be provided to all other parties along with the last known address
of such witness, in a manner that allows sufficient time for other
parties to subpoena such witness for cross-examination at the hearing.
Prior written Statements of witnesses proposed to testify at the hearing
and deposition transcripts will be exchanged as provided in Sec.
13.22(a).
(c) The ALJ will exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the
ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.
(d) The ALJ will permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the
facts.
(e) At the discretion of the ALJ, a witness may be cross-examined on
matters relevant to the proceeding without regard to the scope of his or
her direct examination. To the extent permitted
[[Page 163]]
by the ALJ, cross-examination on matters outside the scope of direct
examination will be conducted in the manner of direct examination and
may proceed by leading questions only if the witness is a hostile
witness, an adverse party, or a witness identified with an adverse
party.
(f) Upon motion of any party, the ALJ will order witnesses excluded
so that they cannot hear the testimony of other witnesses. This rule
does not authorize exclusion of:
(1) A party who is an Individual;
(2) In the case of a party that is not an Individual, an officer or
employee of the party;
(i) Appearing for the entity pro se; or
(ii) Designated by the party's Representative; or
(3) An Individual whose presence is shown by a party to be essential
to the presentation of its case, including an Individual employed by the
Government engaged in assisting the Representative for the Government.
Sec. 13.34 Evidence.
(a) The ALJ will determine the admissibility of evidence.
(b) Except as provided in this part, the ALJ will not be bound by
the Federal Rules of Evidence. However, the ALJ may apply the Federal
Rules of Evidence where appropriate, e.g., to exclude unreliable
evidence.
(c) The ALJ will exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or by considerations of undue delay or needless
presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is privileged
under Federal law.
(f) Evidence concerning offers of compromise or settlement will be
inadmissible to the extent provided in Rule 408 of the Federal Rules of
Evidence.
(g) The ALJ will permit the parties to introduce rebuttal witnesses
and evidence.
(h) All Documents and other evidence offered or taken for the record
will be open to examination by all parties, unless otherwise ordered by
the ALJ pursuant to Sec. 13.24.
Sec. 13.35 The record.
(a) The hearing will be recorded and transcribed. Transcripts may be
obtained following the hearing from the ALJ at a cost not to exceed the
actual cost of duplication.
(b) The transcript of testimony, exhibits and other evidence
admitted at the hearing, and all papers and requests filed in the
proceeding constitute the record for the decision by the ALJ and the
Authority Head.
(c) The record may be inspected and copied (upon payment of a
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant
to Sec. 13.24.
Sec. 13.36 Post-hearing briefs.
The ALJ may require the parties to file post-hearing briefs. In any
event, any party may file a post-hearing brief. The ALJ will fix the
time for filing such briefs. Such briefs may be accompanied by proposed
findings of fact and conclusions of law. The ALJ may permit the parties
to file reply briefs.
Sec. 13.37 Initial Decision.
(a) The ALJ will issue an Initial Decision based only on the record,
which will contain findings of fact, conclusions of law, and the amount
of any penalties and assessments imposed.
(b) The findings of fact will include a finding on each of the
following issues:
(1) Whether the Claims or Statements identified in the Complaint, or
any portions thereof, violate Sec. 13.3;
(2) If the Person is liable for penalties or assessments, the
appropriate amount of any such penalties or assessments considering any
mitigating or aggravating factors that he or she finds in the case, such
as those described in Sec. 13.31.
(c) The ALJ will promptly serve the Initial Decision on all parties
within 90 days after the time for submission of post-hearing briefs and
reply briefs (if permitted) has expired. The ALJ will at the same time
serve all parties with a Statement describing the right of any Defendant
determined to be liable for a civil penalty or assessment to file a
motion for reconsideration with the
[[Page 164]]
ALJ or a notice of appeal with the Authority Head. If the ALJ fails to
meet the deadline contained in this paragraph, he or she will notify the
parties of the reason for the delay and will set a new deadline.
(d) Unless the Initial Decision of the ALJ is timely appealed to the
Authority Head, or a motion for reconsideration of the Initial Decision
is timely filed, the Initial Decision will constitute the final decision
of the Authority Head and will be final and binding on the parties 30
days after it is issued by the ALJ.
Sec. 13.38 Reconsideration of Initial Decision.
(a) Except as provided in paragraph (d) of this section, any party
may file a motion for reconsideration of the Initial Decision within 20
days of receipt of the Initial Decision. If service was Made by mail,
receipt will be presumed to be five days from the date of mailing in the
absence of contrary proof.
(b) Every such motion must set forth the matters claimed to have
been erroneously decided and the nature of the alleged errors. Such
motion will be accompanied by a supporting brief.
(c) Responses to such motions will be allowed only upon request of
the ALJ.
(d) No party may file a motion for reconsideration of an Initial
Decision that has been revised in response to a previous motion for
reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying
it or by issuing a revised Initial Decision.
(f) If the ALJ denies a motion for reconsideration, the Initial
Decision will constitute the final decision of the Authority Head and
will be final and binding on the parties 30 days after the ALJ denies
the motion, unless the Initial Decision is timely appealed to the
Authority Head in accordance with Sec. 13.39.
(g) If the ALJ issues a revised Initial Decision, that decision will
constitute the final decision of the Authority Head and will be final
and binding on the parties 30 days after it is issued, unless it is
timely appealed to the Authority Head in accordance with Sec. 13.39.
Sec. 13.39 Appeal to Authority Head.
(a) Any Defendant who has served a timely answer and who is
determined in an Initial Decision to be liable for a civil penalty or
assessment may appeal such decision to the Authority Head by filing a
notice of appeal in accordance with this section and Sec. 13.26.
(b)(1) A notice of appeal may be filed at any time within 30 days
after the ALJ issues an Initial Decision. However, if another party
files a motion for reconsideration under Sec. 13.38, consideration of
the appeal will be stayed automatically pending resolution of the motion
for reconsideration.
(2) If a Defendant files a timely motion for reconsideration, a
notice of appeal may be filed within 30 days after the ALJ denies the
motion or issues a revised Initial Decision, whichever applies.
(3) The Authority Head may extend the initial 30-day period for an
additional 30 days if the Defendant files with the Authority Head a
request for an extension within the initial 30-day period and shows good
cause.
(c) If the Defendant files a timely notice of appeal and the time
for filing motions for reconsideration under Sec. 13.38 has expired,
the ALJ will forward two copies of the notice of appeal to the Authority
Head, and will forward or Make available the record of the proceeding to
the Authority Head.
(d) A notice of appeal will be accompanied by a written brief
specifying exceptions to the Initial Decision and reasons supporting the
exceptions.
(e) The Representative for the Government may file a brief in
opposition to exceptions within 30 days of receiving the notice of
appeal and accompanying brief.
(f) There is no right to appear personally before the Authority
Head.
(g) There is no right to appeal any interlocutory ruling by the ALJ.
(h) In reviewing the Initial Decision, the Authority Head will not
consider any objection that was not raised before the ALJ unless a
demonstration is Made of extraordinary circumstances causing the failure
to raise the objection.
(i) If any party demonstrates to the satisfaction of the Authority
Head that additional evidence not presented at such hearing is material
and that there were reasonable grounds for the failure
[[Page 165]]
to present such evidence at such hearing, the Authority Head will remand
the matter to the ALJ for consideration of such additional evidence.
(j) The Authority Head may affirm, reduce, reverse, compromise,
remand, or settle any penalty or assessment determined by the ALJ in any
Initial Decision.
(k) The Authority Head will promptly serve each party to the appeal
with a copy of the decision of the Authority Head and with a Statement
describing the right of any Person determined to be liable for a penalty
or assessment to seek judicial review.
(l) Unless a petition for review is filed as provided in 31 U.S.C.
3805 after a Defendant has exhausted all administrative remedies under
this part and within 60 days after the date on which the Authority Head
serves the Defendant with a copy of the Authority Head's decision, a
determination that a Defendant is liable under Sec. 13.3 is final and
is not subject to judicial review.
Sec. 13.40 Stays ordered by the Department of Justice.
If at any time the Attorney General or an Assistant Attorney General
designated by the Attorney General transmits to the Authority Head a
written finding that continuation of the administrative process
described in this part with respect to a Claim or Statement may
adversely affect any pending or potential criminal or civil action
related to such Claim or Statement, the Authority Head will stay the
process immediately. The Authority Head may order the process resumed
only upon receipt of the written authorization of the Attorney General.
Sec. 13.41 Stay pending appeal.
(a) An Initial Decision is stayed automatically pending disposition
of a motion for reconsideration or of an appeal to the Authority Head.
(b) No administrative stay is available following a final decision
of the Authority Head.
Sec. 13.42 Judicial review.
Section 3805 of title 31, United States Code, authorizes judicial
review by an appropriate United States District Court of a final
decision of the Authority Head imposing penalties or assessments under
this part and specifies the procedures for such review.
Sec. 13.43 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of title 31, United States Code, authorize
actions for collection of civil penalties and assessments imposed under
this part and specify the procedures for such actions.
Sec. 13.44 Right to administrative offset.
The amount of any penalty or assessment that has become final, or
for which a judgment has been entered under Sec. 13.42 or Sec. 13.43,
or any amount agreed upon in a compromise or settlement under Sec.
13.46, may be collected by administrative offset under 31 U.S.C. 3716,
except that an administrative offset may not be Made under that
subsection against a refund of an overpayment of Federal taxes, then or
later owing by the United States to the Defendant.
Sec. 13.45 Deposit in Treasury of United States.
All amounts collected pursuant to this part will be deposited as
miscellaneous receipts in the Treasury of the United States, except as
provided in 31 U.S.C. 3806(g).
Sec. 13.46 Compromise or settlement.
(a) Parties may Make offers of compromise or settlement at any time.
(b) The Reviewing Official has the exclusive authority to compromise
or settle a case under this part at any time after the date on which the
Reviewing Official is permitted to issue a Complaint and before the date
on which the ALJ issues an Initial Decision.
(c) The Authority Head has exclusive authority to compromise or
settle a case under this part at any time after the date on which the
ALJ issues an Initial Decision, except during the pendency of any review
under Sec. 13.42 or during the pendency of any action to collect
penalties and assessments under Sec. 13.43.
(d) The Attorney General has exclusive authority to compromise or
settle a case under this part during the pendency of any review under
Sec. 13.42 or of
[[Page 166]]
any action to recover penalties and assessments under 31 U.S.C. 3806.
(e) The Investigating Official may recommend settlement terms to the
Reviewing Official, the Authority Head, or the Attorney General, as
appropriate. The Reviewing Official may recommend settlement terms to
the Authority Head, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing and signed by
all parties and their Representatives.
Sec. 13.47 Limitations.
(a) The notice of hearing with respect to a Claim or Statement must
be served in the manner specified in Sec. 13.8 within 6 years after the
date on which such Claim or Statement is Made.
(b) If the Defendant fails to serve a timely answer, service of a
notice under Sec. 13.10(b) will be deemed a notice of hearing for
purposes of this section.
(c) The statute of limitations may be extended by agreement of the
parties.
PART 15_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF HOMELAND
SECURITY--Table of Contents
Sec.
15.1 Purpose.
15.2 Application.
15.3 Definitions.
15.10 Self-evaluation.
15.11 Notice.
15.30 General prohibitions against discrimination.
15.40 Employment.
15.49 Program accessibility; discrimination prohibited.
15.50 Program accessibility; existing facilities.
15.51 Program accessibility; new construction and alterations.
15.60 Communications.
15.70 Compliance procedures.
Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5
U.S.C. 301; 29 U.S.C. 794.
Source: 68 FR 10886, Mar. 6, 2003, unless otherwise noted.
Sec. 15.1 Purpose.
The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973 (``Section 504''), as amended by section 119
of the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978, which prohibits discrimination on the
basis of disability in programs or activities conducted by Executive
agencies. The provisions established by this part shall be effective for
all components of the Department, including all Department components
that are transferred to the Department, except to the extent that a
Department component already has existing section 504 regulations.
Sec. 15.2 Application.
This part applies to all programs or activities conducted by the
Department of Homeland Security (Department), except for programs or
activities conducted outside the United States that do not involve
individuals with a disability in the United States.
Sec. 15.3 Definitions.
For purposes of this part:
(a) Auxiliary aids means services or devices that enable persons
with impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the Department. For example, auxiliary aids
useful for persons with impaired vision include readers, materials in
Braille, audio recordings and other similar services and devices.
Auxiliary aids useful for persons with impaired hearing include
telephone handset amplifiers, telephones compatible with hearing aids,
telecommunications devices for deaf persons (TTYs), interpreters,
notetakers, written materials and other similar services and devices.
(b) Complete complaint means a written statement that contains the
complainant's name and address, and describes the Department's alleged
discriminatory action in sufficient detail to inform the Department of
the nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes of individuals with
disabilities shall also identify (where possible) the alleged victims of
discrimination.
[[Page 167]]
(c) Facility means all or any portion of a building, structure,
equipment, road, walk, parking lot, rolling stock, or other conveyance,
or other real or personal property.
(d) Individual with a disability means any person who has a physical
or mental impairment that substantially limits one or more of the
individual's major life activities, has a record of such an impairment,
or is regarded as having such an impairment. For purposes of this
definition:
(1) Physical or mental impairment includes:
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs, cardiovascular; reproductive, digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, drug addiction and
alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more of the individual's major life
activities.
(4) Is regarded as having an impairment means:
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the Department as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (e)(1) of
this section but is treated by the Department as having such an
impairment.
(e) Qualified individual with a disability means:
(1) With respect to a Department program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with a disability who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
Department can demonstrate would result in a fundamental alteration in
the nature of the program; and
(2) With respect to any other program or activity, an individual
with a disability who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity.
(3) With respect to employment, an individual with a disability who
satisfies the requisite skill, experience, education and other job-
related requirements of the employment position such individual holds or
desires, and who, with or without reasonable accommodation, can perform
the essential functions of such position.
(f) Section 504 means section 504 of the Rehabilitation Act of 1973
(29 U.S.C. 794), as amended. As used in this part, section 504 applies
only to programs or activities conducted by Executive agencies and not
to federally assisted programs.
Sec. 15.10 Self-evaluation.
(a) Except as provided in paragraph (d) of this section, the
Department shall, not later than March 7, 2005, evaluate its current
policies and practices, and the effects thereof, to determine if they
meet the requirements of this part. To the extent modification of any
such policy and practice is required, the Department shall proceed to
make the necessary modifications.
(b) The Department shall provide an opportunity to interested
persons, including individuals with a disability or organizations
representing individuals
[[Page 168]]
with disabilities, to participate in the self-evaluation process.
(c) The Department shall, until three years following the completion
of the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified;
(2) A description of any modifications made; and
(3) A list of participants in the self-evaluation process.
(d) If a component within the Department has already complied with
the self-evaluation requirement of a regulation implementing section
504, then the requirements of this section shall apply to only those
programs and activities conducted by that component that were not
included in the previous self-evaluation.
Sec. 15.11 Notice.
The Department shall make available to all Department employees and
interested persons information regarding the provisions of this part and
its applicability to the programs or activities conducted by the
Department, and make such information available to them in such a manner
as is necessary to apprise them of the protections against
discrimination assured them by section 504 and this part.
Sec. 15.30 General prohibitions against discrimination.
(a) No qualified individual with a disability in the United States,
shall, by reason of his or her disability, be excluded from the
participation in, be denied benefits of, or otherwise be subjected to
discrimination under any program or activity conducted by the
Department.
(b)(1) The Department, in providing any aid, benefit, or service,
may not directly or through contractual, licensing, or other
arrangements, on the basis of disability:
(i) Deny a qualified individual with a disability the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefit, or service that is
not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits or services to
individuals with a disability or to any class of individuals with a
disability than is provided to others unless such action is necessary to
provide qualified individuals with a disability with aid, benefits or
services that are as effective as those provided to others;
(v) Deny a qualified individual with a disability the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with a disability in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) For purposes of this part, aids, benefits, and services, to be
equally effective, are not required to produce the identical result or
level of achievement for individuals with a disability and for
nondisabled persons, but must afford individuals with a disability equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement in the most integrated setting
appropriate to the individual's needs.
(3) Even if the Department is permitted, under paragraph (b)(1)(iv)
of this section, to operate a separate or different program for
individuals with a disability or for any class of individuals with a
disability, the Department must permit any qualified individual with a
disability who wishes to participate in the program that is not separate
or different to do so.
(4) The Department may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would:
(i) Subject qualified individuals with a disability to
discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with a disability.
[[Page 169]]
(5) The Department may not, in determining the site or location of a
facility, make selections the purpose or effect of which would:
(i) Exclude individuals with a disability from, deny them the
benefits of, or otherwise subject them to discrimination under any
program or activity conducted by the Department; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with a
disability.
(6) The Department, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with a disability to
discrimination on the basis of disability.
(7) The Department may not administer a licensing or certification
program in a manner that subjects qualified individuals with a
disability to discrimination on the basis of disability, nor may the
Department establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
a disability to discrimination on the basis of disability. However, the
programs or activities of entities that are licensed or certified by the
Department are not, themselves, covered by this part.
(c) The exclusion of nondisabled persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with a disability or the exclusion of a specific class of individuals
with a disability from a program limited by Federal statute or Executive
order to a different class of individuals with a disability is not
prohibited by this part.
(d) The Department shall administer programs and activities in the
most integrated setting appropriate to the needs of qualified
individuals with a disability.
Sec. 15.40 Employment.
No qualified individual with a disability shall, on the basis of
that disability, be subjected to discrimination in employment under any
program or activity conducted by the Department. The definitions,
requirements and procedures of section 501 of the Rehabilitation Act of
1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity
Commission in 29 CFR part 1614, shall apply to employment of Federally
conducted programs or activities.
Sec. 15.49 Program accessibility; discrimination prohibited.
Except as otherwise provided in Sec. 15.50, no qualified individual
with a disability shall, because the Department's facilities are
inaccessible to or unusable by individuals with a disability, be denied
the benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the Department.
Sec. 15.50 Program accessibility; existing facilities.
(a) General. The Department shall operate each program or activity
so that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with a disability. This
paragraph (a) does not require the Department:
(1) To make structural alterations in each of its existing
facilities in order to make them accessible to and usable by individuals
with a disability where other methods are effective in achieving
compliance with this section; or
(2) To take any action that it can demonstrate would result in a
fundamental alteration in the nature of a program or activity or in
undue financial and administrative burdens. In those circumstances where
Department personnel believe that the proposed action would
fundamentally alter the program or activity or would result in undue
financial and administrative burdens, the Department has the burden of
proving that compliance with this paragraph (a) of this section would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the Secretary of
Homeland Security (or his or her designee) after considering all agency
resources available for use in the funding and operation of the
conducted program or activity and must be accompanied by a written
statement of the reasons for reaching that conclusion. If an action
would result in such an alteration or such burdens, the Department shall
[[Page 170]]
take any other action that would not result in such an alteration or
such burdens but would nevertheless ensure that individuals with a
disability receive the benefits and services of the program or activity.
(b) Methods. The Department may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with a disability. The Department, in making alterations to
existing buildings, shall meet accessibility requirements to the extent
required by the Architectural Barriers Act of 1968, as amended (42
U.S.C. 4151-4157), and any regulations implementing it. In choosing
among available methods for meeting the requirements of this section,
the Department shall give priority to those methods that offer programs
and activities to qualified individuals with a disability in the most
integrated setting appropriate.
(c) Time period for compliance. The Department shall comply with the
obligations established under this section not later than May 5, 2003,
except that where structural changes in facilities are undertaken, such
changes shall be made not later than March 6, 2006, but in any event as
expeditiously as possible. If a component within the Department has
already complied with the accessibility requirements of a regulation
implementing section 504, then the provisions of this paragraph shall
apply only to facilities for that agency's programs and activities that
were not previously made readily accessible to and usable by individuals
with disabilities in compliance with that regulation.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
Department shall develop not later than September 8, 2003, a transition
plan setting forth the steps necessary to complete such changes. The
Department shall provide an opportunity to interested persons, including
individuals with disabilities or organizations representing individuals
with disabilities, to participate in the development of the transition
plan by submitting comments (both telephonic and written). A copy of the
transition plan shall be made available for public inspection. If a
component of the Department has already complied with the transition
plan requirement of a regulation implementing section 504, then the
requirements of this paragraph shall apply only to the agency's
facilities for programs and activities that were not included in the
previous transition plan. The plan shall at a minimum:
(1) Identify physical obstacles in the Department's facilities that
limit the physical accessibility of its programs or activities to
individuals with disabilities;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 15.51 Program accessibility; new construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the Department shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with a disability. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR 101-19.600 through 101-19.607 apply to buildings
covered by this section.
Sec. 15.60 Communications.
(a) The Department shall take appropriate steps to effectively
communicate with applicants, participants, personnel of other Federal
entities, and members of the public.
[[Page 171]]
(1) The Department shall furnish appropriate auxiliary aids where
necessary to afford an individual with a disability an equal opportunity
to participate in, and enjoy the benefits of, a program or activity
conducted by the Department.
(i) In determining what type of auxiliary aid is necessary, the
Department shall give primary consideration to the requests of the
individual with a disability.
(ii) The Department need not provide individually prescribed
devices, readers for personal use or study, or other devices of a
personal nature to applicants or participants in programs.
(2) Where the Department communicates with applicants and
beneficiaries by telephone, the Department shall use telecommunication
devices for deaf persons (TTYs) or equally effective telecommunication
systems to communicate with persons with impaired hearing.
(b) The Department shall make available to interested persons,
including persons with impaired vision or hearing, information as to the
existence and location of accessible services, activities, and
facilities.
(c) The Department shall post notices at a primary entrance to each
of its inaccessible facilities, directing users to an accessible
facility, or to a location at which they can obtain information about
accessible facilities. The international symbol for accessibility shall
be used at each primary entrance of an accessible facility.
(d) This section does not require the Department to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens.
(e) In those circumstances where Department personnel believe that
the proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the
Department has the burden of proving that compliance with this section
would result in such alteration or burdens. The decision that compliance
would result in such alteration or burdens must be made by the Secretary
of Homeland Security (or his or her designee) after considering all
resources available for use in the funding and operation of the
conducted program or activity and must be accompanied by a written
statement of the reasons for reaching that conclusion. If an action
required to comply with this section would result in such an alteration
or such burdens, the Department shall take any other action that would
not result in such an alteration or such burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with a
disability receive the benefits and services of the program or activity.
Sec. 15.70 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
disability in programs and activities conducted by the Department.
(b) The Department shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1614.
(c) All other complaints alleging violations of section 504 may be
sent to the Officer for Civil Rights and Civil Liberties, Department of
Homeland Security, Washington, DC 20528. The Officer for Civil Rights
and Civil Liberties shall be responsible for coordinating implementation
of this section.
(d)(1) Any person who believes that he or she has been subjected to
discrimination prohibited by this part may by him or herself, or by his
or her authorized representative, file a complaint. Any person who
believes that any specific class of persons has been subjected to
discrimination prohibited by this part and who is a member of that class
or the authorized representative of a member of that class may file a
complaint.
(2) The Department shall accept and investigate all complete
complaints over which it has jurisdiction.
(3) All complete complaints must be filed within 180 days of the
alleged act of discrimination. The Department may extend this time
period for good cause.
[[Page 172]]
(e) If the Department receives a complaint over which it does not
have jurisdiction, it shall promptly notify the complainant and shall
make reasonable efforts to refer the complaint to the appropriate entity
of the Federal government.
(f) The Department shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with disabilities.
(g)(1) Not later than 180 days from the receipt of a complete
complaint over which it has jurisdiction, the Department shall notify
the complainant of the results of the investigation in a letter
containing:
(i) Findings of fact and conclusions of law;
(ii) A description of a remedy for each violation found; and
(iii) A notice of the right to appeal.
(2) Department employees are required to cooperate in the
investigation and attempted resolution of complaints. Employees who are
required to participate in any investigation under this section shall do
so as part of their official duties and during the course of regular
duty hours.
(3) If a complaint is resolved informally, the terms of the
agreement shall be reduced to writing and made part of the complaint
file, with a copy of the agreement provided to the complainant. The
written agreement shall describe the subject matter of the complaint and
any corrective action to which the parties have agreed.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant not later than 60 days after
receipt from the Department of the letter required by paragraph (g)(1)
of this section. The Department may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Officer
for Civil Rights and Civil Liberties, or designee thereof, who will
issue the final agency decision which may include appropriate corrective
action to be taken by the Department.
(j) The Department shall notify the complainant of the results of
the appeal within 30 days of the receipt of the appeal. If the
Department determines that it needs additional information from the
complainant, it shall have 30 days from the date it received the
additional information to make its determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended for an individual case when the Officer for Civil Rights
and Civil Liberties determines that there is good cause, based on the
particular circumstances of that case, for the extension.
(l) The Department may delegate its authority for conducting
complaint investigations to other Federal agencies and may contract with
nongovernment investigators to perform the investigation, but the
authority for making the final determination may not be delegated to
another agency.
PART 17_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE-
-Table of Contents
Subpart A_Introduction
Sec.
17.100 Purpose and effective date.
17.105 Definitions.
17.110 Remedial and affirmative action and self-evaluation.
17.115 Assurance required.
17.120 Transfers of property.
17.125 Effect of other requirements.
17.130 Effect of employment opportunities.
17.135 Designation of responsible employee and adoption of grievance
procedures.
17.140 Dissemination of policy.
Subpart B_Coverage
17.200 Application.
17.205 Educational institutions and other entities controlled by
religious organizations.
17.210 Military and merchant marine educational institutions.
17.215 Membership practices of certain organizations.
17.220 Admissions.
17.225 Educational institutions eligible to submit transition plans.
17.230 Transition plans.
[[Page 173]]
17.235 Statutory amendments.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
17.300 Admission.
17.305 Preference in admission.
17.310 Recruitment.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
17.400 Education programs or activities.
17.405 Housing.
17.410 Comparable facilities.
17.415 Access to course offerings.
17.420 Access to schools operated by LEAs.
17.425 Counseling and use of appraisal and counseling materials.
17.430 Financial assistance.
17.435 Employment assistance to students.
17.440 Health and insurance benefits and services.
17.445 Marital or parental status.
17.450 Athletics.
17.455 Textbooks and curricular material.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
17.500 Employment.
17.505 Employment criteria.
17.510 Recruitment.
17.515 Compensation.
17.520 Job classification and structure.
17.525 Fringe benefits.
17.530 Marital or parental status.
17.535 Effect of state or local law or other requirements.
17.540 Advertising.
17.545 Pre-employment inquiries.
17.550 Sex as a bona fide occupational qualification.
Subpart F_Procedures
17.600 Notice of covered programs.
17.605 Enforcement procedures.
17.635 Forms and instructions; coordination.
Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5
U.S.C. 301; 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: 68 FR 10892, Mar. 6, 2003, unless otherwise noted.
Subpart A_Introduction
Sec. 17.100 Purpose and effective date.
(a) The purpose of these Title IX regulations is to effectuate Title
IX of the Education Amendments of 1972, as amended (except sections 904
and 906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686,
1687, 1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be March 6, 2003.
(b) The provisions established by this part shall be effective for
all components of the Department, including all Department components
that are transferred to the Department, except to the extent that a
Department component already has existing Title IX regulations.
Sec. 17.105 Definitions.
As used in these Title IX regulations, the term:
(a) Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
(b) Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
(c) Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
(d) Department means Department of Homeland Security.
(e) Designated agency official means the Officer for Civil Rights
and Civil Liberties, or the designee thereof.
(f) Educational institution means a local educational agency (LEA)
as defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient
[[Page 174]]
that is an institution of graduate higher education, an institution of
undergraduate higher education, an institution of professional
education, or an institution of vocational education, as defined in this
section.
(g) Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Federal agency
that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market value
of the property is not, upon such sale or transfer, properly accounted
for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
(h) Institution of graduate higher education means an institution
that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
(i) Institution of professional education means an institution
(except any institution of undergraduate higher education) that offers a
program of academic study that leads to a first professional degree in a
field for which there is a national specialized accrediting agency
recognized by the Secretary of Education.
(j) Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of
college-level study beyond the high school level, leading to a diploma
or an associate degree, or wholly or principally creditable toward a
baccalaureate degree;
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
(k) Institution of vocational education means a school or
institution (except an institution of professional or graduate or
undergraduate higher education) that has as its primary purpose
preparation of students to pursue a technical, skilled, or semi-skilled
occupation or trade, or to pursue study in a technical field, whether or
not the school or institution offers certificates, diplomas, or degrees
and whether or not it offers full-time study.
(l) Recipient means any State or political subdivision thereof or
any instrumentality of a State or political subdivision thereof, any
public or private agency, institution, or organization, or other entity,
or any person, to whom Federal financial assistance is extended directly
or through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
[[Page 175]]
(m) Reviewing authority means that component of the Department
delegated authority to review the decisions of hearing officers in cases
arising under these Title IX regulations.
(n) Secretary means Secretary of the Department of Homeland
Security.
(o) Student means a person who has gained admission.
(p) Title IX means Title IX of the Education Amendments of 1972,
Public Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C.
1681-1688) (except sections 904 and 906 thereof), as amended by section
3 of Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by section 3
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
(q) Title IX regulations means the provisions of this part.
(r) Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972 (20 U.S.C. 1681(a)(2)), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
admits students of both sexes without discrimination.
Sec. 17.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp.,
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p.
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p.
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of March 6, 2003:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 17.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that each education program or activity operated by the
applicant or recipient and to which these Title IX regulations apply
will be operated in compliance with these Title IX regulations. An
assurance of compliance with these Title IX regulations shall not be
satisfactory to the designated agency official if the
[[Page 176]]
applicant or recipient to whom such assurance applies fails to commit
itself to take whatever remedial action is necessary in accordance with
Sec. 17.110(a) to eliminate existing discrimination on the basis of sex
or to eliminate the effects of past discrimination whether occurring
prior to or subsequent to the submission to the designated agency
official of such assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 17.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and the Federal share of the
fair market value of the property is not upon such sale or transfer
properly accounted for to the Federal Government, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Sec. Sec. 17.205 through 17.235(a).
Sec. 17.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by Executive
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that would
render any applicant or student ineligible, or limit the eligibility of
any applicant or student, on the basis of sex, to practice any
occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club, athletic
or other league, or association that would render any applicant or
student ineligible to participate or limit the eligibility or
participation of any applicant or student, on the basis of sex, in any
education program or activity operated by a recipient and that receives
Federal financial assistance.
Sec. 17.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not
obviated or alleviated because employment opportunities in any
occupation or profession are or may be more limited for members of one
sex than for members of the other sex.
[[Page 177]]
Sec. 17.135 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under these Title IX regulations,
including any investigation of any complaint communicated to such
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations. The recipient shall notify all its students and employees
of the name, office address, and telephone number of the employee or
employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by these Title IX regulations.
Sec. 17.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific and continuing steps to notify applicants for admission and
employment, students and parents of elementary and secondary school
students, employees, sources of referral of applicants for admission and
employment, and all unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Sec. Sec. 17.300 through 17.310 do not apply to the recipient,
and that inquiries concerning the application of Title IX and these
Title IX regulations to such recipient may be referred to the employee
designated pursuant to Sec. 17.135, or to the designated agency
official.
(2) Each recipient shall make the initial notification required by
paragraph (a)(1) of this section within 90 days of March 6, 2003 or of
the date these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and shall
require such representatives to adhere to such policy.
Subpart B_Coverage
Sec. 17.200 Application.
Except as provided in Sec. Sec. 17.205 through 17.235(a), these
Title IX regulations apply to every recipient and to each education
program or activity operated by such recipient that receives Federal
financial assistance.
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Sec. 17.205 Educational institutions and other entities controlled
by religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations would not be consistent with the religious
tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
Sec. 17.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational
institution whose primary purpose is the training of individuals for a
military service of the United States or for the merchant marine.
Sec. 17.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership
of which consists primarily of students in attendance at institutions of
higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1986 (26 U.S.C. 501(a)), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 17.220 Admissions.
(a) General. Admissions to educational institutions prior to June
24, 1973, are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Sec. Sec. 17.225, 17.230, and 17.300 through 17.310, each
administratively separate unit shall be deemed to be an educational
institution.
(c) Application of Sec. Sec. 17.300 through 17.310. Except as
provided in paragraphs (d) and (e) of this section, Sec. Sec. 17.300
through 17.310 apply to each recipient. A recipient to which Sec. Sec.
17.300 through 17.310 apply shall not discriminate on the basis of sex
in admission or recruitment in violation of Sec. Sec. 17.300 through
17.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Sec. Sec. 17.300 through 17.310 apply only to institutions of
vocational education, professional education, graduate higher education,
and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education. Sections
17.300 through 17.310 do not apply to any public institution of
undergraduate higher education that traditionally and continually from
its establishment has had a policy of admitting students of only one
sex.
Sec. 17.225 Educational institutions eligible to submit transition
plans.
(a) Application. This section applies to each educational
institution to which Sec. Sec. 17.300 through 17.310 apply that:
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(2) Admitted students of only one sex as regular students as of June
23, 1965, but thereafter admitted, as regular students, students of the
sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this
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section applies shall not discriminate on the basis of sex in admission
or recruitment in violation of Sec. Sec. 17.300 through 17.310.
Sec. 17.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 17.225
applies and that is composed of more than one administratively separate
unit may submit either a single transition plan applicable to all such
units, or a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education Code of the educational institution submitting such plan, the
administratively separate units to which the plan is applicable, and the
name, address, and telephone number of the person to whom questions
concerning the plan may be addressed. The person who submits the plan
shall be the chief administrator or president of the institution, or
another individual legally authorized to bind the institution to all
actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes as regular students and, if
so, when it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to admitting
students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 17.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Sec. Sec. 17.300 through
17.310 unless such treatment is necessitated by an obstacle identified
in paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 17.225 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to such institution. Such
steps shall include instituting recruitment programs that emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
Sec. 17.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
[[Page 180]]
(c) For purposes of these Title IX regulations, program or activity
or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in 20 U.S.C. 8801),
system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship:
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the application
of 20 U.S.C. 1681 to such operation would not be consistent with the
religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or
other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a program or activity subject to these
Title IX regulations if the college, university, or other institution
receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to
require or prohibit any person, or public or private entity, to provide
or pay for any benefit or service, including the use of facilities,
related to an abortion. Medical procedures, benefits, services, and the
use of facilities, necessary to save the life of a pregnant woman or to
address complications related to an abortion are not subject to this
section.
(2) Nothing in this section shall be construed to permit a penalty
to be imposed on any person or individual because such person or
individual is seeking or has received any benefit or service related to
a legal abortion. Accordingly, subject to paragraph (d)(1) of this
section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated by a recipient that receives
Federal financial assistance because such individual has sought or
received, or is seeking, a legal abortion, or any benefit or service
related to a legal abortion.
Subpart C_Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 17.300 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which Sec. Sec. 17.300 through 17.310 apply, except as
provided in Sec. Sec. 17.225 and 17.230.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Sec. Sec. 17.300 through 17.310
apply shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking
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applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the basis of sex unless the use of such test or criterion is
shown to predict validly success in the education program or activity in
question and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Sec. Sec. 17.300 through 17.310 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice that so
discriminates or excludes;
(3) Subject to Sec. 17.235(d), shall treat disabilities related to
pregnancy, childbirth, termination of pregnancy, or recovery therefrom
in the same manner and under the same policies as any other temporary
disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 17.305 Preference in admission.
A recipient to which Sec. Sec. 17.300 through 17.310 apply shall
not give preference to applicants for admission, on the basis of
attendance at any educational institution or other school or entity that
admits as students only or predominantly members of one sex, if the
giving of such preference has the effect of discriminating on the basis
of sex in violation of Sec. Sec. 17.300 through 17.310.
Sec. 17.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.
17.300 through 17.310 apply shall not discriminate on the basis of sex
in the recruitment and admission of students. A recipient may be
required to undertake additional recruitment efforts for one sex as
remedial action pursuant to Sec. 17.110(a), and may choose to undertake
such efforts as affirmative action pursuant to Sec. 17.110(b).
(b) Recruitment at certain institutions. A recipient to which
Sec. Sec. 17.300 through 17.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that admit
as students only or predominantly members of one sex, if such actions
have the effect of discriminating on the basis of sex in violation of
Sec. Sec. 17.300 through 17.310.
Subpart D_Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 17.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research,
occupational training, or other education program or activity operated
by a recipient that receives Federal financial assistance. Sections
17.400 through 17.455 do not apply to actions of a recipient in
connection with admission of its students to an education program or
activity of a recipient to which Sec. Sec. 17.300 through 17.310 do not
apply, or an entity, not a recipient, to which Sec. Sec. 17.300 through
17.310 would not apply if the entity were a recipient.
[[Page 182]]
(b) Specific prohibitions. Except as provided in Sec. Sec. 17.400
through 17.455, in providing any aid, benefit, or service to a student,
a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing any aid, benefit, or
service to students or employees; or
(7) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
administers or assists in the administration of such scholarships,
fellowships, or other awards that are restricted to members of one sex
provides, or otherwise makes available, reasonable opportunities for
similar studies for members of the other sex. Such opportunities may be
derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This
paragraph (d) applies to any recipient that requires participation by
any applicant, student, or employee in any education program or activity
not operated wholly by such recipient, or that facilitates, permits, or
considers such participation as part of or equivalent to an education
program or activity operated by such recipient, including participation
in educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of such recipient that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
Sec. 17.405 Housing.
(a) General. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall
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take such reasonable action as may be necessary to assure itself that
such housing as is provided to students of one sex, when compared to
that provided to students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.
Sec. 17.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
Sec. 17.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its education program or activity separately on the basis of sex,
or require or refuse participation therein by any of its students on
such basis, including health, physical education, industrial, business,
vocational, technical, home economics, music, and adult education
courses.
(b)(1) With respect to physical education classes and activities at
the elementary school level, the recipient shall comply fully with this
section as expeditiously as possible, but in no event later than one
year from March 6, 2003. With respect to physical education classes and
activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from March 6, 2003.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(3) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 17.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission, courses, services, and
facilities comparable to each course, service, and facility offered in
or through such schools.
Sec. 17.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or other materials for appraising or counseling students shall
not use different materials for students on the basis of their sex or
use materials that permit or require different treatment of students on
such basis unless such different materials cover the same occupations
and interest areas and the use of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis
[[Page 184]]
of sex. Where the use of a counseling test or other instrument results
in a substantially disproportionate number of members of one sex in any
particular course of study or classification, the recipient shall take
such action as is necessary to assure itself that such disproportion is
not the result of discrimination in the instrument or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials
or by counselors.
Sec. 17.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, in providing financial assistance to any of its students, a
recipient shall not:
(1) On the basis of sex, provide different amounts or types of such
assistance, limit eligibility for such assistance that is of any
particular type or source, apply different criteria, or otherwise
discriminate;
(2) Through solicitation, listing, approval, provision of
facilities, or other services, assist any foundation, trust, agency,
organization, or person that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of sex;
or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that treats persons of one sex
differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government that
require that awards be made to members of a particular sex specified
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex.
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 17.450.
Sec. 17.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that assists any agency, organization, or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates Sec. Sec.
17.500 through 17.550.
[[Page 185]]
Sec. 17.440 Health and insurance benefits and services.
Subject to Sec. 17.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall not discriminate on the basis of sex, or
provide such benefit, service, policy, or plan in a manner that would
violate Sec. Sec. 17.500 through 17.550 if it were provided to
employees of the recipient. This section shall not prohibit a recipient
from providing any benefit or service that may be used by a different
proportion of students of one sex than of the other, including family
planning services. However, any recipient that provides full coverage
health service shall provide gynecological care.
Sec. 17.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status that treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation as long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 17.235(d), a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom in the same manner and under the same policies as any other
temporary disability with respect to any medical or hospital benefit,
service, plan, or policy that such recipient administers, operates,
offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy
for its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification for a leave of absence for as long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status that she held when the leave began.
Sec. 17.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person, or otherwise be discriminated against in any
interscholastic, intercollegiate, club, or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill or the activity involved is a contact sport. However,
where a recipient operates or sponsors a team in a particular sport for
members of one sex but operates or sponsors no such team for members of
the other sex, and athletic opportunities for members of that sex have
previously been limited, members of the excluded sex must be allowed to
try out for the team offered unless the sport involved is a contact
sport. For the purposes of these Title IX regulations, contact sports
include boxing, wrestling, rugby, ice hockey, football, basketball, and
other sports the purpose or major activity of which involves bodily
contact.
[[Page 186]]
(c) Equal opportunity. (1) A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services; and
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal
aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate
teams will not constitute noncompliance with this section, but the
designated agency official may consider the failure to provide necessary
funds for teams for one sex in assessing equality of opportunity for
members of each sex.
(d) Adjustment period. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in no event later than one year from March
6, 2003. A recipient that operates or sponsors interscholastic,
intercollegiate, club, or intramural athletics at the secondary or
postsecondary school level shall comply fully with this section as
expeditiously as possible but in no event later than three years from
March 6, 2003.
Sec. 17.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Subpart E_Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
Sec. 17.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefore, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by Sec. Sec. 17.500
through 17.550, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or
administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. Sections 17.500 through 17.550 apply to:
(1) Recruitment, advertising, and the process of application for
employment;
[[Page 187]]
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for tuition assistance, selection for sabbaticals
and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 17.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity that has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 17.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
discriminate on the basis of sex in the recruitment and hiring of
employees. Where a recipient has been found to be presently
discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have so discriminated in the past, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities that furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on
the basis of sex in violation of Sec. Sec. 17.500 through 17.550.
Sec. 17.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and that are performed under similar working conditions.
Sec. 17.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs, position
descriptions, or job requirements that classify persons on the basis of
sex, unless sex is a bona fide occupational qualification for the
positions in question as set forth in Sec. 17.550.
Sec. 17.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, the term fringe benefits means any medical, hospital,
accident, life insurance, or retirement benefit, service, policy or
plan, any profit-sharing or bonus plan, leave, and any other benefit or
service
[[Page 188]]
of employment not subject to the provisions of Sec. 17.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
Sec. 17.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment that treats persons differently
on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to Sec. 17.235(d),
a recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy, recovery therefrom, and any temporary
disability resulting therefrom as any other temporary disability for all
job-related purposes, including commencement, duration, and extensions
of leave, payment of disability income, accrual of seniority and any
other benefit or service, and reinstatement, and under any fringe
benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy, and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status that she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
Sec. 17.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Sec. Sec. 17.500 through 17.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
Sec. 17.540 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona fide occupational qualification for the
particular job in question.
Sec. 17.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss'' or ``Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by these Title IX
regulations.
[[Page 189]]
Sec. 17.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Sec. Sec.
17.500 through 17.550 provided it is shown that sex is a bona fide
occupational qualification for that action, such that consideration of
sex with regard to such action is essential to successful operation of
the employment function concerned. A recipient shall not take action
pursuant to this section that is based upon alleged comparative
employment characteristics or stereotyped characterizations of one or
the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this
section shall prevent a recipient from considering an employee's sex in
relation to employment in a locker room or toilet facility used only by
members of one sex.
Subpart F_Procedures
Sec. 17.600 Notice of covered programs.
Within 60 days of March 6, 2003, each component of the Department
that awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such component shall periodically republish the notice of covered
programs to reflect changes in covered programs. Copies of this notice
also shall be made available upon request to the Department's office
that enforces Title IX.
Sec. 17.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title
VI'') are hereby adopted and applied to these Title IX regulations.
These procedures may be found at 6 CFR part 21.
Sec. 17.635 Forms and instructions; coordination.
(a) Forms and instructions. The designated agency official shall
issue and promptly make available to interested persons forms and
detailed instructions and procedures for effectuating these Title IX
regulations.
(b) Supervision and coordination. The designated agency official may
from time to time assign to officials of the Department, or to officials
of other departments or agencies of the Government with the consent of
such departments or agencies, responsibilities in connection with the
effectuation of the purposes of Title IX and these Title IX regulations
(other than responsibility for review as provided in Sec. 17.625(e)),
including the achievements of effective coordination and maximum
uniformity within the Department and within the Executive Branch of the
Government in the application of Title IX and these Title IX regulations
to similar programs and in similar situations. Any action taken,
determination made, or requirement imposed by an official of another
department or agency acting pursuant to an assignment of responsibility
under this section shall have the same effect as though such action had
been taken by the designated official of this Department.
PART 19_NONDISCRIMINATION IN MATTERS PERTAINING TO FAITH-BASED
ORGANIZATIONS--Table of Contents
Sec.
19.1 Purpose.
19.2 Definitions.
19.3 Equal ability for faith-based organizations to seek and receive
financial assistance through DHS social service programs.
19.4 Explicitly religious activities.
19.5 Nondiscrimination requirements.
19.6 Beneficiary protections: Written notice.
19.7 Beneficiary protections: Referral requirements.
19.8 Independence of faith-based organizations.
19.9 Exemption from Title VII employment discrimination requirements.
19.10 Commingling of Federal assistance.
19.11 Nondiscrimination among faith-based organizations.
Appendix A to Part 19--Model Written Notice to Beneficiaries
Appendix B to Part 19--Notice of Award or Contract
Authority: 5 U.S.C. 301; Pub. L. 107-296; E.O. 13279, 67 FR 77141;
E.O. 13403, 71 FR 28543; E.O. 13498, 74 FR 6533; and E.O. 13559, 75 FR
71319.
Effective Date Note: At 85 FR 82130, Dec. 17, 2020, the part 19
authority citation was
[[Page 190]]
revised, effective Jan. 19, 2021. For the convenience of the user, the
revised text is set forth as follows:
Authority: 5 U.S.C. 301; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C.
101 et seq.); E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258; E.O.
13403, 71 FR 28543, 3 CFR, 2006 Comp., p. 228; E.O. 13498, 74 FR 6533, 3
CFR, 2009 Comp., p. 219; E.O. 13559, 75 FR 71319, 3 CFR, 2010 Comp., p.
273; and E.O. 13831, 83 FR 20715, 3 CFR, 2018 Comp., p. 806; 42 U.S.C.
2000bb et seq.
Source: 81 FR 19410, Apr. 4, 2016, unless otherwise noted.
Sec. 19.1 Purpose.
It is the policy of the Department of Homeland Security (DHS) to
ensure the equal treatment of faith-based organizations in social
service programs administered or supported by DHS or its component
agencies, enabling those organizations to participate in providing
important social services to beneficiaries. The equal treatment policies
and requirements contained in this part are generally applicable to
faith-based organizations participating or seeking to participate in any
such programs. More specific policies and requirements regarding the
participation of faith-based organizations in individual programs may be
provided in the statutes, regulations, or guidance governing those
programs, such as regulations in title 44 of the Code of Federal
Regulations. DHS or its components may issue policy guidance and
reference materials at a future time with respect to the applicability
of this policy and this part to particular programs.
Sec. 19.2 Definitions.
For purposes of this part:
Beneficiary means an individual recipient of goods or services
provided as part of a social service program specifically supported by
Federal financial assistance. ``Beneficiary'' does not mean an
individual who may incidentally benefit from Federal financial
assistance provided to a State, local, or Tribal government, or a
private nonprofit organization. Except where expressly noted or where
inapplicable, ``beneficiary'' includes a prospective beneficiary.
Direct Federal financial assistance or Federal financial assistance
provided directly means that the government or an intermediary (e.g.,
State, local, or Tribal government, or nongovernmental organization)
selects the provider and either purchases services from that provider
(e.g., via a contract) or awards funds to that provider to carry out a
service (e.g., through a grant or cooperative agreement). In general,
Federal financial assistance shall be treated as direct, unless it meets
the definition of ``indirect Federal financial assistance'' or ``Federal
financial assistance provided indirectly''.
Explicitly religious activities include activities that involve
overt religious content such as worship, religious instruction, or
proselytization. An activity is not explicitly religious merely because
it is motivated by religious faith.
Financial assistance means assistance that non-Federal entities
receive or administer in the form of grants, sub-grants, contracts,
subcontracts, prime awards, loans, loan guarantees, property,
cooperative agreements, food, direct appropriations, or other
assistance, including materiel for emergency response and incident
management. Financial assistance includes assistance provided by DHS,
its component organizations, regional offices, and DHS financial
assistance administered by intermediaries such as State, local, and
Tribal governments, such as formula or block grants.
Indirect Federal financial assistance or Federal financial
assistance provided indirectly means that the choice of the service
provider is placed in the hands of the beneficiary, and the cost of that
service is paid through a voucher, certificate, or other similar means
of government-funded payment. For purposes of this part, sub-grant
recipients that receive Federal financial assistance through State-
administered programs are not considered recipients of ``indirect
Federal financial assistance.'' Federal financial assistance provided to
an organization is considered ``indirect'' within the meaning of the
Establishment Clause of the First Amendment to the U.S. Constitution
when:
(1) The government program through which the beneficiary receives
the voucher, certificate, or other similar
[[Page 191]]
means of government-funded payment is neutral toward religion;
(2) The organization receives the assistance as a result of a
decision of the beneficiary, not a decision of the government; and
(3) The beneficiary has at least one adequate secular option for the
use of the voucher, certificate, or other similar means of government-
funded payment.
Intermediary means an entity, including a non-governmental
organization, acting under a contract, grant, or other agreement with
the Federal government or with a State or local government, that accepts
Federal financial assistance and distributes that assistance to other
organizations that, in turn, provide government-funded social services.
If an intermediary, acting under a contract, grant, or other agreement
with the Federal government or with a State or local government that is
administering a program supported by Federal financial assistance, is
given the authority under the contract, grant, or agreement to select
non-governmental organizations to provide services supported by the
Federal government, the intermediary must ensure compliance with the
provisions of Executive Order 13559 and any implementing rules or
guidance by the recipient of a contract, grant or agreement. If the
intermediary is a non-governmental organization, it retains all other
rights of a non-governmental organization under the program's statutory
and regulatory provisions.
Social service program means a program that is administered by the
Federal government, or by a State or local government using Federal
financial assistance, and that provides services directed at reducing
poverty, improving opportunities for low-income children, revitalizing
low-income communities, empowering low-income families and low-income
individuals to become self-sufficient, or otherwise helping people in
need. Such programs include, but are not limited to, the following:
(1) Child care services, protective services for children and
adults, services for children and adults in foster care, adoption
services, services related to the management and maintenance of the
home, day care services for adults, and services to meet the special
needs of children, older individuals, and individuals with disabilities
(including physical, mental, or emotional disabilities);
(2) Transportation services;
(3) Job training and related services, and employment services;
(4) Information, referral, and counseling services;
(5) The preparation and delivery of meals and services related to
soup kitchens or food banks;
(6) Health support services;
(7) Literacy and mentoring programs;
(8) Services for the prevention and treatment of juvenile
delinquency and substance abuse, services for the prevention of crime
and the provision of assistance to the victims and the families of
criminal offenders, and services related to intervention in, and
prevention of, domestic violence; and
(9) Services related to the provision of assistance for housing
under Federal law.
Effective Date Note: At 85 FR 82130, Dec. 17, 2020, Sec. 19.2 was
amended by:
a. Revising the definition of ``Direct Federal financial assistance
or Federal financial assistance provided directly'';
b. In the definition of ``Financial assistance,'' adding a sentence
to the end;
c. Revising the definition of ``Indirect Federal financial
assistance or Federal financial assistance provided indirectly''; and
d. Adding a definition for ``Religious exercise'' in alphabetical
order.
The amendments are effective Jan. 19, 2021. For the convenience of
the user, the added and revised text is set forth as follows:
Sec. 19.2 Definitions.
* * * * *
Direct Federal financial assistance or Federal financial assistance
provided directly means financial assistance received by an entity
selected by the Government or an intermediary (under this part) to carry
out a service (e.g., by contract, grant, or cooperative agreement).
References to ``Federal financial assistance'' will be deemed to be
references to direct Federal financial assistance, unless the referenced
assistance meets the definition of ``indirect Federal financial
assistance'' or ``Federal financial assistance provided indirectly''.
* * * * *
[[Page 192]]
Financial assistance * * * Financial assistance does not include a
tax credit, deduction, exemption, guaranty contract, or the use of any
assistance by any individual who is the ultimate beneficiary under any
such program.
Indirect Federal financial assistance or Federal financial
assistance provided indirectly means financial assistance received by a
service provider when the service provider is paid for services rendered
by means of a voucher, certificate, or other means of government-funded
payment provided to a beneficiary who is able to make a choice of a
service provider. Federal financial assistance provided to an
organization is considered ``indirect'' when:
(1) The government program through which the beneficiary receives
the voucher, certificate, or other similar means of government-funded
payment is neutral toward religion; and
(2) The organization receives the assistance as a result of a
genuine, independent choice of the beneficiary.
* * * * *
Religious exercise has the meaning given to the term in 42 U.S.C.
2000cc-5(7)(A).
* * * * *
Sec. 19.3 Equal ability for faith-based organizations to seek and
receive financial assistance through DHS social service programs.
(a) Faith-based organizations are eligible, on the same basis as any
other organization, to seek and receive direct financial assistance from
DHS for social service programs or to participate in social service
programs administered or financed by DHS.
(b) Neither DHS, nor a State or local government, nor any other
entity that administers any social service program supported by direct
financial assistance from DHS, shall discriminate for or against an
organization on the basis of the organization's religious motivation,
character, or affiliation.
(c) Decisions about awards of Federal financial assistance must be
free from political interference or even the appearance of such
interference and must be made on the basis of merit, not on the basis of
religion or religious belief or lack thereof, or on the basis of
religious or political affiliation.
(d) Nothing in this part shall be construed to preclude DHS or any
of its components from accommodating religious organizations and persons
to the fullest extent consistent with the Constitution and laws of the
United States.
(e) All organizations that participate in DHS social service
programs, including religious organizations, must carry out eligible
activities in accordance with all program requirements and other
applicable requirements governing the conduct of DHS-supported
activities, including those prohibiting the use of direct financial
assistance from DHS to engage in explicitly religious activities. No
grant document, agreement, covenant, memorandum of understanding, or
policy issued by DHS or an intermediary in administering financial
assistance from DHS shall disqualify a religious organization from
participating in DHS's social service programs because such organization
is motivated or influenced by religious faith to provide social services
or because of its religious character or affiliation.
Effective Date Note: At 85 FR 82130, Dec. 17, 2020, Sec. 19.3 was
amended by revising paragraphs (a), (b), and (e) and adding paragraph
(f), effective Jan. 19, 2021. For the convenience of the user, the added
and revised text is set forth as follows:
Sec. 19.3 Equal ability for faith-based organizations to seek and
receive financial assistance through DHS social service
programs.
(a) Faith-based organizations are eligible, on the same basis as any
other organization and considering any religious accommodations
appropriate under the Constitution or other provisions of Federal law,
including but not limited to 42 U.S.C. 2000bb et seq., 42 U.S.C. 238n,
42 U.S.C. 18113, 42 U.S.C. 2000e-1(a) and 2000e-2(e), 42 U.S.C.
12113(d), and the Weldon Amendment, to seek and receive direct financial
assistance from DHS for social service programs or to participate in
social service programs administered or financed by DHS.
(b) Neither DHS, nor a State or local government, nor any other
entity that administers any social service program supported by direct
financial assistance from DHS, shall discriminate for or against an
organization on the basis of the organization's religious motivation,
character, affiliation, or exercise. For purposes of this part, to
discriminate against an organization on the basis of the organization's
religious exercise means to disfavor an organization, including
[[Page 193]]
by failing to select an organization, disqualifying an organization, or
imposing any condition or selection criterion that otherwise disfavors
or penalizes an organization in the selection process or has such an
effect:
(1) Because of conduct that would not be considered grounds to
disfavor a secular organization,
(2) Because of conduct that must or could be granted an appropriate
accommodation in a manner consistent with RFRA (42 U.S.C. 2000bb through
2000bb-4) or the Religion Clauses of the First Amendment to the
Constitution; or
(3) Because of the actual or suspected religious motivation of the
organization's religious exercise.
* * * * *
(e) All organizations that participate in DHS social service
programs, including faith-based organizations, must carry out eligible
activities in accordance with all program requirements, subject to any
reasonable religious accommodation, and other applicable requirements
governing the conduct of DHS-funded activities, including those
prohibiting the use of direct financial assistance from DHS to engage in
explicitly religious activities. No grant document, agreement, covenant,
memorandum of understanding, policy, or regulation that is used by DHS
or an intermediary in administering financial assistance from DHS shall
disqualify a faith-based organization from participating in DHS's social
service programs because such organization is motivated or influenced by
religious faith to provide social services or because of its religious
character or affiliation, or on grounds that discriminate against an
organization on the basis of the organization's religious exercise, as
defined in this part.
(f) No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation used by DHS or an intermediary in
administering financial assistance from DHS shall require faith-based
organizations to provide assurances or notices where they are not
required of non-faith-based organizations. Any restrictions on the use
of grant funds shall apply equally to faith-based and non-faith-based
organizations.
Sec. 19.4 Explicitly religious activities.
(a) Organizations that receive direct financial assistance from DHS
to participate in or administer any social service program may not use
direct Federal financial assistance that it receives (including through
a prime or sub-award) to support or engage in any explicitly religious
activities (including activities that involve overt religious content
such as worship, religious instruction, or proselytization) or in any
other manner prohibited by law.
(b) Organizations receiving direct financial assistance from DHS for
social service programs are free to engage in explicitly religious
activities, but such activities must be
(1) Clearly distinct from programs specifically supported by direct
federal assistance;
(2) Offered separately, in time or location, from the programs,
activities, or services specifically supported by direct DHS financial
assistance pursuant to DHS social service programs; and
(3) Voluntary for the beneficiaries of the programs, activities, or
services specifically supported by direct DHS financial assistance
pursuant to DHS social service programs.
(c) All organizations that participate in DHS social service
programs, including religious organizations, must carry out eligible
activities in accordance with all program requirements and other
applicable requirements governing the conduct of DHS-supported
activities, including those prohibiting the use of direct financial
assistance from DHS to engage in explicitly religious activities. No
grant document, agreement, covenant, memorandum of understanding, or
policy issued by DHS or a State or local government in administering
financial assistance from DHS shall disqualify a religious organization
from participating in DHS's social service programs because such
organization is motivated or influenced by religious faith to provide
social services or because of its religious character or affiliation.
(d) The use of indirect Federal financial assistance is not subject
to the restriction in paragraphs (a), (b), and (c) of this section.
(e) Nothing in this part restricts DHS's authority under applicable
federal law to fund activities, such as the provision of chaplaincy
services, that can be directly funded by the Government consistent with
the Establishment Clause.
Effective Date Note: At 85 FR 82131, Dec. 17, 2020, Sec. 19.4 was
amended by revising paragraphs (b) and (c), effective Jan. 19, 2021. For
[[Page 194]]
the convenience of the user, the revised text is set forth as follows:
Sec. 19.4 Explicitly religious activities.
* * * * *
(b) Organizations receiving direct financial assistance from DHS for
social service programs are free to engage in explicitly religious
activities, but such activities must be offered separately, in time or
location, from the programs or services funded with direct financial
assistance from DHS, and participation must be voluntary for
beneficiaries of the programs or services funded with such assistance.
(c) All organizations that participate in DHS social service
programs, including faith-based organizations, must carry out eligible
activities in accordance with all program requirements, subject to any
religious accommodations appropriate under the Constitution or other
provisions of Federal law, including but not limited to 42 U.S.C. 2000bb
et seq., 42 U.S.C. 238n, 42 U.S.C. 18113, 42 U.S.C. 2000e-1(a) and
2000e-2(e), 42 U.S.C. 12113(d), and the Weldon Amendment, and in
accordance with all other applicable requirements governing the conduct
of DHS-funded activities, including those prohibiting the use of direct
financial assistance from DHS to engage in explicitly religious
activities. No grant document, agreement, covenant, memorandum of
understanding, policy, or regulation that is used by DHS or a State or
local government in administering financial assistance from DHS shall
disqualify a faith-based organization from participating in DHS's social
service programs because such organization is motivated or influenced by
religious faith to provide social services or because of its religious
character or affiliation, or on grounds that discriminate against an
organization on the basis of the organization's religious exercise, as
defined in this part.
* * * * *
Sec. 19.5 Nondiscrimination requirements.
An organization that receives financial assistance from DHS for a
social service program shall not, in providing services or in outreach
activities related to such services, favor or discriminate against a
beneficiary of said program or activity on the basis of religion or
religious belief, a refusal to hold a religious belief, or a refusal to
attend or participate in a religious practice. Organizations that favor
or discriminate against a beneficiary will be subject to applicable
sanctions and penalties, as established by the requirements of the
particular DHS social service program or activity. However, an
organization that participates in a program funded by indirect financial
assistance need not modify its program activities to accommodate a
beneficiary who chooses to expend the indirect aid on the organization's
program.
Effective Date Note: At 85 FR 82131, Dec. 17, 2020, Sec. 19.5 was
amended in the last sentence by removing ``organization's program'' and
adding in its place ``organization's program and may require attendance
at all activities that are fundamental to the program'', effective Jan.
19, 2021.
Sec. 19.6 Beneficiary protections: Written notice.
(a) Faith-based or religious organizations providing social services
to beneficiaries under a DHS program supported by direct Federal
financial assistance must give written notice to beneficiaries of
certain protections. Such notice may be given in the form set forth in
appendix A of this part. This notice must state that:
(1) The organization may not discriminate against beneficiaries on
the basis of religion or religious belief, a refusal to hold a religious
belief, or a refusal to attend or participate in a religious practice;
(2) The organization may not require beneficiaries to attend or
participate in any explicitly religious activities that are offered by
the organization, and any participation by beneficiaries in such
activities must be purely voluntary;
(3) The organization must separate in time or location any privately
funded explicitly religious activities from activities supported by
direct Federal financial assistance;
(4) If a beneficiary objects to the religious character of the
organization, the organization will undertake reasonable efforts to
identify and refer the beneficiary to an alternative provider to which
the beneficiary has no objection; and
(5) Beneficiaries may report an organization's violations of these
protections, including any denials of services
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or benefits by an organization, by contacting or filing a complaint with
the DHS Office for Civil Rights and Civil Liberties, or to any
intermediary awarding entity.
(b) This written notice must be given to beneficiaries prior to the
time they enroll in the program or receive services from such programs.
When the nature of the service provided or exigent circumstances make it
impracticable to provide such written notice in advance of the actual
service, service providers must advise beneficiaries of their
protections at the earliest available opportunity.
Effective Date Note: At 85 FR 82131, Dec. 17, 2020, Sec. 19.6 was
revised, effective Jan. 19, 2021. For the convenience of the user, the
revised text is set forth as follows:
Sec. 19.6 How to prove nonprofit status.
In general, DHS does not require that a recipient, including a
faith-based organization, obtain tax-exempt status under section
501(c)(3) of the Internal Revenue Code to be eligible for funding under
DHS social service programs. Many grant programs, however, do require an
organization to be a nonprofit organization in order to be eligible for
funding. Funding announcements and other grant application solicitations
for social service programs that require organizations to have nonprofit
status will specifically so indicate in the eligibility section of the
solicitation. In addition, any solicitation for social service programs
that requires an organization to maintain tax-exempt status will
expressly state the statutory authority for requiring such status.
Recipients should consult with the appropriate DHS program office to
determine the scope of any applicable requirements. In DHS social
service programs in which an applicant for funding must show that it is
a nonprofit organization, the applicant may do so by any of the
following means:
(a) Proof that the Internal Revenue Service currently recognizes the
applicant as an organization to which contributions are tax deductible
under section 501(c)(3) of the Internal Revenue Code;
(b) A statement from a State or other governmental taxing body or
the State secretary of State certifying that:
(1) The organization is a nonprofit organization operating within
the State; and
(2) No part of its net earnings may benefit any private shareholder
or individual;
(c) A certified copy of the applicant's certificate of incorporation
or similar document that clearly establishes the nonprofit status of the
applicant;
(d) Any item described in paragraphs (a) through (c) of this section
if that item applies to a State or national parent organization,
together with a statement by the State or parent organization that the
applicant is a local nonprofit affiliate; or
(e) For an entity that holds a sincerely held religious belief that
it cannot apply for a determination as an entity that is tax-exempt
under section 501(c)(3) of the Internal Revenue Code, evidence
sufficient to establish that the entity would otherwise qualify as a
nonprofit organization under paragraphs (a) through (d) of this section.
Sec. 19.7 Beneficiary protections: Referral requirements.
(a) If a beneficiary of a social service program covered under Sec.
19.6 objects to the religious character of an organization that provides
services under the program, that organization must promptly undertake
reasonable efforts to identify and refer the beneficiary to an
alternative provider to which the beneficiary has no objection.
(b) A referral may be made to another religiously affiliated
provider, if the beneficiary has no objection to that provider. But if
the beneficiary requests a secular provider, and a secular provider is
available, then a referral must be made to that provider.
(c) Except for services provided by telephone, internet, or similar
means, the referral must be to an alternative provider that is in
reasonable geographic proximity to the organization making the referral
and that offers services that are similar in substance and quality to
those offered by the organization. The alternative provider also must
have the capacity to accept additional clients.
(d) When the organization makes a referral to an alternative
provider, it shall keep a record of that referral. If the organization
determines that it is unable to identify an alternative provider, the
organization shall both keep a record and promptly notify either DHS or
an intermediary awarding entity. If the organization is unable to
identify an alternative provider, DHS or the intermediary shall
determine whether there is any other suitable alternative provider to
which the beneficiary may be referred. An intermediary that receives a
request for assistance in identifying an alternative
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provider shall notify, and may request assistance from, DHS.
Effective Date Note: At 85 FR 82131, Dec. 17, 2020, Sec. 19.7 was
removed and reserved, effective Jan. 19, 2021.