[Federal Register Volume 73, Number 190 (Tuesday, September 30, 2008)]
[Rules and Regulations]
[Pages 56922-56924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22603]

[[Page 56921]]


Part II

Department of Homeland Security


6 CFR Part 5

Privacy Act of 1974: Implementation of Exemptions; System of Records; 
Final Rules and Notice

Federal Register / Vol. 73, No. 190 / Tuesday, September 30, 2008 / 
Rules and Regulations

[[Page 56922]]



Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2008-0090]

Privacy Act of 1974: Implementation of Exemptions; Privacy Act; 
Office of Intelligence and Analysis Enterprise Records System

AGENCY: Privacy Office, DHS.

ACTION: Final rule.


SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of a new system of records 
entitled the ``Office of Intelligence and Analysis (I&A) Enterprise 
Records System (ERS)'' from certain provisions of the Privacy Act. 
Specifically, the Department exempts portions of the ERS system from 
one or more provisions of the Privacy Act because of criminal, civil, 
and administrative enforcement requirements.

DATES: Effective Date: This final rule is effective September 30, 2008.

FOR FURTHER INFORMATION CONTACT: For general questions, please contact 
the Information Sharing and Knowledge Management Division, Office of 
Intelligence and Analysis, Department of Homeland Security, Washington, 
DC 20528. For privacy issues, please contact: Hugo Teufel III, Chief 
Privacy Officer, Department of Homeland Security, Washington, DC 20528.



    The Department of Homeland Security (DHS) published a notice of 
proposed rulemaking in the Federal Register, 73 FR 28060, May 15, 2008, 
proposing to exempt portions of the system of records from one or more 
provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements. The system of records is the 
Office of Intelligence and Analysis Enterprise Records System (ERS). 
The ERS system of records notice was published concurrently in the 
Federal Register, 73 FR 28128, May 15, 2008, and comments were invited 
on both the proposed rule and SORN. No comments were received.
    Pursuant to the requirements of the Regulatory Flexibility Act, 5 
U.S.C. 601-612, DHS certifies that these regulations will not 
significantly affect a substantial number of small entities. The final 
rule imposes no duties or obligations on small entities. Further, in 
accordance with the provisions of the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501, DHS has determined that this final rule would not 
impose new record keeping, application, reporting, or other types of 
information collection requirements.

Public Comments

    I&A received no comments on the system of records notice and notice 
of proposed rulemaking. I&A will implement the rulemaking as proposed.

Regulatory Requirements

A. Regulatory Impact Analyses

    Changes to Federal regulations must undergo several analyses. In 
conducting these analyses, DHS has determined:
1. Executive Order 12866 Assessment
    This rule is not a significant regulatory action under Executive 
Order 12866, ``Regulatory Planning and Review'' (as amended). 
Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB). Nevertheless, DHS has reviewed this 
rulemaking, and concluded that there will not be any significant 
economic impact.
2. Regulatory Flexibility Act Assessment
    Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5 
U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement 
and Fairness Act of 1996 (SBREFA), DHS certifies that this rule will 
not have a significant impact on a substantial number of small 
entities. The rule would impose no duties or obligations on small 
entities. Further, the exemptions to the Privacy Act apply to 
individuals, and individuals are not covered entities under the RFA.
3. International Trade Impact Assessment
    This rulemaking will not constitute a barrier to international 
trade. The exemptions relate to criminal investigations and agency 
documentation and, therefore, do not create any new costs or barriers 
to trade.
4. Unfunded Mandates Assessment
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub. 
L. 104-4, 109 Stat. 48), requires Federal agencies to assess the 
effects of certain regulatory actions on State, local, and tribal 
governments, and the private sector. This rulemaking will not impose an 
unfunded mandate on State, local, or tribal governments, or on the 
private sector.

B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that DHS consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA section 3507(d), obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. DHS has determined 
that there are no current or new information collection requirements 
associated with this rule.

C. Executive Order 13132, Federalism

    This action will not have a substantial direct effect on the 
States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, and therefore will not have federalism 

D. Environmental Analysis

    DHS has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has 
determined that this action will not have a significant effect on the 
human environment.

E. Energy Impact

    The energy impact of this action has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163, 
as amended (42 U.S.C. 6362). This rulemaking is not a major regulatory 
action under the provisions of the EPCA.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

For the reasons stated in the preamble, DHS amends Chapter I of Title 
6, Code of Federal Regulations, as follows:


1. The authority citation for Part 5 continues to read as follows:

    Authority: Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et 
seq.; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.

2. At the end of Appendix C to Part 5, add the following new paragraph 
7 to read as follows:

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

* * * * *
    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

[[Page 56923]]

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 of this system, the applicable exemption may be waived by 
    (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 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

[[Page 56924]]

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.

Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-22603 Filed 9-29-08; 8:45 am]