[Federal Register Volume 75, Number 35 (Tuesday, February 23, 2010)]
[Proposed Rules]
[Pages 7978-7979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3360]


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

  Federal Register / Vol. 75, No. 35 / Tuesday, February 23, 2010 / 
Proposed Rules  

[[Page 7978]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0137]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security Transportation Security Administration-023 Workplace 
Violence Prevention Program System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the Department of Homeland Security Transportation 
Security Administration-023 Workplace Violence Prevention Program 
System of Records and this proposed rulemaking. In this proposed 
rulemaking, the Department proposes to exempt portions of the system of 
records from one or more provisions of the Privacy Act because of 
criminal, civil, and administrative enforcement requirements.

DATES: Comments must be received on or before March 25, 2010.

ADDRESSES: You may submit comments, identified by docket number DHS-
2009-0137, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 703-483-2999.
     Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Peter Pietra ([email protected]), Director, Privacy Policy & 
Compliance, TSA-036, Transportation Security Administration, 601 South 
12th Street, Arlington, VA 20598-6036. For privacy issues please 
contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, 
Privacy Office, U.S. Department of Homeland Security, Washington, DC 
20528.

SUPPLEMENTARY INFORMATION:

Background

    The Department of Homeland Security (DHS) Transportation Security 
Administration (TSA) is establishing a new system of records under the 
Privacy Act (5 U.S.C. 552a) titled, DHS/TSA-023 Workplace Violence 
Prevention Program System of Records. The system will cover records 
regarding current and former employees and contractors of TSA and 
members of the public who have been involved in workplace violence at 
TSA facilities, or while on or because of their official duty, or who 
are being or have been assisted or counseled by the TSA Workplace 
Violence Prevention Program. Records include acts, remarks, or gestures 
that communicate a threat of harm or otherwise cause concern for the 
safety of any individual at TSA facilities or while on or because of 
their official duty. These records may include identifying information, 
information documenting workplace violence, and actions taken by the 
Workplace Violence Prevention Program or TSA. The program provides 
oversight and management of potential or actual incidents of violence 
in the workplace. It provides assistance to affected individuals, 
guidance on prevention and response to workplace violence, analyzes 
data as needed, and provides training.
    The Secretary of Homeland Security has exempted this system from 
the notification, access, and amendment procedures of the Privacy Act 
because it is a law enforcement system.
    The Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States Government 
collects, maintains, uses, and disseminates personally identifiable 
information. The Privacy Act applies to information that is maintained 
in a ``system of records.'' A ``system of records'' is a group of any 
records under the control of an agency from which information is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. 
Individuals may request their own records that are maintained in a 
system of records in the possession or under the control of DHS by 
complying with DHS Privacy Act regulations, 6 CFR part 5.
    The Privacy Act requires each agency to publish in the Federal 
Register a description of the type and character of each system of 
records that the agency maintains, and the routine uses that are 
contained in each system in order to make agency recordkeeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals in finding such files within the agency.
    The Privacy Act allows Government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/TSA-023 Workplace Violence Prevention Program System of 
Records. Some information in DHS/TSA-023 Workplace Violence Prevention 
Program System of Records relates to official DHS law enforcement. 
These exemptions are needed to protect information relating to DHS 
activities from disclosure to subjects or others related to these 
activities. Specifically, the exemptions are required to preclude 
subjects of these activities from frustrating these processes; to 
protect the identities and physical safety of confidential informants 
and law enforcement personnel; to ensure DHS' ability to obtain 
information from third parties and other sources; to protect the 
privacy of third parties. Disclosure of information to the subject of 
the inquiry could also permit the subject to avoid detection or 
apprehension.
    The exemptions proposed here are standard law enforcement and 
national

[[Page 7979]]

security exemptions exercised by a large number of federal law 
enforcement and intelligence agencies. In appropriate circumstances, 
where compliance would not appear to interfere with or adversely affect 
the law enforcement purposes of this system and the overall law 
enforcement process, the applicable exemptions may be waived on a case 
by case basis.
    A notice of system of records titled, DHS/TSA-023 Workplace 
Violence Prevention Program System of Records is also published in this 
issue of the Federal Register.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

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

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

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


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

    2. Add at the end of Appendix C to Part 5, the following new 
paragraph ``48'':

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

* * * * *
    48. The DHS/TSA-023 Workplace Violence Prevention Program System 
of Records consists of electronic and paper records and will be used 
by the Transportation Security Administration. The DHS/TSA-023 
Workplace Violence Prevention 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 there under. The DHS/TSA-023 Workplace 
Violence Prevention 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 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 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.

    Dated: February 1, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2010-3360 Filed 2-22-10; 8:45 am]
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