[Federal Register Volume 75, Number 219 (Monday, November 15, 2010)]
[Proposed Rules]
[Pages 69603-69604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28569]


 ========================================================================
 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. 219 / Monday, November 15, 2010 / 
Proposed Rules  

[[Page 69603]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2010-0085]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security National Protection and Programs Directorate--001 
National Infrastructure Coordinating Center Records 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 National Protection 
and Programs Directorate--001 National Infrastructure Coordinating 
Center Records 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 December 15, 2010.

ADDRESSES: You may submit comments, identified by docket number DHS-
2010-0085, 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: 
Emily Andrew (703-235-2182), Privacy Officer, National Protection and 
Programs Directorate, Department of Homeland Security, Washington, DC 
20528. For privacy issues please contact: Mary Ellen Callahan (703-235-
0780), Chief Privacy Officer, Privacy Office, Department of Homeland 
Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) National Protection and Programs 
Directorate (NPPD) proposes to establish a new DHS system of records 
titled, ``DHS/NPPD--001 National Infrastructure Coordinating Center 
(NICC) Records System of Records.''
    This system of records will allow DHS/NPPD, including the NICC (an 
extension of the National Operations Center (NOC)) to collect, plan, 
coordinate, report, analyze, and fuse infrastructure information 
related to all-threats and all-hazards, law enforcement activities, 
intelligence activities, man-made disasters and acts of terrorism, 
natural disasters, and other information collected or received from 
Federal, State, local, tribal, and territorial agencies and 
organizations; foreign governments and international organizations; 
domestic security and emergency management officials; and private 
sector entities or individuals into the NICC.
    The NICC provides the mission and capabilities to assess the 
operational status of the Nation's 18 critical infrastructures and key 
resources (CIKR) sectors during normal operations and incident 
management activities, supports information sharing with National 
Infrastructure Protection Plan (NIPP) partners, and owners and 
operators of critical infrastructure facilities, and facilitates 
information sharing across and between the 18 national sectors.
    The NICC is both an operational component of the NPPD Office of 
Infrastructure Protection (IP) and a watch operations element of the 
DHS NOC. The NICC operates 24 hours a day, 7 days a week, 365 days a 
year to facilitate coordination and information sharing with the CIKR 
sectors. The NICC produces consolidated CIKR reports for incorporation 
into situational awareness reports and for inclusion into the common 
operating picture.
    DHS is authorized to implement this program primarily through the 
Homeland Security Act of 2002 as codified within 6 U.S.C. 321d(b)(1), 
515. This system has an effect on individual privacy that is balanced 
by the need to collect, plan, coordinate, report, analyze, and fuse 
CIKR information coming into and going out of the NICC as well as the 
NOC. Routine uses contained in this notice include sharing with the 
Department of Justice (DOJ) for legal advice and representation; to a 
congressional office at the request of an individual; to the National 
Archives and Records Administration (NARA) for records management; to 
contractors in support of their contract assignment to DHS; to 
appropriate Federal, State, tribal, local, international, foreign 
agency, or other appropriate entity including the private sector in 
their role aiding the NICC in their mission; to agencies, organizations 
or individuals for the purpose of an audit; to agencies, entities, or 
persons during a security or information compromise or breach; to an 
agency, organization, or individual when there could potentially be a 
risk of harm to an individual; and to the news media in the interest of 
the public. A review of this system is being conducted to determine if 
the system of records collects information under the Paperwork 
Reduction Act (PRA).
    Based on the information contained within this system of records, 
the NICC develops reports that are shared both within DHS and with the 
CIKR sectors. The NICC creates two reports, one with PII and one 
without. The one without PII is what is shared broadly with the CIKR 
sectors as well as the State and local fusion centers. Consistent with 
DHS's information sharing mission, information contained in the DHS/
NPPD--001 NICC Records System of Records may be shared with other DHS 
components, as well as appropriate Federal, State, local, tribal, 
territorial, foreign, or international government agencies. This 
sharing will only take

[[Page 69604]]

place after DHS determines that the receiving component or agency has a 
verifiable need to know the information to carry out national security, 
law enforcement, immigration, intelligence, or other functions 
consistent with the routine uses set forth in this system of records 
notice.
    The information within this system that meets the functional 
standard of the National Suspicious Activity Reporting Initiative will 
be placed into the DHS/ALL--031 Information Sharing Environment 
Suspicious Activity Reporting Initiative (September 10, 2010, 75 FR 
55335).

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 ``52'':

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

* * * * *
    52. The DHS/NPPD--001NICC Records System of Records consists of 
electronic and paper records and will be used by DHS/NPPD/NICC. The 
DHS/NPPD--001NICC 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. The DHS/NPPD--001NICC 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 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: November 5, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-28569 Filed 11-12-10; 8:45 am]
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