[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]
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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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