[Federal Register Volume 75, Number 219 (Monday, November 15, 2010)]
[Proposed Rules]
[Pages 69604-69606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28572]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2010-0053]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security Office of Operations Coordination and Planning--003
Operations Collection, Planning, Coordination, Reporting, Analysis, and
Fusion 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 Office of
Operations Coordination and Planning--003 Operations Collection,
Planning, Coordination, Reporting, Analysis, and Fusion 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-
2010-0053, 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:
Michael Page (202-357-7626), Privacy Point of Contact, Office of
Operations Coordination and Planning, Department of Homeland Security,
Washington, DC 20528. For privacy issues please contact: Mary Ellen
Callahan (703-235-
[[Page 69605]]
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)
Office of Operations Coordination and Planning (OPS), including the
National Operations Center (NOC), proposes to establish a new DHS
system of records titled, ``DHS/OPS--003 Operations Collection,
Planning, Coordination, Reporting, Analysis, and Fusion System of
Records.''
This system of records will allow DHS/OPS, including the NOC, to
collect, plan, coordinate, report, analyze, and fuse 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 Department.
OPS serves as a joint operations coordination and planning
capability at the strategic level to support internal DHS operational
decision making, DHS leadership, and participation in interagency
operations. OPS integrates DHS and interagency planning and operations
coordination in order to prevent, protect, and respond to and recover
from all-threats and all-hazards, man-made disasters and acts of
terrorism, and natural disasters.
The NOC serves as the nation's homeland security center for
information sharing and domestic incident management, dramatically
increasing coordination between 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. The NOC collects
and fuses information from a variety of sources everyday to help deter,
detect, and prevent terrorist acts as well as to prepare for, respond
to, and recover from all-threats and all-hazards, man-made disasters
and acts of terrorism, and natural disasters. Operating 24 hours a day,
seven days a week, 365 days a year, the NOC provides real-time
situational awareness and monitoring of the homeland, coordinates
incident and response activities, and, in conjunction with other DHS
components, issues advisories and bulletins concerning threats to
homeland security, including natural disasters, as well as specific
protective measures. Information on domestic incident management is
shared with state Fusion Centers and Emergency Operations Centers (EOC)
at all levels through Watch Officer Desks located in the NOC.
The purpose of this system is to:
1. Collect, plan, coordinate, and analyze 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; and
2. Report, integrate, and fuse such information throughout DHS in
order to share information, increase coordination, identify and assess
the nature and scope of information and understand risks in light of
potential or actual vulnerabilities to the homeland; and help deter,
detect, and prevent terrorist acts as well as to prepare for, respond
to, and recover from all-threats and all-hazards, man-made disasters
and acts of terrorism, and natural disasters.
DHS is authorized to implement this program primarily through 5
U.S.C. 301, 552, 552a; 44 U.S.C. 3101; 6 U.S.C. 121; Sec. Sec. 201 and
514 of the Homeland Security Act of 2002, as amended; Sec. 520 of the
Post Katrina Emergency Management Reform Act; 44 U.S.C. 3101; Executive
Order (E.O.) 12958; E.O. 9397; E.O. 12333; E.O. 13356; E.O. 13388; and
Homeland Security Presidential Directive 5. This system has an effect
on individual privacy that is balanced by the need to collect, plan,
coordinate, report, analyze, and fuse homeland security information
coming into and going out of OPS, including 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 privacy sector in their role aiding OPS in their
mission; to agencies, organizations or individuals for the purpose of
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).
Consistent with DHS's information sharing mission, information
contained in the DHS/OPS--003 Collection, Planning, Coordination,
Reporting, Analysis, and Fusion 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 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).
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
[[Page 69606]]
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/OPS--003 Operations Collection, Planning, Coordination,
Reporting, Analysis, and Fusion System of Records. Some information in
DHS/OPS--003 Operations Collection, Planning, Coordination, Reporting,
Analysis, and Fusion System of Records relates to official DHS national
security, law enforcement, immigration, and intelligence activities.
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 avoid
disclosure of activity techniques; 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; and
to safeguard classified information. 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 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.
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 ``53'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
53. 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/
OPS. The DHS/OPS--003 Operations Collection, Planning, Coordination,
Reporting, Analysis, and Fusion 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/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.
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. 2010-28572 Filed 11-12-10; 8:45 am]
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