[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Proposed Rules]
[Pages 60387-60388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24935]



[[Page 60387]]

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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0091]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security Federal Emergency Management Agency-012 Suspicious 
Activity Reporting 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/Federal Emergency 
Management Agency-012 Suspicious Activity Reporting 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 October 31, 2011.

ADDRESSES: You may submit comments, identified by docket number DHS-
2011-0091, 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 rulemaking. 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.
    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: 
Dr. Lesia Banks, (202-646-3323), Acting Privacy Officer, Federal 
Emergency Management Agency, Department of Homeland Security, 
Washington, DC 20478. 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:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) Federal Emergency Management 
Agency (FEMA) proposes to establish a new DHS/FEMA system of records 
titled, ``DHS/FEMA-012 Suspicious Activity Reporting System of 
Records.''
    FEMA's mission is to ``support our citizens and first responders to 
ensure that as a nation we work together to build, sustain, and improve 
our capability to prepare for, protect against, respond to, recover 
from, and mitigate all hazards.'' FEMA will collect, maintain, and 
retrieve records on individuals who report suspicious activities, 
individuals reported as being involved in suspicious activities, and 
individuals charged with the analysis and appropriate handling of 
suspicious activity reports. FEMA's Office of the Chief Security 
Officer (OCSO), Fraud and Investigations Unit, manages this process. To 
reduce any risk of unauthorized access, FEMA SARs are secured in a room 
monitored by FEMA OCSO special agents and analysts.
    FEMA SARs may shared with federal, state, local, and tribal 
jurisdictions that hold the responsibility of investigating suspicious 
activities within their jurisdictions. FEMA SARs that do not have a 
nexus to terrorism or hazards to homeland security, as determined by 
FEMA OCSO special agents or analysts, are forwarded to the appropriate 
jurisdiction, such as sheriff offices, county/city police, and state 
police. FEMA SARs that have a nexus to terrorism or hazards to homeland 
security, as determined by FEMA OCSO special agents or analysts, are 
shared with the Federal Bureau of Investigations (FBI) Joint Terrorism 
Task Force (JTTF), Federal Protective Service, and/or other federal 
agencies required to investigate and respond to terrorist threats or 
hazards to homeland security.
    FEMA's SAR process is authorized and governed by 44 CFR Chapter 2 
``Delegation of Authority;'' 42 U.S.C. 5196(d); Executive Orders 12333 
and 13388; 40 U.S.C. 1315(b)(2)(F); 6 U.S.C. 314; The Homeland Security 
Act of 2002, as amended; the Intelligence Reform and Terrorism 
Prevention Act of 2004, as amended; the National Security Act of 1947, 
as amended; and FEMA Manual 1010-1 ``Federal Emergency Management 
Agency Missions and Functions.''
    Consistent with DHS's information sharing mission, information 
stored in the DHS/FEMA-012 Suspicious Activity Reporting 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 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.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which the U.S. 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. In 
the Privacy Act, an individual is defined to encompass U.S. citizens 
and lawful permanent residents. As a matter of policy, DHS extends 
administrative Privacy Act protections to all individuals where systems 
of records maintain information on U.S. citizens, lawful permanent 
residents, and visitors.
    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 the DHS/FEMA-012 Suspicious Activity Reporting System of 
Records. Some information in the DHS/FEMA-012 Suspicious Activity 
Reporting System of Records relates to official DHS national security, 
law enforcement, and intelligence activities. These exemptions are 
needed to protect information relating to DHS activities

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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.
    A notice of system of records for DHS/FEMA-012 Suspicious Activity 
Reporting 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: 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. 
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 ``60'':

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

* * * * *
    60. The DHS/FEMA-012 Suspicious Activity Reporting System of 
Records consists of electronic and paper records and will be used by 
DHS and its components. The DHS/FEMA-012 Suspicious Activity 
Reporting 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; and national security and intelligence activities. The DHS/
FEMA-012 Suspicious Activity Reporting 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 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)(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 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.
    (f) 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: September 9, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2011-24935 Filed 9-28-11; 8:45 am]
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