[Federal Register Volume 79, Number 98 (Wednesday, May 21, 2014)]
[Rules and Regulations]
[Pages 29072-29074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11433]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2011-0033]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/National Protection and Programs Directorate--002
Chemical Facility Anti-Terrorism Standards Personnel Surety Program
System of Records
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security is issuing a final rule to
amend its regulations to exempt portions of a newly established system
of records titled, ``Department of Homeland Security/National
Protection and Programs Directorate--002 Chemical Facility Anti-
Terrorism Standards Personnel Surety Program System of Records'' from
certain provisions of the Privacy Act. Specifically, the Department
exempts portions of the ``Department of Homeland Security/National
Protection and Programs Directorate--002 Chemical Facility Anti-
Terrorism Standards Personnel Surety Program System of Records'' from
one or more provisions of the Privacy Act because of criminal, civil,
and administrative enforcement requirements.
DATES: Effective Date: This final rule is effective May 21, 2014.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Emily Andrew (703) 235-2182, Senior Privacy Officer, National
Protection and Programs Directorate, Department of Homeland Security,
Washington, DC 20528. For privacy issues please contact: Karen L.
Neuman (202) 343-1717, Chief Privacy Officer, Privacy Office,
Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland Security (DHS) National Protection and
Programs Directorate (NPPD) published a notice of proposed rulemaking
in the Federal Register, 76 FR 34616, on June 14, 2011, proposing 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. The system of records is the DHS/NPPD--002
Chemical Facility Anti-Terrorism Standards Personnel Surety Program
System of Records. The DHS/NPPD--002 Chemical Facility Anti-Terrorism
Standards Personnel Surety Program system of records notice (SORN) was
published concurrently in the Federal Register, 76 FR 34732, June 14,
2011, and comments were invited on both the notice of proposed
rulemaking (NPRM) and SORN.
Public Comments
DHS received three comments on the NPRM and one comment on the
SORN. Comments on the NPRM and the SORN are outlined below, followed by
the Department's responses.
DHS also received a comment in the public docket for the SORN
(Document DHS-2011-0032-0003), which addressed the Chemical Facility
Anti-Terrorism Standards (CFATS) Personnel Surety Program Information
Collection Request (Docket DHS-2009-0026) and other aspects of the
Personnel Surety Program, but did not address the SORN, the NPRM, or
privacy issues. DHS reviewed that comment, and responded to it in a
Federal Register notice, 78 FR 17680, March 22, 2013.
NPRM
Comment: One commenter suggested that the Department did not make
``a good faith effort to provide the public with specific reasons or
requirements'' to justify Privacy Act exemptions. For this reason the
commenter opposed DHS's proposed exemptions.
Response: The Department believes that it provided adequate
justification to support the Privacy Act exemptions described in the
NPRM. These exemptions are needed to protect the information (i.e.,
categories of records) listed in the SORN from disclosure to subjects
or others related to the vetting activities described in the SORN.
Specifically, the exemptions are required to preclude subjects of the
CFATS Personnel Surety Program's vetting activities from frustrating
these vetting activities; to avoid disclosure of vetting activity
techniques; to protect the identities and physical safety of
confidential informants and law enforcement personnel; to ensure the
Department's ability to obtain information from third parties and other
sources; to protect the privacy of third parties; to safeguard
classified information; to safeguard records; and for other reasons
discussed in the NPRM. Disclosure of information about persons vetted
under the CFATS Personnel Surety Program to those persons could also
permit them 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.
Comment: A commenter is pleased that third-party individuals may be
designated to act on behalf of facilities as ``Submitters'' under the
CFATS Personnel Surety Program, and seeks clarification on how this
will be accomplished. Specifically, the commenter sought clarification
from DHS on two points: (a) ``any security or information protection
requirements that may be required to serve as a `Submitter' in light of
the potential Privacy Act exemption DHS currently seeks and may
receive''; and (b) the mechanics of ``[h]ow, specifically, authorized
third parties will serve as a facility's agent for elements of TSDB
compliance[.]''
Response: The Department does not currently envision any additional
or new security or information protection
[[Page 29073]]
requirements that will apply to Submitters in light of the Privacy Act
exemptions that are the subject of this rulemaking. The Department will
publish a user manual when the CFATS Personnel Surety Program is
implemented, discussing how different users can access and use the Web
portal that the Department intends to establish for the CFATS Personnel
Surety Program.
Comment: A commenter stated that the Department's proposal does
``comply with the Privacy Act or follow the corresponding lawful and
reasonable exemptions provided in this case by the corresponding
Department of Homeland Security Appropriations Act of 2007.'' The
commenter also expressed concerns relating to: (a) The length of time
it will take the government to conduct screening, and the number of
government entities involved in screening; (b) the scope of information
being requested and the resulting burden on high-risk chemical
facilities; and (c) the duplication involved for those individuals who
have already been vetted against the Terrorist Screening Database
(TSDB) as part of other government screening programs. The commenter
was in favor of the proposed exemptions from portions of the Privacy
Act.
Response: The commenter's concerns about the screening procedure,
the scope of information requested, and duplicative screening efforts
and recommendations are outside the scope of the SORN and this Privacy
Act exemptions rulemaking. Nevertheless, the Department addressed the
commenter's other concerns in a Federal Register notice that solicited
comments about the CFATS Personnel Surety Program Information
Collection Request, 78 FR 17680, March 22, 2013.
SORN
Comment: One commenter asked whether or not individuals with
national security clearances, individuals with access to restricted
areas under the U.S. Army's Chemical Personnel Reliability Program
(CPRP), or individuals processed by ``the DHS suitability program''
could be exempted from the TSDB vetting requirements of the Personnel
Surety Program.
Response: Whether an individual (or category of individuals) could
be exempted from the CFATS Personnel Surety Program is not within the
scope of the SORN or this Privacy Act exemptions rulemaking. DHS's
responses to comments in this document are limited to addressing the
SORN for the Personnel Surety Program, and to Privacy Act exemptions
related to the collection and disclosure of information under the
Personnel Surety Program Systems of Records.
After considering public comments, the Department will implement
the rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
For the reasons stated in the preamble, Chapter I of Title 6, Code
of Federal Regulations, is amended as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
0
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.
0
2. Add at the end of Appendix C to part 5, the following new paragraph
``73'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
73. The DHS/NPPD--002 Chemical Facility Anti-Terrorism Standards
Personnel Surety Program System of Records consists of electronic
and paper records and will be used by DHS and its components. The
DHS/NPPD--002 Chemical Facility Anti-Terrorism Standards Personnel
Surety 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
thereunder; and national security and intelligence activities. The
DHS/NPPD--002 Chemical Facility Anti-Terrorism Standards Personnel
Surety 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 this system from the following
provisions of the Privacy Act, subject to limitations set forth
therein: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I); and (f). These exemptions are made pursuant to 5 U.S.C.
552a(k)(1) and (k)(2).
In addition to records under the control of DHS, the DHS/NPPD--
002 Chemical Facility Anti-Terrorism Standards Personnel Surety
Program System of Records may include records originating from
systems of records of other law enforcement and intelligence
agencies, which may be exempt from certain provisions of the Privacy
Act. DHS does not, however, assert exemption from any provisions of
the Privacy Act with respect to information submitted by high-risk
chemical facilities.
To the extent the DHS/NPPD--002 Chemical Facility Anti-Terrorism
Standards Personnel Surety Program System of Records contains
records originating from other systems of records, DHS will rely on
the exemptions claimed for those records in the originating systems
of records. 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
[[Page 29074]]
themselves in the system would undermine investigative efforts and
reveal the identities of witnesses, potential witnesses, and
confidential informants.
Dated: May 1, 2014.
Karen L. Neuman,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2014-11433 Filed 5-20-14; 8:45 am]
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