[Federal Register Volume 81, Number 66 (Wednesday, April 6, 2016)]
[Rules and Regulations]
[Pages 19857-19858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07896]



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  Federal Register / Vol. 81, No. 66 / Wednesday, April 6, 2016 / Rules 
and Regulations  

[[Page 19857]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2016-0025]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL-030 Use of the Terrorist Screening Database 
System of Records

AGENCY: Privacy Office, Department of Homeland Security.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS) is issuing a final 
rule to amend its regulations to exempt portions of an existing system 
of records titled, ``Department of Homeland Security/ALL-030 Use of the 
Terrorist Screening Database System of Records'' from certain 
provisions of the Privacy Act. Specifically, the Department exempts 
portions of the ``Department of Homeland Security/ALL-030 Use of the 
Terrorist Screening Database System of Records'' from one or more 
provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements.

DATES: This final rule is effective April 6, 2016.

FOR FURTHER INFORMATION CONTACT: Karen L. Neuman, (202) 343-1717, Chief 
Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    The Department of Homeland Security (DHS) published a notice of 
proposed rulemaking in the Federal Register at 81 FR 3758, on January 
22, 2016, 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. DHS issued the ``Department of 
Homeland Security/ALL-030 Use of the Terrorist Screening Database 
System of Records'' in the Federal Register at 81 FR 3811 on January 
22, 2016, to provide notice to the public that DHS was adding two new 
consumers to the ``DHS Watchlist Service.'' DHS also clarified an 
existing category of individuals, added two new categories of 
individuals, and clarified the categories of records maintained in this 
system. DHS invited comments on both the Notice of Proposed Rulemaking 
(NPRM) and System of Records Notice (SORN).

II. Public Comments

    DHS received three comments. Two comments were from private 
individuals who complemented DHS for this update. DHS received an 
identical comment from a public interest research center on the SORN 
and NPRM. The commenter raised concerns regarding the number of 
exemptions taken by DHS, particularly exemptions related to access and 
accounting for disclosures. Specifically, the commenter questioned the 
need to exempt records once an investigation was complete.
    In response, DHS emphasizes that the Terrorist Screening Database 
(TSDB) belongs to the Department of Justice (DOJ)/Federal Bureau of 
Investigation (FBI). DHS does not change or alter these records. All 
records within the DHS/ALL-030 Use of the Terrorist Screening Database 
System of Records are collected and disseminated by the DOJ/FBI and are 
covered by the DOJ/FBI-019, ``Terrorist Screening Records Center 
System,'' 72 FR 77846 (Dec. 14, 2011). Because DHS does not make any 
changes to the records obtained from DOJ/FBI, the same exemptions 
outlined in the DOJ/FBI SORN, and reasons provided in its implementing 
regulations for use of such exemptions at 28 CFR 16.96, transfer and 
apply. For instance, disclosing this information to individuals who 
have been misidentified as known or suspected terrorists due to a close 
name similarity, and of which the investigation has been completed, 
could reveal the Government's investigative interest in a terrorist 
suspect for an ongoing investigation, because it could make known the 
name of the individual who actually is the subject of the Government's 
interest. Similarly, providing any type of notice to a misidentified 
known or suspected terrorist due to a close name similarity could alert 
the actual known or suspected terrorist of the Government's 
investigative interest in that individual. Further, amendment of these 
records would impose an impossible administrative burden by requiring 
investigations, analyses, and reports to be continuously reinvestigated 
and revised. DHS is not taking any new exemptions as a result of the 
expansion to the categories of individuals in the TSDB. As noted in the 
NPRM, permitting access and amendment to watchlist records could 
disclose sensitive information that could be detrimental to national 
security. Release of the accounting of disclosures could reveal the 
details of watchlist matching measures, as well as capabilities and 
vulnerabilities of the watchlist matching process, the release of which 
could permit an individual to evade future detection and thereby impede 
efforts to ensure national security.
    However, DHS does agree that some of the exemptions proposed in the 
NPRM are unnecessary. With the publication of this Final Rule, DHS is 
removing the exemption from subsections 5 U.S.C. 552a(e)(4)(G), 
(e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules), 
because DHS has already established requirements, rules, or procedures 
with respect to individual access and will review each request for 
access on a case-by-case basis. Concurrent with this Final Rule, DHS is 
republishing the DHS/ALL-030 Use of the Terrorist Screening Database 
System of Records to reflect this change.

List of Subjects in 6 CFR Part 5

    Freedom of information, Privacy.

    For the reasons stated in the preamble, DHS amends chapter I of 
title 6, Code of Federal Regulations, as follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

0
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.


[[Page 19858]]



0
2. In appendix C to part 5, revise paragraph 66 to read as follows:

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

* * * * *
0
66. The DHS/ALL-030 Use of the Terrorist Screening Database System of 
Records consists of electronic and paper records and will be used by 
DHS and its Components. The DHS/ALL-030 Use of the Terrorist Screening 
Database System of Records is a repository of information held by DHS 
in connection with its several and varied missions and functions, 
including, the enforcement of civil and criminal laws; investigations, 
inquiries, and proceedings thereunder; and national security and 
intelligence activities. The Terrorist Screening Database belongs to 
the Department of Justice (DOJ)/Federal Bureau of Investigation (FBI). 
DHS does not change or alter these records. All records within the DHS/
ALL-030 Use of the Terrorist Screening Database System of Records are 
collected and disseminated by the DOJ/FBI and are covered by the DOJ/
FBI-019, ``Terrorist Screening Records Center System,'' 72 FR 77846 
(Dec. 14, 2011). Because DHS does not make any changes to the records 
obtained from DOJ/FBI, the same exemptions outlined in the DOJ/FBI 
SORN, and reasons provided in its implementing regulations for use of 
such exemptions at 28 CFR 16.96, transfer and apply. The Secretary of 
Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted this 
system from the following provisions of the Privacy Act: 5 U.S.C. 
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(5), (e)(8), and 
(g). When a record has been received from DOJ/FBI-019 Terrorist 
Screening Records System of Records and has been exempted in that 
source system, DHS will claim the same exemptions for those records 
that are claimed for that original primary system of records from which 
they originated and claims any additional exemptions set forth here. 
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) and (4) (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 subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from the 
subject of an investigation would alert the subject to the nature or 
existence of the investigation, thereby interfering with that 
investigation and related law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information could impede law enforcement by compromising 
the existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (f) From subsection (e)(5) (Collection of Information) because with 
the collection of information for law enforcement purposes, it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with subsection (e)(5) would 
preclude DHS agents from using their investigative training and 
exercise of good judgment to both conduct and report on investigations.
    (g) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS's ability to obtain, serve, and 
issue subpoenas, warrants, and other law enforcement mechanisms that 
may be filed under seal and could result in disclosure of investigative 
techniques, procedures, and evidence.
    (h) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
* * * * *

    Dated: March 22, 2016.
Karen L. Neuman,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2016-07896 Filed 4-5-16; 8:45 am]
 BILLING CODE 9110-9B-P