[Federal Register Volume 86, Number 154 (Friday, August 13, 2021)]
[Rules and Regulations]
[Pages 44574-44575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17004]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2021-0028]


Privacy Act of 1974: Implementation of Exemptions; U.S. 
Department of Homeland Security/ALL-046 Counterintelligence Program 
System of Records

AGENCY: U.S. Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Homeland Security (DHS) is issuing a 
final rule to amend its regulations to exempt portions of a newly 
established system of records titled, ``DHS/ALL-046 Counterintelligence 
Program System of Records'' from certain provisions of the Privacy Act. 
Specifically, the Department exempts portions from one or more 
provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements.

DATES: This final rule is effective August 13, 2021.

FOR FURTHER INFORMATION CONTACT: For privacy questions please contact: 
Lynn Parker Dupree, (202) 343-1756, [email protected], Chief Privacy 
Officer, Privacy Office, U.S. Department of Homeland Security, 
Washington, DC 20528-0655.

SUPPLEMENTARY INFORMATION:

I. Background

    The U.S. Department of Homeland Security (DHS) published a notice 
of proposed rulemaking in the Federal Register, 85 FR 80667 (December 
14, 2020), 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. In concert with that 
rulemaking, DHS issued a new system of records notice, ``DHS/ALL-046 
Counterintelligence Program System of Records'' in the Federal 
Register, 85 FR 80800 (December 14, 2020), outlining that DHS will 
collect and maintain records as part of the unified Counterintelligence 
Program across the Department.
    DHS invited comments on both the Notice of Proposed Rulemaking 
(NPRM) and System of Records Notice (SORN).

II. Public Comments

    DHS received no comments on the NPRM and comments from one 
organization on the SORN.

SORN

    DHS received comments suggesting that (1) the scope of the proposed 
records system is broad and DHS components' access to records covered 
by the Counterintelligence Program System of Records create the risk 
that components would use the records system in ways that exceed their 
stated missions; (2) the proposed routine use exemptions are not 
narrowly tailored to the defined purpose of the SORN for which the 
records are collected, would be used to disclose records to foreign and 
private entities that are not subject to the Privacy Act, and would 
create substantial risks for potential data breaches; (3) the 
Counterintelligence Program System of Records creates a substantial 
risk of data breach since the Federal Government has demonstrated it is 
incapable of handling and safeguarding sensitive information; and (4) 
the proposed exemptions are unnecessary and limit individuals' ability 
to correct harmful errors, thwart DHS's public notice obligations, and 
permit unlimited data collection, even if unnecessary and irrelevant. 
After full consideration of public comments, the Department will 
implement the rulemaking as proposed for the reasons described in the 
NPRM and as described here in the final rule.

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:  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. Amend Appendix C to Part 5 by adding paragraph 83 to read as 
follows:

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

* * * * *
    83. The Department of Homeland Security (DHS)/ALL-046 
Counterintelligence Program System of Records consists of electronic 
and paper records and will be used by DHS and its components. The 
DHS/ALL-046 Counterintelligence Program 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 
there under; national security and intelligence activities; and 
protection of the President of the U.S. or other individuals 
pursuant to Section 3056 and 3056A of Title 18. The system of 
records covers 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, 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. secs. 552a(c)(3), (c)(4); (d); (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), 
(e)(12); (f); and (g)(1). Additionally, the Secretary of Homeland 
Security, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5), has 
exempted this system from the following provisions of the Privacy 
Act: 5 U.S.C. secs. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I); and (f). 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 and Amendment to Records) 
because access to the records contained in this system of

[[Page 44575]]

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. Further, 
permitting amendment to counterintelligence records after an 
investigation has been completed would impose an unmanageable 
administrative burden. 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 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.
    (g) 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.
    (h) 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.
    (i) From subsection (e)(12) (Matching Agreements) because 
requiring DHS to provide notice of a new or revised matching 
agreement with a non-Federal agency, if one existed, would impair 
DHS operations by indicating which data elements and information are 
valuable to DHS's analytical functions, thereby providing harmful 
disclosure of information to individuals who would seek to 
circumvent or interfere with DHS's missions.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.

Lynn Parker Dupree,
Chief Privacy Officer, U.S. Department of Homeland Security.
[FR Doc. 2021-17004 Filed 8-12-21; 8:45 am]
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