[Federal Register Volume 76, Number 137 (Monday, July 18, 2011)]
[Rules and Regulations]
[Pages 42004-42005]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17940]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0050]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security Federal Emergency Management Agency--011 Training and 
Exercise Program Records 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 Federal Emergency 
Management Agency--011 Training and Exercise Program Records System of 
Records'' from certain provisions of the Privacy Act. Specifically, the 
Department exempts portions of the ``Department of Homeland Security 
Federal Emergency Management Agency--011 Training and Exercise Program 
Records 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 July 18, 2011.

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:

Background

    The Department of Homeland Security (DHS) Federal Emergency 
Management Agency (FEMA) published a notice of proposed rulemaking 
(NPRM) in the Federal Register, 76 FR 18954, April 6, 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/FEMA--011 
Training and Exercise Program Records System of Records. The DHS/FEMA--
011 Training and Exercise Program Records system of records notice 
(SORN) was published concurrently in the Federal Register, 76 FR 19107, 
April 6, 2011, and comments were invited on both the NPRM and SORN.

Public Comments

    DHS did not receive comments on the NPRM or SORN. 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, DHS amends Chapter I of 
Title 6, Code of Federal Regulations, as follows:

[[Page 42005]]

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.; Public Law 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.


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2. Add at the end of Appendix C to Part 5, the following new paragraph 
``55'':

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

* * * * *
    55. The DHS/FEMA-011 Training and Exercise Program Records 
System of Records consists of electronic and paper records and will 
be used by FEMA. The DHS/FEMA-011 Training and Exercise Program 
Records System of Records consists of electronic and paper records 
and will be used by DHS and its components and offices to maintain 
records about individual training, including enrollment and 
participation information, information pertaining to class 
schedules, programs, and instructors, training trends and needs, 
testing and examination materials, and assessments of training 
efficacy. The data will be collected by employee name or other 
unique identifier. The collection and maintenance of this 
information will assist DHS in meeting its obligation to train its 
personnel and contractors in order to ensure that the agency mission 
can be successfully accomplished. The DHS/FEMA-011 General Training 
and Exercise Program Records 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)(6) where it states: ``For testing 
or examination material used solely to determine individual 
qualifications for appointment or promotion in the Federal service 
the disclosure of which would compromise the objectivity or fairness 
of the testing or examination process.''
    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.

Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-17940 Filed 7-15-11; 8:45 am]
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