[Federal Register Volume 77, Number 6 (Tuesday, January 10, 2012)]
[Rules and Regulations]
[Pages 1387-1388]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-255]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 77, No. 6 / Tuesday, January 10, 2012 / Rules 
and Regulations

[[Page 1387]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0119]


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: Final rule.

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

SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt a newly established system of records 
titled, ``Department of Homeland Security/Federal Emergency Management 
Agency--012 Suspicious Activity Reporting 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--012 Suspicious Activity Reporting 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 January 10, 2012.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Eric M. Leckey, (202) 646-3323), Privacy Officer, Federal Emergency 
Management Agency, 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 60387, September 29, 2011, 
proposing to exempt a 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--012 
Suspicious Activity Reporting System of Records. The DHS/FEMA--012 
Suspicious Activity Reporting system of records notice (SORN) was 
published concurrently in the Federal Register, 76 FR 60067, September 
28, 2011, and comments were invited on both the NPRM and SORN.

Public Comments

    DHS/FEMA received a total of two public comments. One comment was 
received on the NPRM and one on the SORN.

NPRM

    DHS/FEMA received one public comment from an anonymous individual 
in support of the NPRM. The private individual notes that ``the DHS/
FEMA's new system of records should be exempt from the public 
disclosure component of the Privacy Act to further ensure national 
security and to add a necessary exemption to an act that seeks to 
protect individuals through information control.'' The private 
individual further stated ``this proposed rule shouldn't be seen as 
undermining an individual's right to disclosure of information that 
involves them, but rather a necessary exemption to ensure national 
safety * * *. The proposed rule justifiably exempts the DHS/FEMA from 
disclosure in order to achieve national security goals that will 
protect citizens from growing homeland threats.''

SORN

    DHS/FEMA received one public comment on the SORN from an anonymous 
individual who noted ``the Notice for the Department of Homeland 
Security/Federal Emergency Management Agency--012 Suspicious Activity 
Reporting System of Records should reflect that the effort is part of 
the larger, federal-wide Nationwide Suspicious Activity Reporting 
Initiative and that SARs are reported in accordance with ISE SAR 
Functional Standard 1.5.'' The drafting of the SORN was intended to be 
broad enough to allow for changes and fluctuation in the Nationwide SAR 
Initiative as well as implementation at DHS and FEMA. Plans are 
underway to centralize reporting within DHS of all suspicious activity 
that meets the Information Sharing Environment (ISE) Functional 
Standard. Once those plans are put into place, FEMA Office of the Chief 
Security Officer (OSCO) special agents and/or analysts will enter all 
vetted SARs into the DHS ISE SAR Vetting Tool (SVT) instead of the FBI 
e-Guardian system, as stated in the DHS/FEMA/PIA-018 Suspicious 
Activity Reporting (SAR) Privacy Impact Assessment (PIA) published on 
September 9, 2011.
    After consideration of public comments, the Department decided to 
remove reference to protection of the president and will implement the 
rulemaking as described below.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

    For the reasons stated in the preamble, DHS/FEMA 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. Add at the end of Appendix C to part 5, the following new paragraph 
``67'':

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

* * * * *
    67. The DHS/FEMA-012 Suspicious Activity Reporting System of 
Records consists of electronic and paper records and will be used by 
DHS/FEMA and its components. The DHS/FEMA--012 Suspicious Activity 
Reporting System of Records is a repository of information held by 
DHS/FEMA to serve its mission 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,

[[Page 1388]]

recover from, and mitigate all hazards. This system also supports 
certain other DHS/FEMA programs whose functions include, but are 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/FEMA 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 pursuant to 5 U.S.C. 552a(k)(2); 
(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 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/FEMA 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/
FEMA 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/FEMA 
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: December 20, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2012-255 Filed 1-9-12; 8:45 am]
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