[Title 6 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2017 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          
          
          Title 6

Domestic Security

                         Revised as of January 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2017
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 6:
          Chapter I--Department of Homeland Security, Office 
          of the Secretary                                           3
          Chapter X--Privacy and Civil Liberties Oversight 
          Board                                                    307
  Finding Aids:
      Table of CFR Titles and Chapters........................     327
      Alphabetical List of Agencies Appearing in the CFR......     347
      List of CFR Sections Affected...........................     357

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 6 CFR 3.1 refers to 
                       title 6, part 3, section 
                       1.

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2017), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001 or e-mail [email protected]

SALES

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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers of the Presidents of the United 
States, Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format via www.ofr.gov. For more 
information, contact the GPO Customer Contact Center, U.S. Government 
Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected]
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal-
register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register.
    January 1, 2017.







[[Page ix]]



                               THIS TITLE

    Title 6--Domestic Security is composed of one volume. This volume 
contains chapter I--Department of Homeland Security, Office of the 
Secretary, and Chapter X--Privacy and Civil Liberties Oversight Board. 
Chapter I contains the current Freedom of Information Act, Privacy Act 
and Classified National Security Information issued by the Department of 
Homeland Security. The contents of this volume represent all current 
regulations codified under this title of the CFR as of January 1, 2017.

    For this volume, Ann Worley was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of John Hyrum 
Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                       TITLE 6--DOMESTIC SECURITY




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

  Editorial Note: Title 6 was renamed as Domestic Security, effective 
May 25, 2007, with the addition of chapter X at 72 FR 17789, Apr. 10, 
2007.
                                                                    Part

chapter i--Department of Homeland Security, Office of the 
  Secretary.................................................           3

chapter x--Privacy and Civil Liberties Oversight Board......        1000

[[Page 3]]



   CHAPTER I--DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY




  --------------------------------------------------------------------
Part                                                                Page
1-2

[Reserved]

3               Petitions for rulemaking....................           5
4

[Reserved]

5               Disclosure of records and information.......           6
7               Classified national security information....         115
9               Restrictions upon lobbying..................         126
11              Claims......................................         136
13              Program fraud civil remedies................         142
15              Enforcement of nondiscrimination on the 
                    basis of disability in programs or 
                    activities conducted by the Department 
                    of Homeland Security....................         158
17              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         164
19              Nondiscrimination in matters pertaining to 
                    faith-based organizations...............         181
21              Nondiscrimination on the basis of race, 
                    color, or national origin in programs or 
                    activities receiving Federal financial 
                    assistance from the Department of 
                    Homeland Security.......................         187
25              Regulations to support anti-terrorism by 
                    fostering effective technologies........         197
27              Chemical facility anti-terrorism standards..         212
29              Protected critical infrastructure 
                    information.............................         248
37              REAL ID driver's licenses and identification 
                    cards...................................         258
115             Sexual abuse and assault prevention 
                    standards...............................         273
116-199

[Reserved]

[[Page 5]]

                          PARTS 1	2 [RESERVED]



PART 3_PETITIONS FOR RULEMAKING--Table of Contents



Sec.
3.1 Definitions.
3.3 Applicability.
3.5 Format and mailing instructions.
3.7 Content of a rulemaking petition.
3.9 Responding to a rulemaking petition.

    Authority: 5 U.S.C. 301, 553(e); 6 U.S.C. 112.

    Source: 81 FR 47286, July 21, 2016, unless otherwise noted.



Sec.  3.1  Definitions.

    As used in this part:
    Component means each separate organizational entity within the U.S. 
Department of Homeland Security (DHS) that reports directly to the 
Office of the Secretary.
    DHS means the U.S. Department of Homeland Security, including its 
components.
    Rulemaking petition means a petition to issue, amend, or repeal a 
rule, as described at 5 U.S.C. 553(e).



Sec.  3.3  Applicability.

    (a) General requirement. Except as provided in paragraph (b) of this 
section, this part prescribes the exclusive process for interested 
persons to submit a rulemaking petition on a matter within DHS's 
jurisdiction.
    (b) Exceptions--(1) U.S. Coast Guard. This part does not apply to 
any petition for rulemaking directed to the U.S. Coast Guard. Such 
petitions are governed by 33 CFR 1.05-20.
    (2) Federal Emergency Management Agency. This part does not apply to 
any petition for rulemaking directed to the Federal Emergency Management 
Agency. Such petitions are governed by 44 CFR 1.18.



Sec.  3.5  Format and mailing instructions.

    (a) Format. A rulemaking petition must include in a prominent 
location--
    (1) The words ``Petition for Rulemaking'' or ``Rulemaking 
Petition;'' and
    (2) The petitioner's name and a mailing address, in addition to any 
other contact information (such as telephone number or email) that the 
petitioner chooses to include.
    (b) Mailing instructions--(1) General mailing address. Any 
interested person may submit a rulemaking petition by sending it to the 
following address: U.S. Department of Homeland Security, Office of the 
General Counsel, Mail Stop 0485, Attn: Regulatory Affairs Law Division, 
245 Murray Lane SW., Washington, DC 20528-0485.
    (2) Transportation Security Administration mailing address. Any 
interested person may submit a rulemaking petition regarding a 
Transportation Security Administration program or authority directly to 
the Transportation Security Administration by sending it to the 
following address: Transportation Security Administration, Office of the 
Chief Counsel, TSA-2, Attn: Regulations and Security Standards Division, 
601 South 12th Street, Arlington, VA 20598-6002.
    (3) DHS does not accept rulemaking petitions delivered by courier.



Sec.  3.7  Content of a rulemaking petition.

    (a) DHS will be better positioned to understand and respond to a 
rulemaking petition if the petition describes with reasonable 
particularity the rule that the petitioner is asking DHS to issue, 
amend, or repeal, and the factual and legal basis for the petition. For 
instance, DHS would be better able to understand and respond to a 
petition that includes--
    (1) A description of the specific problem that the requested 
rulemaking would address;
    (2) An explanation of how the requested rulemaking would resolve 
this problem;
    (3) Data and other information that would be relevant to DHS's 
consideration of the petition;
    (4) A description of the substance of the requested rulemaking; and
    (5) Citation to the pertinent existing regulations provisions (if 
any) and pertinent DHS legal authority for taking action.
    (b) [Reserved]

[[Page 6]]



Sec.  3.9  Responding to a rulemaking petition.

    (a) Public procedure. DHS may, in its discretion, seek broader 
public comment on a rulemaking petition prior to its disposition under 
this section.
    (b) Disposition. DHS may respond to the petition by letter or by 
Federal Register publication. DHS may grant or deny the petition, in 
whole or in part.
    (c) Grounds for denial. DHS may deny the petition for any reason 
consistent with law, including, but not limited to, the following 
reasons: The petition has no merit, the petition is contrary to 
pertinent statutory authority, the petition is not supported by the 
relevant information or data, or the petition cannot be addressed 
because of other priorities or resource constraints.
    (d) Summary disposition. DHS may, by written letter, deny or 
summarily dismiss without prejudice any petition that is moot, 
premature, repetitive, or frivolous, or that plainly does not warrant 
further consideration.

                            PART 4 [RESERVED]



PART 5_DISCLOSURE OF RECORDS AND INFORMATION--Table of Contents



  Subpart A_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

Sec.
5.1 General provisions.
5.2 Proactive disclosures of DHS records.
5.3 Requirements for making requests.
5.4 Responsibility for responding to requests.
5.5 Timing of responses to requests.
5.6 Responses to requests.
5.7 Confidential commercial information.
5.8 Administrative appeals.
5.9 Preservation of records.
5.10 FOIA requests for information contained in a Privacy Act system of 
          records.
5.11 Fees.
5.12 Confidential commercial information; CBP procedures.
5.13 Other rights and services.

Appendix I to Subpart A of Part 5--FOIA Contact Information

                          Subpart B_Privacy Act

5.20 General provisions.
5.21 Requests for access to records.
5.22 Responsibility for responding to requests for access to records.
5.23 Responses to requests for access to records.
5.24 Classified information.
5.25 Appeals.
5.26 Requests for amendment or correction of records.
5.27 Requests for an accounting of record disclosures.
5.28 Preservation of records.
5.29 Fees.
5.30 Notice of court-ordered and emergency disclosures.
5.31 Security of systems of records.
5.32 Contracts for the operation of record systems.
5.33 Use and collection of social security numbers.
5.34 Standards of conduct for administration of the Privacy Act.
5.35 Sanctions and penalties.
5.36 Other rights and services.

            Subpart C_Disclosure of Information in Litigation

5.41 Purpose and scope; definitions.
5.42 Service of summonses and complaints.
5.43 Service of subpoenas, court orders, and other demands or requests 
          for official information or action.
5.44 Testimony and production of documents prohibited unless approved by 
          appropriate Department officials.
5.45 Procedure when testimony or production of documents is sought; 
          general.
5.46 Procedure when response to demand is required prior to receiving 
          instructions.
5.47 Procedure in the event of an adverse ruling.
5.48 Considerations in determining whether the Department will comply 
          with a demand or request.
5.49 Prohibition on providing expert or opinion testimony.

Appendix A to Part 5--FOIA/Privacy Act Offices of the Department of 
          Homeland Security
Appendix B to Part 5 [Reserved]
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy Act

    Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 301; 6 U.S.C. 101 
et seq.; E.O. 13392.

    Source: 68 FR 4056, Jan. 27, 2003, unless otherwise noted.



  Subpart A_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

    Source: 81 FR 83632, Nov. 22, 2016, unless otherwise noted.

[[Page 7]]



Sec.  5.1  General provisions.

    (a)(1) This subpart contains the rules that the Department of 
Homeland Security follows in processing requests for records under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended.
    (2) The rules in this subpart should be read in conjunction with the 
text of the FOIA and the Uniform Freedom of Information Fee Schedule and 
Guidelines published by the Office of Management and Budget at 52 FR 
10012 (March 27, 1987) (hereinafter ``OMB Guidelines''). Additionally, 
DHS has additional policies and procedures relevant to the FOIA process. 
These resources are available at http://www.dhs.gov/freedom-information-
act-foia. Requests made by individuals for records about themselves 
under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under 
subpart B of part 5 as well as under this subpart.
    (b) As referenced in this subpart, component means the FOIA office 
of each separate organizational entity within DHS that reports directly 
to the Office of the Secretary.
    (c) DHS has a decentralized system for processing requests, with 
each component handling requests for its records.
    (d) Unofficial release of DHS information. The disclosure of exempt 
records, without authorization by the appropriate DHS official, is not 
an official release of information; accordingly, it is not a FOIA 
release. Such a release does not waive the authority of the Department 
of Homeland Security to assert FOIA exemptions to withhold the same 
records in response to a FOIA request. In addition, while the authority 
may exist to disclose records to individuals in their official capacity, 
the provisions of this part apply if the same individual seeks the 
records in a private or personal capacity.



Sec.  5.2  Proactive disclosure of DHS records.

    Records that are required by the FOIA to be made available for 
public inspection in an electronic format are accessible on DHS's Web 
site, http://www.dhs.gov/freedom-information-act-foia-and-privacy-act. 
Each component is responsible for determining which of its records are 
required to be made publicly available, as well as identifying 
additional records of interest to the public that are appropriate for 
public disclosure, and for posting and indexing such records. Each 
component shall ensure that posted records and indices are updated on an 
ongoing basis. Each component has a FOIA Public Liaison who can assist 
individuals in locating records particular to a component. A list of 
DHS's FOIA Public Liaisons is available at http://www.dhs.gov/foia-
contact-information and in appendix I to this subpart. Requesters who do 
not have access to the internet may contact the Public Liaison for the 
component from which they seek records for assistance with publicly 
available records.



Sec.  5.3  Requirements for making requests.

    (a) General information. (1) DHS has a decentralized system for 
responding to FOIA requests, with each component designating a FOIA 
office to process records from that component. All components have the 
capability to receive requests electronically, either through email or a 
web portal. To make a request for DHS records, a requester should write 
directly to the FOIA office of the component that maintains the records 
being sought. A request will receive the quickest possible response if 
it is addressed to the FOIA office of the component that maintains the 
records sought. DHS's FOIA Reference Guide contains or refers the reader 
to descriptions of the functions of each component and provides other 
information that is helpful in determining where to make a request. Each 
component's FOIA office and any additional requirements for submitting a 
request to a given component are listed in appendix I of this subpart. 
These references can all be used by requesters to determine where to 
send their requests within DHS.
    (2) A requester may also send his or her request to the Privacy 
Office, U.S. Department of Homeland Security, 245 Murray Lane SW STOP-
0655, or via the internet at http://www.dhs.gov/dhs-foia-request-
submission-form, or via fax to (202) 343-4011. The Privacy Office will

[[Page 8]]

forward the request to the component(s) that it determines to be most 
likely to maintain the records that are sought.
    (3) A requester who is making a request for records about him or 
herself must comply with the verification of identity provision set 
forth in subpart B of this part.
    (4) Where a request for records pertains to a third party, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual, in compliance with the 
verification of identity provision set forth in subpart B of this part, 
or a declaration made in compliance with the requirements set forth in 
28 U.S.C. 1746 by that individual, authorizing disclosure of the records 
to the requester, or by submitting proof that the individual is deceased 
(e.g., a copy of a death certificate or an obituary). As an exercise of 
its administrative discretion, each component can require a requester to 
supply additional information if necessary in order to verify that a 
particular individual has consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable DHS personnel to locate 
them with a reasonable amount of effort. A reasonable description 
contains sufficient information to permit an organized, non-random 
search for the record based on the component's filing arrangements and 
existing retrieval systems. To the extent possible, requesters should 
include specific information that may assist a component in identifying 
the requested records, such as the date, title or name, author, 
recipient, subject matter of the record, case number, file designation, 
or reference number. Requesters should refer to appendix I of this 
subpart for additional component-specific requirements. In general, 
requesters should include as much detail as possible about the specific 
records or the types of records that they are seeking. Before submitting 
their requests, requesters may contact the component's FOIA Officer or 
FOIA public liaison to discuss the records they are seeking and to 
receive assistance in describing the records. If after receiving a 
request, a component determines that it does not reasonably describe the 
records sought, the component should inform the requester what 
additional information is needed or why the request is otherwise 
insufficient. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with the component's designated 
FOIA Officer, its FOIA Public Liaison, or a representative of the DHS 
Privacy Office, each of whom is available to assist the requester in 
reasonably describing the records sought.
    (c) If a request does not adequately describe the records sought, 
DHS may at its discretion either administratively close the request or 
seek additional information from the requester. Requests for 
clarification or more information will be made in writing (either via 
U.S. mail or electronic mail whenever possible). Requesters may respond 
by U.S. Mail or by electronic mail regardless of the method used by DHS 
to transmit the request for additional information. In order to be 
considered timely, responses to requests for additional information must 
be postmarked or received by electronic mail within 30 working days of 
the postmark date or date of the electronic mail request for additional 
information or received by electronic mail by 11:59:59 p.m. ET on the 
30th working day. If the requester does not respond to a request for 
additional information within thirty (30) working days, the request may 
be administratively closed at DHS's discretion. This administrative 
closure does not prejudice the requester's ability to submit a new 
request for further consideration with additional information.



Sec.  5.4  Responsibility for responding to requests.

    (a) In general. Except in the instances described in paragraphs (c) 
and (d) of this section, the component that first receives a request for 
a record and maintains that record is the component responsible for 
responding to the request. In determining which records are responsive 
to a request, a component ordinarily will include only records in its 
possession as of the date that it begins its search. If any other

[[Page 9]]

date is used, the component shall inform the requester of that date. A 
record that is excluded from the requirements of the FOIA pursuant to 5 
U.S.C. 552(c), shall not be considered responsive to a request.
    (b) Authority to grant or deny requests. The head of a component, or 
designee, is authorized to grant or to deny any requests for records 
that are maintained by that component.
    (c) Re-routing of misdirected requests. Where a component's FOIA 
office determines that a request was misdirected within DHS, the 
receiving component's FOIA office shall route the request to the FOIA 
office of the proper component(s).
    (d) Consultations, coordination and referrals. When a component 
determines that it maintains responsive records that either originated 
with another component or agency, or which contains information provided 
by, or of substantial interest to, another component or agency, then it 
shall proceed in accordance with either paragraph (d)(1), (2), or (3) of 
this section, as appropriate:
    (1) The component may respond to the request, after consulting with 
the component or the agency that originated or has a substantial 
interest in the records involved.
    (2) The component may respond to the request after coordinating with 
the other components or agencies that originated the record. This may 
include situations where the standard referral procedure is not 
appropriate where disclosure of the identity of the component or agency 
to which the referral would be made could harm an interest protected by 
an applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. For example, if a non-law 
enforcement component responding to a request for records on a living 
third party locates records within its files originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party was not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion of the 
personal privacy of the third party. Similarly, if a component locates 
material within its files originating with an Intelligence Community 
agency, and the involvement of that agency in the matter is classified 
and not publicly acknowledged, then to disclose or give attribution to 
the involvement of that Intelligence Community agency could cause 
national security harms. In such instances, in order to avoid harm to an 
interest protected by an applicable exemption, the component that 
received the request should coordinate with the originating component or 
agency to seek its views on the disclosability of the record. The 
release determination for the record that is the subject of the 
coordination should then be conveyed to the requester by the component 
that originally received the request.
    (3) The component may refer the responsibility for responding to the 
request or portion of the request to the component or agency best able 
to determine whether to disclose the relevant records, or to the agency 
that created or initially acquired the record as long as that agency is 
subject to the FOIA. Ordinarily, the component or agency that created or 
initially acquired the record will be presumed to be best able to make 
the disclosure determination. The referring component shall document the 
referral and maintain a copy of the records that it refers.
    (e) Classified information. On receipt of any request involving 
classified information, the component shall determine whether 
information is currently and properly classified and take appropriate 
action to ensure compliance with 6 CFR part 7. Whenever a request 
involves a record containing information that has been classified or may 
be appropriate for classification by another component or agency under 
any applicable executive order concerning the classification of records, 
the receiving component shall refer the responsibility for responding to 
the request regarding that information to the component or agency that 
classified the information, or should consider the information for 
classification. Whenever a component's record contains information 
classified by another component or agency, the component

[[Page 10]]

shall coordinate with or refer the responsibility for responding to that 
portion of the request to the component or agency that classified the 
underlying information.
    (f) Notice of referral. Whenever a component refers any part of the 
responsibility for responding to a request to another component or 
agency, it will notify the requester of the referral and inform the 
requester of the name of each component or agency to which the records 
were referred, unless disclosure of the identity of the component or 
agency would harm an interest protected by an applicable exemption, in 
which case the component should coordinate with the other component or 
agency, rather than refer the records.
    (g) Timing of responses to consultations and referrals. All 
consultations and referrals received by DHS will be handled according to 
the date that the FOIA request initially was received by the first 
component or agency, not any later date.
    (h) Agreements regarding consultations and referrals. Components may 
establish agreements with other components or agencies to eliminate the 
need for consultations or referrals with respect to particular types of 
records.
    (i) Electronic records and searches--(1) Significant interference. 
The FOIA allows components to not conduct a search for responsive 
documents if the search would cause significant interference with the 
operation of the component's automated information system.
    (2) Business as usual approach. A ``business as usual'' approach 
exists when the component has the capability to process a FOIA request 
for electronic records without a significant expenditure of monetary or 
personnel resources. Components are not required to conduct a search 
that does not meet this business as usual criterion.
    (i) Creating computer programs or purchasing additional hardware to 
extract email that has been archived for emergency retrieval usually are 
not considered business as usual if extensive monetary or personnel 
resources are needed to complete the project.
    (ii) Creating a computer program that produces specific requested 
fields or records contained within a well-defined database structure 
usually is considered business as usual. The time to create this program 
is considered as programmer or operator search time for fee assessment 
purposes and the FOIA requester may be assessed fees in accordance with 
Sec.  5.11(c)(1)(iii). However, creating a computer program to merge 
files with disparate data formats and extract specific elements from the 
resultant file is not considered business as usual, but a special 
service, for which additional fees may be imposed as specified in Sec.  
5.11. Components are not required to perform special services and 
creation of a computer program for a fee is up to the discretion of the 
component and is dependent on component resources and expertise.
    (3) Data links. Components are not required to expend DHS funds to 
establish data links that provide real time or near-real-time data to a 
FOIA requester.



Sec.  5.5  Timing of responses to requests.

    (a) In general. Components ordinarily will respond to requests 
according to their order of receipt. Appendix I to this subpart contains 
the list of components that are designated to accept requests. In 
instances involving misdirected requests that are re-routed pursuant to 
Sec.  5.4(c), the response time will commence on the date that the 
request is received by the proper component, but in any event not later 
than ten working days after the request is first received by any DHS 
component designated in appendix I of this subpart.
    (b) Multitrack processing. All components must designate a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (e) of this section. A 
component may also designate additional processing tracks that 
distinguish between simple and more complex requests based on the 
estimated amount of work or time needed to process the request. Among 
the factors a component may consider are the number of pages involved in 
processing the request or the need for consultations or referrals. 
Components shall advise requesters of the track into which their request 
falls, and

[[Page 11]]

when appropriate, shall offer requesters an opportunity to narrow their 
request so that the request can be placed in a different processing 
track.
    (c) Unusual circumstances. Whenever the statutory time limits for 
processing a request cannot be met because of ``unusual circumstances,'' 
as defined in the FOIA, and the component extends the time limits on 
that basis, the component shall, before expiration of the twenty-day 
period to respond, notify the requester in writing of the unusual 
circumstances involved and of the date by which processing of the 
request can be expected to be completed. Where the extension exceeds ten 
working days, the component shall, as described by the FOIA, provide the 
requester with an opportunity to modify the request or agree to an 
alternative time period for processing. The component shall make 
available its designated FOIA Officer and its FOIA Public Liaison for 
this purpose. The component shall also alert requesters to the 
availability of the Office of Government Information Services (OGIS) to 
provide dispute resolution services.
    (d) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, components may aggregate requests in cases 
where it reasonably appears that multiple requests, submitted either by 
a requester or by a group of requesters acting in concert, constitute a 
single request that would otherwise involve unusual circumstances. 
Components will not aggregate multiple requests that involve unrelated 
matters.
    (e) Expedited processing. (1) Requests and appeals will be processed 
on an expedited basis whenever the component determines that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person who is primarily 
engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity which 
affect public confidence.
    (2) A request for expedited processing may be made at any time. 
Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section 
must be submitted to the component that maintains the records requested. 
When making a request for expedited processing of an administrative 
appeal, the request should be submitted to the DHS Office of General 
Counsel or the component Appeals Officer. Address information is 
available at the DHS Web site, http://www.dhs.gov/freedom-information-
act-foia, or by contacting the component FOIA officers via the 
information listed in appendix I. Requests for expedited processing that 
are based on paragraph (e)(1)(iv) of this section must be submitted to 
the Senior Director of FOIA Operations, the Privacy Office, U.S. 
Department of Homeland Security, 245 Murray Lane SW STOP-0655, 
Washington, DC 20598-0655. A component that receives a misdirected 
request for expedited processing under the standard set forth in 
paragraph (e)(1)(iv) of this section shall forward it immediately to the 
DHS Senior Director of FOIA Operations, the Privacy Office, for 
determination. The time period for making the determination on the 
request for expedited processing under paragraph (e)(1)(iv) of this 
section shall commence on the date that the Privacy Office receives the 
request, provided that it is routed within ten working days, but in no 
event shall the time period for making a determination on the request 
commence any later than the eleventh working day after the request is 
received by any component designated in appendix I of this subpart.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (e)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that he or she is a 
person who primarily engages in information dissemination, though it 
need not be his or her sole occupation. Such a requester also must 
establish a particular urgency to inform the public

[[Page 12]]

about the government activity involved in the request--one that extends 
beyond the public's right to know about government activity generally. 
The existence of numerous articles published on a given subject can be 
helpful to establishing the requirement that there be an ``urgency to 
inform'' the public on the topic. As a matter of administrative 
discretion, a component may waive the formal certification requirement.
    (4) A component shall notify the requester within ten calendar days 
of the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request shall be given priority, placed in the 
processing track for expedited requests, and shall be processed as soon 
as practicable. If a request for expedited processing is denied, any 
appeal of that decision shall be acted on expeditiously.



Sec.  5.6  Responses to requests.

    (a) In general. Components should, to the extent practicable, 
communicate with requesters having access to the Internet using 
electronic means, such as email or web portal.
    (b) Acknowledgments of requests. A component shall acknowledge the 
request and assign it an individualized tracking number if it will take 
longer than ten working days to process. Components shall include in the 
acknowledgment a brief description of the records sought to allow 
requesters to more easily keep track of their requests.
    (c) Grants of requests. Ordinarily, a component shall have twenty 
(20) working days from when a request is received to determine whether 
to grant or deny the request unless there are unusual or exceptional 
circumstances. Once a component makes a determination to grant a request 
in full or in part, it shall notify the requester in writing. The 
component also shall inform the requester of any fees charged under 
Sec.  5.11 and shall disclose the requested records to the requester 
promptly upon payment of any applicable fees. The component shall inform 
the requester of the availability of its FOIA Public Liaison to offer 
assistance.
    (d) Adverse determinations of requests. A component making an 
adverse determination denying a request in any respect shall notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include decisions that the requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject to 
the FOIA; the requested record does not exist, cannot be located, or has 
been destroyed; or the requested record is not readily reproducible in 
the form or format sought by the requester. Adverse determinations also 
include denials involving fees, including requester categories or fee 
waiver matters, or denials of requests for expedited processing.
    (e) Content of denial. The denial shall be signed by the head of the 
component, or designee, and shall include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the component in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, for example, by providing the number of pages or some other 
reasonable form of estimation. This estimation is not required if the 
volume is otherwise indicated by deletions marked on records that are 
disclosed in part, or if providing an estimate would harm an interest 
protected by an applicable exemption; and
    (4) A statement that the denial may be appealed under Sec.  5.8(a), 
and a description of the requirements set forth therein.
    (5) A statement notifying the requester of the assistance available 
from the agency's FOIA Public Liaison and the dispute resolution 
services offered by OGIS.
    (f) Markings on released documents. Markings on released documents 
must be clearly visible to the requester. Records disclosed in part 
shall be marked to show the amount of information deleted and the 
exemption

[[Page 13]]

under which the deletion was made unless doing so would harm an interest 
protected by an applicable exemption. The location of the information 
deleted also shall be indicated on the record, if technically feasible.
    (g) Use of record exclusions. (1) In the event that a component 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the head of the 
FOIA office of that component must confer with Department of Justice's 
Office of Information Policy (OIP) to obtain approval to apply the 
exclusion.
    (2) Any component invoking an exclusion shall maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.



Sec.  5.7  Confidential commercial information.

    (a) Definitions--(1) Confidential commercial information means 
commercial or financial information obtained by DHS from a submitter 
that may be protected from disclosure under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom DHS obtains 
confidential commercial information, directly or indirectly.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, either at the time of submission or 
within a reasonable time thereafter, any portion of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations will expire ten years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (c) When notice to submitters is required. (1) A component shall 
promptly provide written notice to a submitter whenever records 
containing such information are requested under the FOIA if, after 
reviewing the request, the responsive records, and any appeal by the 
requester, the component determines that it may be required to disclose 
the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The component has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4.
    (2) The notice shall either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, notice may be made by posting or publishing the 
notice in a place or manner reasonably likely to accomplish it.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of paragraphs (c) and (g) of this section shall not apply 
if:
    (1) The component determines that the information is exempt under 
the FOIA;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous, except that, in such a case, 
the component shall give the submitter written notice of any final 
decision to disclose the information and must provide that notice within 
a reasonable number of days prior to a specified disclosure date.
    (e) Opportunity to object to disclosure. (1) A component will 
specify a reasonable time period, but no fewer than 10 working days, 
within which the submitter must respond to the notice referenced above. 
If a submitter has any objections to disclosure, it should provide the 
component a detailed written statement that specifies all grounds for 
withholding the particular information under any exemption of the FOIA. 
In order to rely on Exemption 4 as basis for nondisclosure, the 
submitter must explain why the information constitutes a trade secret, 
or commercial or financial information that is privileged or 
confidential.

[[Page 14]]

    (2) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. Information received by the component 
after the date of any disclosure decision will not be considered by the 
component. Any information provided by a submitter under this subpart 
may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. A component shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether to 
disclose the requested information.
    (g) Notice of intent to disclose. Whenever a component decides to 
disclose information over the objection of a submitter, the component 
shall provide the submitter written notice, which shall include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice, but no fewer than 10 working days.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial information, 
the component shall promptly notify the submitter.
    (i) Requester notification. The component shall notify a requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.
    (j) Scope. This section shall not apply to any confidential 
commercial information provided to CBP by a business submitter. Section 
5.12 applies to such information. Section 5.12 also defines 
``confidential commercial information'' as used in this paragraph.



Sec.  5.8  Administrative appeals.

    (a) Requirements for filing an appeal. (1) A requester may appeal 
adverse determinations denying his or her request or any part of the 
request to the appropriate Appeals Officer. A requester may also appeal 
if he or she questions the adequacy of the component's search for 
responsive records, or believes the component either misinterpreted the 
request or did not address all aspects of the request (i.e., it issued 
an incomplete response), or if the requester believes there is a 
procedural deficiency (e.g., fees were improperly calculated). For the 
address of the appropriate component Appeals Officer, contact the 
applicable component FOIA liaison using the information in appendix I to 
this subpart, visit www.dhs.gov/foia, or call 1-866-431-0486. An appeal 
must be in writing, and to be considered timely it must be postmarked 
or, in the case of electronic submissions, transmitted to the Appeals 
Officer within 90 working days after the date of the component's 
response. An electronically filed appeal will be considered timely if 
transmitted to the Appeals Officer by 11:59:59 p.m. ET or EDT on the 
90th working day. The appeal should clearly identify the component 
determination (including the assigned request number if the requester 
knows it) that is being appealed and should contain the reasons the 
requester believes the determination was erroneous. To facilitate 
handling, the requester should mark both the letter and the envelope, or 
the transmittal line in the case of electronic transmissions ``Freedom 
of Information Act Appeal.''
    (2) An adverse determination by the component appeals officer will 
be the final action of DHS.
    (b) Adjudication of appeals. (1) The DHS Office of the General 
Counsel or its designee (e.g., component Appeals Officers) is the 
authorized appeals authority for DHS;
    (2) On receipt of any appeal involving classified information, the 
Appeals Officer shall consult with the Chief Security Officer, and take 
appropriate action to ensure compliance with 6 CFR part 7;
    (3) If the appeal becomes the subject of a lawsuit, the Appeals 
Officer is not required to act further on the appeal.
    (c) Appeal decisions. The decision on the appeal will be made in 
writing. A decision that upholds a component's determination will 
contain a statement

[[Page 15]]

that identifies the reasons for the affirmance, including any FOIA 
exemptions applied. The decision will provide the requester with 
notification of the statutory right to file a lawsuit and will inform 
the requester of the mediation services offered by the Office of 
Government Information Services, of the National Archives and Records 
Administration, as a non-exclusive alternative to litigation. Should the 
requester elect to mediate any dispute related to the FOIA request with 
the Office of Government Information Services, DHS and its components 
will participate in the mediation process in good faith. If the adverse 
decision is reversed or modified on appeal, in whole or in part, the 
requester will be notified in a written decision and the request will be 
thereafter be further processed in accordance with that appeal decision.
    (d) Time limit for issuing appeal decision. The statutory time limit 
for responding to appeals is generally 20 working days after receipt. 
However, the Appeals Officer may extend the time limit for responding to 
an appeal provided the circumstances set forth in 5 U.S.C. 
552(a)(6)(B)(i) are met.
    (e) Appeal necessary before seeking court review. If a requester 
wishes to seek court review of a component's adverse determination on a 
matter appealable under paragraph (a)(1) of this section, the requester 
must generally first appeal it under this subpart. However, a requester 
is not required to first file an appeal of an adverse determination of a 
request for expedited processing prior to seeking court review.



Sec.  5.9  Preservation of records.

    Each component shall preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized 
pursuant to title 44 of the United States Code or the General Records 
Schedule 4.2 and/or 14 of the National Archives and Records 
Administration. Records will not be disposed of or destroyed while they 
are the subject of a pending request, appeal, or lawsuit under the FOIA.



Sec.  5.10  FOIA requests for information contained in a Privacy Act system of records.

    (a) Information subject to Privacy Act. (1) If a requester submits a 
FOIA request for information about him or herself that is contained in a 
Privacy Act system of records applicable to the requester (i.e., the 
information contained in the system of records is retrieved by the 
component using the requester's name or other personal identifier, and 
the information pertains to an individual covered by the Privacy Act) 
the request will be processed under both the FOIA and the Privacy Act.
    (2) If the information the requester is seeking is not subject to 
the Privacy Act (e.g., the information is filed under another subject, 
such as an organization, activity, event, or an investigation not 
retrievable by the requester's name or personal identifier), the 
request, if otherwise properly made, will be treated only as a FOIA 
request. In addition, if the information is covered by the Privacy Act 
and the requester does not provide proper verification of the 
requester's identity, the request, if otherwise properly made, will be 
processed only under the FOIA.
    (b) When both Privacy Act and FOIA exemptions apply. Only if both a 
Privacy Act exemption and a FOIA exemption apply can DHS withhold 
information from a requester if the information sought by the requester 
is about him or herself and is contained in a Privacy Act system of 
records applicable to the requester.
    (c) Conditions for release of Privacy Act information to third 
parties in response to a FOIA request. If a requester submits a FOIA 
request for Privacy Act information about another individual, the 
information will not be disclosed without that person's prior written 
consent that provides the same verification information that the person 
would have been required to submit for information about him or herself, 
unless--
    (1) The information is required to be released under the FOIA, as 
provided by 5 U.S.C. 552a (b)(2); or
    (2) In most circumstances, if the individual is deceased.
    (d) Privacy Act requirements. See DHS's Privacy Act regulations in 5

[[Page 16]]

CFR part 5, subpart B for additional information regarding the 
requirements of the Privacy Act.



Sec.  5.11  Fees.

    (a) In general. Components shall charge for processing requests 
under the FOIA in accordance with the provisions of this section and 
with the OMB Guidelines. Components will ordinarily use the most 
efficient and least expensive method for processing requested records. 
In order to resolve any fee issues that arise under this section, a 
component may contact a requester for additional information. A 
component ordinarily will collect all applicable fees before sending 
copies of records to a requester. If you make a FOIA request, it shall 
be considered a firm commitment to pay all applicable fees charged under 
Sec.  5.11, up to $25.00, unless you seek a waiver of fees. Requesters 
must pay fees by check or money order made payable to the Treasury of 
the United States.
    (b) Definitions. Generally, ``requester category'' means one of the 
three categories in which agencies place requesters for the purpose of 
determining whether a requester will be charged fees for search, review 
and duplication; categories include commercial requesters, noncommercial 
scientific or educational institutions or news media requesters, and all 
other requesters. The term ``fee waiver'' means that processing fees 
will be waived, or reduced, if a requester can demonstrate that certain 
statutory standards are satisfied including that the information is in 
the public interest and is not requested for a primarily commercial 
interest. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. A component's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information.
    (2) Direct costs are those expenses that an agency expends in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. For 
example, direct costs include the salary of the employee performing the 
work (i.e., the basic rate of pay for the employee, plus 16 percent of 
that rate to cover benefits) and the cost of operating computers and 
other electronic equipment, such as photocopiers and scanners. Direct 
costs do not include overhead expenses such as the costs of space, and 
of heating or lighting a facility.
    (3) Duplication is reproducing a copy of a record or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with his or her role at the educational 
institution. Components may seek verification from the requester that 
the request is in furtherance of scholarly research.

    Example 1. A request from a professor of geology at a university for 
records relating to soil erosion, written on letterhead of the 
Department of Geology, would be presumed to be from an educational 
institution if the request adequately describes how the requested 
information would further a specific research goal of the educational 
institution.
    Example 2. A request from the same professor of geology seeking 
immigration information from the U.S. Immigration and Customs 
Enforcement in furtherance of a murder mystery he is writing would not 
be presumed to be an institutional request, regardless of whether it was 
written on institutional stationery.
    Example 3. A student who makes a request in furtherance of their 
coursework or other school-sponsored activities and provides a copy of a 
course syllabus or other reasonable documentation to indicate the 
research purpose for the request, would qualify as part of this fee 
category.
    Note: These examples are provided for guidance purposes only. Each 
individual request will be evaluated under the particular facts, 
circumstances, and information provided by the requester.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this section, and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to

[[Page 17]]

promote any particular product or industry. A requester in this category 
must show that the request is authorized by and is made under the 
auspices of a qualifying institution and that the records are sought to 
further scientific research and not for a commercial use.
    (6) Representative of the news media is any person or entity that 
actively gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. The term 
``news'' means information that is about current events or that would be 
of current interest to the public. Examples of news media entities 
include television or radio stations that broadcast ``news'' to the 
public at large and publishers of periodicals that disseminate ``news'' 
and make their products available through a variety of means to the 
general public, including but not limited to, news organizations that 
disseminate solely on the Internet. A request for records that supports 
the news-dissemination function of the requester shall not be considered 
to be for a commercial use. In contrast, data brokers or others who 
merely compile and market government information for direct economic 
return shall not be presumed to be news media entities. ``Freelance'' 
journalists must demonstrate a solid basis for expecting publication 
through a news media entity in order to be considered as working for a 
news media entity. A publication contract would provide the clearest 
evidence that publication is expected; however, components shall also 
consider a requester's past publication record in making this 
determination.
    (7) Review is the page-by-page, line-by-line examination of a record 
located in response to a request in order to determine whether any 
portion of it is exempt from disclosure. Review time includes processing 
any record for disclosure, such as doing all that is necessary to 
prepare the record for disclosure, including the process of redacting 
the record and marking the appropriate exemptions. Review costs are 
properly charged even if a record ultimately is not disclosed. Review 
time also includes time spent both obtaining and considering any formal 
objection to disclosure made by a confidential commercial information 
submitter under Sec.  5.7 or Sec.  5.12, but it does not include time 
spent resolving general legal or policy issues regarding the application 
of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records; and the 
reasonable efforts expended to locate and retrieve information from 
electronic records. Components shall ensure that searches are done in 
the most efficient and least expensive manner reasonably possible by 
readily available means.
    (c) Charging fees. In responding to FOIA requests, components shall 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, unless otherwise stated in Sec.  5.11, components should 
not add any additional costs to those charges.
    (1) Search. (i) Search fees shall be charged for all requests 
subject to the restrictions of paragraph (d) of this section. Components 
may properly charge for time spent searching even if they do not locate 
any responsive records or if they determine that the records are 
entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require new 
programming, the fees will be as follows: Managerial--$10.25; 
professional--$7.00; and clerical/administrative--$4.00.
    (iii) Requesters will be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program, as referenced in section 5.4, to locate the requested records. 
Requesters shall be notified of the costs associated with creating such 
a program and must agree to pay the associated costs before the costs 
may be incurred.
    (iv) For requests that require the retrieval of records stored by an 
agency at a federal records center operated by

[[Page 18]]

the National Archives and Records Administration (NARA), additional 
costs shall be charged in accordance with the Transactional Billing Rate 
Schedule established by NARA.
    (2) Duplication. Duplication fees will be charged to all requesters, 
subject to the restrictions of paragraph (d) of this section. A 
component shall honor a requester's preference for receiving a record in 
a particular form or format where it is readily reproducible by the 
component in the form or format requested. Where photocopies are 
supplied, the component will provide one copy per request at a cost of 
ten cents per page. For copies of records produced on tapes, disks, or 
other media, components will charge the direct costs of producing the 
copy, including operator time. Where paper documents must be scanned in 
order to comply with a requester's preference to receive the records in 
an electronic format, the requester shall pay the direct costs 
associated with scanning those materials. For other forms of 
duplication, components will charge the direct costs.
    (3) Review. Review fees will be charged to requesters who make 
commercial use requests. Review fees will be assessed in connection with 
the initial review of the record, i.e., the review conducted by a 
component to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, when the appellate authority determines that a 
particular exemption no longer applies, any costs associated with a 
component's re-review of the records in order to consider the use of 
other exemptions may be assessed as review fees. Review fees will be 
charged at the same rates as those charged for a search under paragraph 
(c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) No search fees will be 
charged for requests by educational institutions, noncommercial 
scientific institutions, or representatives of the news media, unless 
the records are sought for a commercial use.
    (2) If a component fails to comply with the FOIA's time limits in 
which to respond to a request, it may not charge search fees, or, in the 
instances of requests from requesters described in paragraph (d)(1) of 
this section, may not charge duplication fees, except as described in 
(d)(2)(i) through (iii).
    (i) If a component has determined that unusual circumstances as 
defined by the FOIA apply and the component provided timely written 
notice to the requester in accordance with the FOIA, a failure to comply 
with the time limit shall be excused for an additional 10 days.
    (ii) If a component has determined that unusual circumstances, as 
defined by the FOIA, apply and more than 5,000 pages are necessary to 
respond to the request, a component may charge search fees, or, in the 
case of requesters described in paragraph (d)(1) of this section, may 
charge duplication fees, if the following steps are taken. The component 
must have provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and the component must have 
discussed with the requester via written mail, email, or telephone (or 
made not less than three good-faith attempts to do so) how the requester 
could effectively limit the scope of the request in accordance with 5. 
U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the component 
may charge all applicable fees incurred in the processing of the 
request.
    (iii) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, 
components will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under paragraph (c) of

[[Page 19]]

this section is $14.00 or less for any request, no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. (1) When a 
component determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the component shall 
notify the requester of the actual or estimated amount of the fees, 
including a breakdown of the fees for search, review and/or duplication, 
unless the requester has indicated a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the component shall advise the requester accordingly. If the 
requester is a noncommercial use requester, the notice will specify that 
the requester is entitled to his or her statutory entitlements of 100 
pages of duplication at no charge and, if the requester is charged 
search fees, two hours of search time at no charge, and will advise the 
requester whether those entitlements have been provided. Two hours of 
search time will be provided free of charge to non-commercial requesters 
regardless of whether they agree to pay estimated fees.
    (2) In cases in which a requester has been notified that the actual 
or estimated fees are in excess of $25.00, the request shall not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees he or she is willing to pay, or in the 
case of a noncommercial use requester who has not yet been provided with 
his or her statutory entitlements, designates that he or she seeks only 
that which can be provided by the statutory entitlements. The requester 
must provide the commitment or designation in writing, and must, when 
applicable, designate an exact dollar amount the requester is willing to 
pay. Components are not required to accept payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the component estimates that the total 
fee will exceed that amount, the component will toll the processing of 
the request while it notifies the requester of the estimated fees in 
excess of the amount the requester has indicated a willingness to pay. 
The component shall inquire whether the requester wishes to revise the 
amount of fees he or she is willing to pay and/or modify the request. 
Once the requester responds, the time to respond will resume from where 
it was at the date of the notification.
    (4) Components will make available their FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if a component chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same document, 
or sending records by means other than first class mail.
    (g) Charging interest. Components may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the component. Components will follow the provisions of the 
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, 
and its administrative procedures, including the use of consumer 
reporting agencies, collection agencies, and offset.
    (h) Aggregating requests. When a component reasonably believes that 
a requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, the component may aggregate those requests and charge 
accordingly. Components may presume that multiple requests of this type 
made within a 30-day period have been made in order to avoid fees. For 
requests separated by a longer period, components will aggregate them 
only where there is a reasonable basis for determining that aggregation 
is warranted in view of all the circumstances involved. Multiple 
requests involving unrelated matters will not be aggregated.

[[Page 20]]

    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) and (3) of this section, a component shall not require 
the requester to make an advance payment before work is commenced or 
continued on a request. Payment owed for work already completed (i.e., 
payment before copies are sent to a requester) is not an advance 
payment.
    (2) When a component determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. A component may 
elect to process the request prior to collecting fees when it receives a 
satisfactory assurance of full payment from a requester with a history 
of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any component or agency within 30 calendar days of 
the billing date, a component may require that the requester pay the 
full amount due, plus any applicable interest on that prior request and 
the component may require that the requester make an advance payment of 
the full amount of any anticipated fee, before the component begins to 
process a new request or continues to process a pending request or any 
pending appeal. Where a component has a reasonable basis to believe that 
a requester has misrepresented his or her identity in order to avoid 
paying outstanding fees, it may require that the requester provide proof 
of identity.
    (4) In cases in which a component requires advance payment, the 
request shall not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the component's fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute that 
specifically requires an agency to set and collect fees for particular 
types of records. In instances where records responsive to a request are 
subject to a statutorily-based fee schedule program, the component will 
inform the requester of the contact information for that source.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request shall be furnished without charge or at a 
reduced rate below that established under paragraph (c) of this section, 
where a component determines, on a case-by-case basis, based on all 
available information, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government; and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) In deciding whether disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of operations or activities of the government, 
components will consider the following factors:
    (i) The subject of the request must concern identifiable operations 
or activities of the federal government, with a connection that is 
direct and clear, not remote or attenuated.
    (ii) Disclosure of the requested records must be meaningfully 
informative about government operations or activities in order to be 
``likely to contribute'' to an increased public understanding of those 
operations or activities. The disclosure of information that already is 
in the public domain, in either the same or a substantially identical 
form, would not contribute to such understanding where nothing new would 
be added to the public's understanding.
    (iii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as his or her ability and 
intention to effectively convey information to the public shall be 
considered. It shall be presumed that a representative of the news media 
will satisfy this consideration.

[[Page 21]]

    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent. However, components 
shall not make value judgments about whether the information at issue is 
``important'' enough to be made public.
    (3) To determine whether disclosure of the requested information is 
primarily in the commercial interest of the requester, components will 
consider the following factors:
    (i) Components shall identify any commercial interest of the 
requester, as defined in paragraph (b)(1) of this section, that would be 
furthered by the requested disclosure. Requesters shall be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (ii) A waiver or reduction of fees is justified where the public 
interest is greater than any identified commercial interest in 
disclosure. Components ordinarily shall presume that where a news media 
requester has satisfied the public interest standard, the public 
interest will be the interest primarily served by disclosure to that 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return shall not be 
presumed to primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the component and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester will be required to pay any costs incurred up to the date 
the fee waiver request was received.
    (6) Summary of fees. The following table summarizes the chargeable 
fees (excluding direct fees identified in Sec.  5.11) for each requester 
category.

--------------------------------------------------------------------------------------------------------------------------------------------------------
               Category                                Search fees                        Review fees                      Duplication fees
--------------------------------------------------------------------------------------------------------------------------------------------------------
Commercial-use.......................  Yes.......................................  Yes......................  Yes.
Educational or Non-Commercial          No........................................  No.......................  Yes (100 pages free).
 Scientific Institution.
News Media...........................  No........................................  No.......................  Yes (100 pages free).
Other requesters.....................  Yes (2 hours free)........................  No.......................  Yes (100 pages free).
--------------------------------------------------------------------------------------------------------------------------------------------------------



Sec.  5.12  Confidential commercial information; CBP procedures.

    (a) In general. For purposes of this section, ``commercial 
information'' is defined as trade secret, commercial, or financial 
information obtained from a person. Commercial information provided to 
CBP by a business submitter and that CBP determines is privileged or 
confidential commercial or financial information will be treated as 
privileged or confidential and will not be disclosed pursuant to a 
Freedom of Information Act request or otherwise made known in any manner 
except as provided in this section.
    (b) Notice to business submitters of FOIA requests for disclosure. 
Except as provided in paragraph (b)(2) of this section, CBP will provide 
business submitters with prompt written notice of receipt of FOIA 
requests or appeals that encompass their commercial information. The 
written notice will describe either the exact nature of the commercial 
information requested, or enclose copies of the records or those 
portions of the records that contain the commercial information. The 
written notice also will advise the business submitter of its right to 
file a disclosure objection statement as provided under paragraph (c)(1) 
of this section. CBP will provide notice to business submitters of FOIA 
requests for the business submitter's commercial information for a 
period of not more than 10 years after the date the business submitter 
provides CBP with the information, unless the business submitter 
requests, and provides acceptable justification

[[Page 22]]

for, a specific notice period of greater duration.
    (1) When notice is required. CBP will provide business submitters 
with notice of receipt of a FOIA request or appeal whenever:
    (i) The business submitter has in good faith designated the 
information as commercially- or financially-sensitive information. The 
business submitter's claim of confidentiality should be supported by a 
statement by an authorized representative of the business entity 
providing specific justification that the information in question is 
considered confidential commercial or financial information and that the 
information has not been disclosed to the public; or
    (ii) CBP has reason to believe that disclosure of the commercial 
information could reasonably be expected to cause substantial 
competitive harm.
    (2) When notice is not required. The notice requirements of this 
section will not apply if:
    (i) CBP determines that the commercial information will not be 
disclosed;
    (ii) The commercial information has been lawfully published or 
otherwise made available to the public; or
    (iii) Disclosure of the information is required by law (other than 5 
U.S.C. 552).
    (c) Procedure when notice given--(1) Opportunity for business 
submitter to object to disclosure. A business submitter receiving 
written notice from CBP of receipt of a FOIA request or appeal 
encompassing its commercial information may object to any disclosure of 
the commercial information by providing CBP with a detailed statement of 
reasons within 10 days of the date of the notice (exclusive of 
Saturdays, Sundays, and legal public holidays). The statement should 
specify all the grounds for withholding any of the commercial 
information under any exemption of the FOIA and, in the case of 
Exemption 4, should demonstrate why the information is considered to be 
a trade secret or commercial or financial information that is privileged 
or confidential. The disclosure objection information provided by a 
person pursuant to this paragraph may be subject to disclosure under the 
FOIA.
    (2) Notice to FOIA requester. When notice is given to a business 
submitter under paragraph (b)(1) of this section, notice will also be 
given to the FOIA requester that the business submitter has been given 
an opportunity to object to any disclosure of the requested commercial 
information.
    (d) Notice of intent to disclose. CBP will consider carefully a 
business submitter's objections and specific grounds for nondisclosure 
prior to determining whether to disclose commercial information. 
Whenever CBP decides to disclose the requested commercial information 
over the objection of the business submitter, CBP will provide written 
notice to the business submitter of CBP's intent to disclose, which will 
include:
    (1) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained;
    (2) A description of the commercial information to be disclosed; and
    (3) A specified disclosure date which will not be less than 10 days 
(exclusive of Saturdays, Sundays, and legal public holidays) after the 
notice of intent to disclose the requested information has been issued 
to the business submitter. Except as otherwise prohibited by law, CBP 
will also provide a copy of the notice of intent to disclose to the FOIA 
requester at the same time.
    (e) Notice of FOIA lawsuit. Whenever a FOIA requester brings suit 
seeking to compel the disclosure of commercial information covered by 
paragraph (b)(1) of this section, CBP will promptly notify the business 
submitter in writing.



Sec.  5.13  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.



     Sec. Appendix I to Subpart Ato Part 5--FOIA Contact Information

           Department of Homeland Security Chief FOIA Officer

Chief Privacy Officer/Chief FOIA Officer, The Privacy Office, U.S. 
Department of Homeland Security,245 Murray Lane SW., STOP-0655, 
Washington, DC. 20528-0655

[[Page 23]]

        Department of Homeland Security Deputy Chief FOIA Officer

Deputy Chief FOIA Officer, The Privacy Office, U.S. Department of 
Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-
0655

                    Senior Director, FOIA Operations

Sr. Director, FOIA Operations, The Privacy Office, U.S. Department of 
Homeland Security, 245 Murray Lane SW., STOP-0655, Washington, DC 20528-
0655, Phone: 202-343-1743 or 866-431-0486,Fax: 202-343-4011, Email: 
[email protected]

             Director, FOIA Production and Quality Assurance

Public Liaison, FOIA Production and Quality Assurance, The Privacy 
Office, U.S. Department of Homeland Security,245 Murray Lane SW., STOP-
0655, Washington, DC 20528-0655, Phone: 202-343-1743 or 866-431-0486, 
Fax: 202-343-4011, Email: [email protected]

                 U.S. Customs & Border Protection (CBP)

FOIA Officer/Public Liaison, 90 K Street NE., 9th Floor, Washington, DC 
20229-1181, Phone: 202-325-0150, Fax: 202-325-0230

            Office of Civil Rights and Civil Liberties (CRCL)

FOIA Officer/Public Liaison, U.S. Department of Homeland Security, 
Washington, DC 20528, Phone: 202-357-1218, Email: [email protected]

               Federal Emergency Management Agency (FEMA)

FOIA Officer/Public Liaison, 500 C Street SW., Room 7NE, Washington, DC 
20472, Phone: 202-646-3323,Email: [email protected]

             Federal Law Enforcement Training Center (FLETC)

FOIA Officer/Public Liaison, Building 681, Suite 187B, Glynco, 
GA 31524, Phone: 912-267-3103,Fax: 912-267-3113, Email: fletc-
[email protected]

           National Protection and Programs Directorate (NPPD)

FOIA Officer/Public Liaison, U.S. Department of Homeland Security, 
Washington, DC 20528, Phone: 703-235-2211, Fax: 703-235-2052, Email: 
[email protected]
Office of Biometric Identity Management (OBIM) FOIA Officer, Department 
of Homeland Security, Washington, DC 20598-0628, Phone: 202-298-5454, 
Fax: 202-298-5445, E-Mail: [email protected]

                 Office of Intelligence & Analysis (I&A)

FOIA Officer/Public Liaison, U.S. Department of Homeland Security, 
Washington, DC 20528, Phone: 202-447-4883, Fax: 202-612-1936, Email: 
[email protected]

                    Office of Inspector General (OIG)

FOIA Public Liaison, DHS-OIG Counsel, STOP 0305, 245 Murray Lane SW., 
Washington, DC 20528-0305,Phone: 202-254-4001, Fax: 202-254-4398, Email: 
[email protected]

          Office of Operations Coordination and Planning (OPS)

FOIA Officer/Public Liaison,U.S. Department of Homeland 
Security,Washington, DC 20528,Phone: 202-447-4156,Fax: 202-282-
9811,Email: [email protected]

                 Science & Technology Directorate (S&T)

FOIA Officer/Public Liaison,U.S. Department of Homeland 
Security,Washington, DC 20528,Phone: 202-254-6342,Fax: 202-254-
6739,Email: [email protected]

              Transportation Security Administration (TSA)

FOIA Officer/Public Liaison,Freedom of Information Act Branch,601 S. 
12th Street,11th Floor, East Tower, TSA-20,Arlington, VA 20598-
6020,Phone: 1-866-FOIA-TSA or 571-227-2300,Fax: 571-227-1406,Email: 
[email protected]

             U.S. Citizenship & Immigration Services (USCIS)

FOIA Officer/Public Liaison,National Records Center, FOIA/PA Office,P.O. 
Box 648010,Lee's Summit, Mo. 64064-8010,Phone: 1-800-375-5283 (USCIS 
National Customer Service Unit),Fax: 816-350-5785,Email: 
[email protected]

                    United States Coast Guard (USCG)

Commandant (CG-611),2100 2nd St., SW.,Attn: FOIA Officer/Public 
Liaison,Washington, DC 20593-0001,FOIA Requester Service Center Contact: 
Amanda Ackerson,Phone: 202-475-3522,Fax: 202-475-3927,Email: 
[email protected]

          United States Immigration & Customs Enforcement (ICE)

Freedom of Information Act Office,FOIA Officer/Public Liaison 500 12th 
Street, SW., Stop 5009,Washington, DC 20536-5009,
FOIA Requester Service Center Contact,Phone: 866-633-1182,Fax: 202-732-
4265,Email: [email protected]

                   United States Secret Service (USSS)

Freedom of Information and Privacy Acts Branch,FOIA Officer/Public 
Liaison,245 Murray Drive, Building 410,Washington,

[[Page 24]]

DC 20223,Phone: 202-406-6370,Fax: 202-406-5586,Email: [email protected]

    Please direct all requests for information from the Office of the 
Secretary, Citizenship and Immigration Services Ombudsman, Domestic 
Nuclear Detection Office, Office of the Executive Secretary, Office of 
Intergovernmental Affairs, Management Directorate, Office of Policy, 
Office of the General Counsel, Office of Health Affairs, Office of 
Legislative Affairs, Office of Public Affairs and the Privacy Office, to 
the DHS Privacy Office at:

The Privacy Office,U.S. Department of Homeland Security,245 Murray Lane 
SW.,STOP-0655,Washington, DC 20528-0655,Phone: 202-343-1743 or 866-431-
0486,Fax: 202-343-4011,Email: [email protected]



                          Subpart B_Privacy Act



Sec.  5.20  General provisions.

    (a) Purpose and scope. (1) This subpart contains the rules that the 
Department of Homeland Security (Department) follows under the Privacy 
Act of 1974 (5 U.S.C. 552a). These rules should be read together with 
the Privacy Act, which provides additional information about records 
maintained on individuals. The rules in this subpart apply to all 
records in systems of records maintained by the Department that are 
retrieved by an individual's name or personal identifier. They describe 
the procedures by which individuals may request access to records about 
themselves, request amendment or correction of those records, and 
request an accounting of disclosures of those by the Department. In 
addition, the Department processes all Privacy Act requests for access 
to records under the Freedom of Information Act (FOIA) (5 U.S.C. 552), 
following the rules contained in subpart A of this part, which gives 
requests the benefit of both statutes.
    (2) The provisions established by this subpart shall apply to all 
Department components that are transferred to the Department. Except to 
the extent a Department component has adopted separate guidance under 
the Privacy Act, the provisions of this subpart shall apply to each 
component of the Department. Departmental components may issue their own 
guidance under this subpart pursuant to approval by the Department.
    (b) Definitions. As used in this subpart:
    (1) Component means each separate bureau, office, board, division, 
commission, service, or administration of the Department.
    (2) Request for access to a record means a request made under 
Privacy Act subsection (d)(1).
    (3) Request for amendment or correction of a record means a request 
made under Privacy Act subsection (d)(2).
    (4) Request for an accounting means a request made under Privacy Act 
subsection (c)(3).
    (5) Requester means an individual who makes a request for access, a 
request for amendment or correction, or a request for an accounting 
under the Privacy Act.
    (c) Authority to request records for a law enforcement purpose. The 
head of a component or designee thereof is authorized to make written 
requests under subsection (b)(7) of the Privacy Act for records 
maintained by other agencies that are necessary to carry out an 
authorized law enforcement activity.
    (d) Notice on Departmental use of (b)(1) exemption. As a general 
matter, when applying the (b)(1) exemption for disclosures within an 
agency on a need to know basis, the Department will consider itself a 
single entity, meaning that information may be disclosed between 
components of the Department under the (b)(1) exemption.
    (e) Interim Retention of Authorities. As an interim solution, all 
agencies and components under the Department will retain the necessary 
authority from their original purpose in order to conduct these 
necessary activities. This includes the authority to maintain Privacy 
Act systems of records, disseminate information pursuant to existing or 
new routine uses, and retention of exemption authorities under sections 
(j) and (k) of the Privacy Act, where applicable. This retention of an 
agency or component's authorities and information practices will remain 
in effect until this regulation is promulgated as a final rule, or the 
Department revises all systems of records notices. This retention of 
authority is necessary to allow components to fulfill their mission and 
purpose during the transition

[[Page 25]]

period of the establishment of the Department. During this transition 
period, the Department shall evaluate with the components the existing 
authorities and information practices and determine what revisions (if 
any) are appropriate and should be made to these existing authorities 
and practices. The Department anticipates that such revisions will be 
made either through the issuance of a revised system of records notices 
or through subsequent final regulations.



Sec.  5.21  Requests for access to records.

    (a) How made and addressed. You may make a request for access to a 
Department of Homeland Security record about yourself by appearing in 
person or by writing directly to the Department component that maintains 
the record. Your request should be sent or delivered to the component's 
Privacy Act office at the address listed in appendix A to this part. In 
most cases, a component's central Privacy Act office is the place to 
send a Privacy Act request. For records held by a field office of the 
U.S. Customs Service, U.S. Secret Service, U.S. Coast Guard, or any 
other Department component with field offices, however, you must write 
directly to that Customs, Secret Service, Coast Guard, or other field 
office address, which can be found in most telephone books or by calling 
the component's central Privacy Act office. (The functions of each 
component are summarized elsewhere in this title and in the description 
of the Department and its components in the ``United States Government 
Manual,'' which is issued annually and is available in most libraries, 
as well as for sale from the Government Printing Office's Superintendent 
of Documents. This manual also can be accessed electronically at the 
Government Printing Office's World Wide Web site (which can be found at 
http://www.access.gpo.gov/su--docs). Some records are maintained under a 
government-wide systems of records notice, for example, Official 
Personnel Files are maintained under the authority of the Office of 
Personnel Management. In order to access records maintained under a 
government-wide notice, please send your request to the Privacy Act 
office of the original department or agency from which the component was 
transferred to the Department. If you cannot determine where within the 
Department to send your request, you may send it to the Departmental 
Disclosure Officer, Department of Homeland Security, Washington, DC 
20528, and that office will forward it to the component(s) it believes 
most likely to have the records that you seek. For the quickest possible 
handling, you should mark both your request letter and the envelope 
``Privacy Act Request.''
    (b) Description of records sought. You must describe the records 
that you want in enough detail to enable Department personnel to locate 
the system of records containing them with a reasonable amount of 
effort. Whenever possible, your request should describe the records 
sought, the time periods in which you believe they were compiled, and 
the name or identifying number of each system of records in which you 
believe they are kept. The Department publishes notices in the Federal 
Register that describe its components' systems of records. A description 
of the Department's systems of records also may be found as part of the 
``Privacy Act Compilation'' published by the National Archives and 
Records Administration's Office of the Federal Register. This 
compilation is available in most large reference and university 
libraries. This compilation also can be accessed electronically at the 
Government Printing Office's World Wide Web site (which can be found at 
http://www.access.gpo.gov/su--docs).
    (c) Agreement to pay fees. If you make a Privacy Act request for 
access to records, it shall be considered an agreement by you to pay all 
applicable fees charged under Sec.  5.29, up to $25.00. The component 
responsible for responding to your request ordinarily shall confirm this 
agreement in an acknowledgement letter. When making a request, you may 
specify a willingness to pay a greater or lesser amount.
    (d) Verification of identity. When you make a request for access to 
records about yourself, you must verify your identity. You must state 
your full name, current address, and date and place of birth. You must 
sign your request and your signature must either

[[Page 26]]

be notarized or submitted by you under 28 U.S.C. 1746, a law that 
permits statements to be made under penalty of perjury as a substitute 
for notarization. While no specific form is required, you may obtain 
forms for this purpose from the Departmental Disclosure Officer, 
Department of Homeland Security, Washington, DC 20528. In order to help 
the identification and location of requested records, you may also, at 
your option, include your social security number.
    (e) Verification of guardianship. When making a request as the 
parent or guardian of a minor or as the guardian of someone determined 
by a court to be incompetent, for access to records about that 
individual, you must establish:
    (1) The identity of the individual who is the subject of the record, 
by stating the name, current address, date and place of birth, and, at 
your option, the social security number of the individual;
    (2) Your own identity, as required in paragraph (d) of this section;
    (3) That you are the parent or guardian of that individual, which 
you may prove by providing a copy of the individual's birth certificate 
showing your parentage or by providing a court order establishing your 
guardianship; and
    (4) That you are acting on behalf of that individual in making the 
request.
    (f) Verification in the case of third party information requests. If 
you are making a request for records concerning an individual on behalf 
of that individual, you must provide a statement from the individual 
verifying the identity of the individual as provided in paragraph (d) of 
this section. You must also provide a statement from the individual 
certifying the individual's agreement that records concerning the 
individual may be released to you.



Sec.  5.22  Responsibility for responding to requests for access to records.

    (a) In general. Except as stated in paragraphs (c), (d), and (e) of 
this section, the component that first receives a request for access to 
a record, and has possession of that record, is the component 
responsible for responding to the request. In determining which records 
are responsive to a request, a component ordinarily shall include only 
those records in its possession as of the date the component begins its 
search for them. If any other date is used, the component shall inform 
the requester of that date.
    (b) Authority to grant or deny requests. The head of a component, or 
the component head's designee, is authorized to grant or deny any 
request for access or amendment to a record of that component.
    (c) Consultations and referrals. When a component receives a request 
for access to a record in its possession, it shall determine whether 
another component, or another agency of the Federal Government, is 
better able to determine whether the record is exempt from access under 
the Privacy Act. If the receiving component determines that it is best 
able to process the record in response to the request, then it shall do 
so. If the receiving component determines that it is not best able to 
process the record, then it shall either:
    (1) Respond to the request regarding that record, after consulting 
with the component or agency best able to determine whether the record 
is exempt from access and with any other component or agency that has a 
substantial interest in it; or
    (2) Refer the responsibility for responding to the request regarding 
that record to the component best able to determine whether it is exempt 
from access, or to another agency that originated the record (but only 
if that agency is subject to the Privacy Act). Ordinarily, the component 
or agency that originated a record will be presumed to be best able to 
determine whether it is exempt from access.
    (d) Law enforcement information. Whenever a request is made for 
access to a record containing information that relates to an 
investigation of a possible violation of law and that was originated by 
another component or agency, the receiving component shall either refer 
the responsibility for responding to the request regarding that 
information to that other component or agency or shall consult with that 
other component or agency.
    (e) Classified information. Whenever a request is made for access to 
a record

[[Page 27]]

containing information that has been classified by or may be appropriate 
for classification by another component or agency under Executive Order 
12958 or any other executive order concerning the classification of 
records, the receiving component shall refer the responsibility for 
responding to the request regarding that information to the component or 
agency that classified the information, should consider the information 
for classification, or has the primary interest in it, as appropriate. 
Whenever a record contains information that has been derivatively 
classified by a component because it contains information classified by 
another component or agency, the component shall refer the 
responsibility for responding to the request regarding that information 
to the component or agency that classified the underlying information.
    (f) Release of Medical Records. Pursuant to 5 U.S.C. 552a(f)(3), 
where requests are made for access to medical records, including 
psychological records, the decision to release directly to the 
individual, or to withhold direct release, shall be made by a medical 
practitioner. Where the medical practitioner has ruled that direct 
release will cause harm to the individual who is requesting access, 
normal release through the individual's chosen medical practitioner will 
be recommended. Final review and decision on appeals of disapprovals of 
direct release will rest with the General Counsel.
    (g) Notice of referral. Whenever a component refers all or any part 
of the responsibility for responding to a request to another component 
or agency, it ordinarily shall notify the requester of the referral and 
inform the requester of the name of each component or agency to which 
the request has been referred and of the part of the request that has 
been referred.
    (h) Timing of responses to consultations and referrals. All 
consultations and referrals shall be handled according to the date the 
Privacy Act access request was initially received by the first component 
or agency, not any later date.
    (i) Agreements regarding consultations and referrals. Components may 
make agreements with other components or agencies to eliminate the need 
for consultations or referrals for particular types of records.



Sec.  5.23  Responses to requests for access to records.

    (a) Acknowledgements of requests. On receipt of a request, a 
component ordinarily shall send an acknowledgement letter to the 
requester which shall confirm the requester's agreement to pay fees 
under Sec.  5.21(c) and provide an assigned request number for further 
reference.
    (b) Grants of requests for access. Once a component makes a 
determination to grant a request for access in whole or in part, it 
shall notify the requester in writing. The component shall inform the 
requester in the notice of any fee charged under Sec.  5.29 and shall 
disclose records to the requester promptly on payment of any applicable 
fee. If a request is made in person, the component may disclose records 
to the requester directly, in a manner not unreasonably disruptive of 
its operations, on payment of any applicable fee and with a written 
record made of the grant of the request. If a requester is accompanied 
by another person, the requester shall be required to authorize in 
writing any discussion of the records in the presence of the other 
person.
    (c) Adverse determinations of requests for access. A component 
making an adverse determination denying a request for access in any 
respect shall notify the requester of that determination in writing. 
Adverse determinations, or denials of requests, consist of: a 
determination to withhold any requested record in whole or in part; a 
determination that a requested record does not exist or cannot be 
located; a determination that what has been requested is not a record 
subject to the Privacy Act; a determination on any disputed fee matter; 
and a denial of a request for expedited treatment. The notification 
letter shall be signed by the head of the component, or the component 
head's designee, and shall include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reason(s) for the denial, including any 
Privacy Act exemption(s) applied by the component in denying the 
request; and

[[Page 28]]

    (3) A statement that the denial may be appealed under Sec.  5.25(a) 
and a description of the requirements of Sec.  5.25(a).



Sec.  5.24  Classified information.

    In processing a request for access to a record containing 
information that is classified under Executive Order 12958 or any other 
executive order, the originating component shall review the information 
to determine whether it should remain classified. Information determined 
to no longer require classification shall not be withheld from a 
requester on the basis of Exemption (k)(1) of the Privacy Act. On 
receipt of any appeal involving classified information, the Associate 
General Counsel (General Law), shall take appropriate action to ensure 
compliance with part 7 of this title.



Sec.  5.25  Appeals.

    (a) Appeals. If you are dissatisfied with a component's response to 
your request for access to records, you may appeal an adverse 
determination denying your request in any respect to the Associate 
General Counsel (General Law), Department of Homeland Security, 
Washington, DC 20528. You must make your appeal in writing and it must 
be received by the Associate General Counsel (General Law) within 60 
days of the date of the letter denying your request. Your appeal letter 
may include as much or as little related information as you wish, as 
long as it clearly identifies the component determination (including the 
assigned request number, if known) that you are appealing. For the 
quickest possible handling, you should mark both your appeal letter and 
the envelope ``Privacy Act Appeal.''
    (b) Responses to appeals. The decision on your appeal will be made 
in writing. A decision affirming an adverse determination in whole or in 
part will include a brief statement of the reason(s) for the affirmance, 
including any Privacy Act exemption applied, and will inform you of the 
Privacy Act provisions for court review of the decision. If the adverse 
determination is reversed or modified on appeal in whole or in part, you 
will be notified in a written decision and your request will be 
reprocessed in accordance with that appeal decision. An adverse 
determination by the Associate General Counsel (General Law) will be the 
final action of the Department.
    (c) When appeal is required. If you wish to seek review by a court 
of any adverse determination or denial of a request, you must first 
appeal it under this section. An appeal will not be acted on if the 
request becomes a matter of litigation.



Sec.  5.26  Requests for amendment or correction of records.

    (a) How made and addressed. Unless the record is not subject to 
amendment or correction as stated in paragraph (f) of this section, you 
may make a request for amendment or correction of a record of the 
Department about you by writing directly to the Department component 
that maintains the record, following the procedures in Sec.  5.21. Your 
request should identify each particular record in question, state the 
amendment or correction that you want, and state why you believe that 
the record is not accurate, relevant, timely, or complete. You may 
submit any documentation that you think would be helpful. If you believe 
that the same record is in more than one system of records, you should 
state that and address your request to each component that maintains a 
system of records containing the record.
    (b) Component responses. Within ten working days of receiving your 
request for amendment or correction of records, a component shall send 
you a written acknowledgment of its receipt of your request, and it 
shall promptly notify you whether your request is granted or denied. If 
the component grants your request in whole or in part, it shall describe 
the amendment or correction made and shall advise you of your right to 
obtain a copy of the corrected or amended record, in disclosable form. 
If the component denies your request in whole or in part, it shall send 
you a letter signed by the head of the component, or the component 
head's designee, that shall state:
    (1) The reason(s) for the denial; and
    (2) The procedure for appeal of the denial under paragraph (c) of 
this section, including the name and business

[[Page 29]]

address of the official who will act on your appeal.
    (c) Appeals. You may appeal a denial of a request for amendment or 
correction to the Associate General Counsel (General Law) in the same 
manner as a denial of a request for access to records (see Sec.  5.25) 
and the same procedures shall be followed. If your appeal is denied, you 
shall be advised of your right to file a Statement of Disagreement as 
described in paragraph (d) of this section and of your right under the 
Privacy Act for court review of the decision.
    (d) Statements of Disagreement. If your appeal under this section is 
denied in whole or in part, you have the right to file a Statement of 
Disagreement that states your reason(s) for disagreeing with the 
Department's denial of your request for amendment or correction. 
Statements of Disagreement must be concise, must clearly identify each 
part of any record that is disputed, and should be no longer than one 
typed page for each fact disputed. Your Statement of Disagreement must 
be sent to the component involved, which shall place it in the system of 
records in which the disputed record is maintained and shall mark the 
disputed record to indicate that a Statement of Disagreement has been 
filed and where in the system of records it may be found.
    (e) Notification of amendment/correction or disagreement. Within 30 
working days of the amendment or correction of a record, the component 
that maintains the record shall notify all persons, organizations, or 
agencies to which it previously disclosed the record, if an accounting 
of that disclosure was made, that the record has been amended or 
corrected. If an individual has filed a Statement of Disagreement, the 
component shall append a copy of it to the disputed record whenever the 
record is disclosed and may also append a concise statement of its 
reason(s) for denying the request to amend or correct the record.
    (f) Records not subject to amendment or correction. The following 
records are not subject to amendment or correction:
    (1) Transcripts of testimony given under oath or written statements 
made under oath;
    (2) Transcripts of grand jury proceedings, judicial proceedings, or 
quasi-judicial proceedings, which are the official record of those 
proceedings;
    (3) Presentence records that originated with the courts; and
    (4) Records in systems of records that have been exempted from 
amendment and correction under Privacy Act (5 U.S.C. 552a(j) or (k)) by 
notice published in the Federal Register.



Sec.  5.27  Requests for an accounting of record disclosures.

    (a) How made and addressed. Except where accountings of disclosures 
are not required to be kept (as stated in paragraph (b) of this 
section), you may make a request for an accounting of any disclosure 
that has been made by the Department to another person, organization, or 
agency of any record about you. This accounting contains the date, 
nature, and purpose of each disclosure, as well as the name and address 
of the person, organization, or agency to which the disclosure was made. 
Your request for an accounting should identify each particular record in 
question and should be made by writing directly to the Department 
component that maintains the record, following the procedures in Sec.  
5.21.
    (b) Where accountings are not required. Components are not required 
to provide accountings to you where they relate to:
    (1) Disclosures for which accountings are not required to be kept, 
such as disclosures that are made to employees within the agency and 
disclosures that are made under the FOIA;
    (2) Disclosures made to law enforcement agencies for authorized law 
enforcement activities in response to written requests from those law 
enforcement agencies specifying the law enforcement activities for which 
the disclosures are sought; or
    (3) Disclosures made from law enforcement systems of records that 
have been exempted from accounting requirements.
    (c) Appeals. You may appeal a denial of a request for an accounting 
to the Associate General Counsel (General

[[Page 30]]

Law) in the same manner as a denial of a request for access to records 
(see Sec.  5.25) and the same procedures will be followed.



Sec.  5.28  Preservation of records.

    Each component will preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the Act.



Sec.  5.29  Fees.

    (a) Components shall charge fees for duplication of records under 
the Privacy Act in the same way in which they charge duplication fees 
under Sec.  5.11.
    (b) The Department shall not process a request under the Privacy Act 
from persons with an unpaid fee from any previous Privacy Act request to 
any Federal agency until that outstanding fee has been paid in full to 
the agency.



Sec.  5.30  Notice of court-ordered and emergency disclosures.

    (a) Court-ordered disclosures. When a record pertaining to an 
individual is required to be disclosed by a court order, the component 
shall make reasonable efforts to provide notice of this to the 
individual. Notice shall be given within a reasonable time after the 
component's receipt of the order, except that in a case in which the 
order is not a matter of public record, the notice shall be given only 
after the order becomes public. This notice shall be mailed to the 
individual's last known address and shall contain a copy of the order 
and a description of the information disclosed. Notice shall not be 
given if disclosure is made from a criminal law enforcement system of 
records that has been exempted from the notice requirement.
    (b) Emergency disclosures. Upon disclosing a record pertaining to an 
individual made under compelling circumstances affecting health or 
safety, the component shall notify that individual of the disclosure. 
This notice shall be mailed to the individual's last known address and 
shall state the nature of the information disclosed; the person, 
organization, or agency to which it was disclosed; the date of 
disclosure; and the compelling circumstances justifying the disclosure.



Sec.  5.31  Security of systems of records.

    (a) In general. Each component shall establish administrative and 
physical controls to prevent unauthorized access to its systems of 
records, to prevent unauthorized disclosure of records, and to prevent 
physical damage to or destruction of records. The stringency of these 
controls shall correspond to the sensitivity of the records that the 
controls protect. At a minimum, each component's administrative and 
physical controls shall ensure that:
    (1) Records are protected from public view;
    (2) The area in which records are kept is supervised during business 
hours to prevent unauthorized persons from having access to them;
    (3) Records are inaccessible to unauthorized persons outside of 
business hours; and
    (4) Records are not disclosed to unauthorized persons or under 
unauthorized circumstances in either oral or written form.
    (b) Procedures required. Each component shall have procedures that 
restrict access to records to only those individuals within the 
Department who must have access to those records in order to perform 
their duties and that prevent inadvertent disclosure of records.



Sec.  5.32  Contracts for the operation of record systems.

    Under 5 U.S.C. 552a(m), any approved contract for the operation of a 
record system will contain the standard contract requirements issued by 
the General Services Administration to ensure compliance with the 
requirements of the Privacy Act for that record system. The contracting 
component will be responsible for ensuring that the contractor complies 
with these contract requirements.

[[Page 31]]



Sec.  5.33  Use and collection of social security numbers.

    Each component shall ensure that employees authorized to collect 
information are aware:
    (a) That individuals may not be denied any right, benefit, or 
privilege as a result of refusing to provide their social security 
numbers, unless the collection is authorized either by a statute or by a 
regulation issued prior to 1975; and
    (b) That individuals requested to provide their social security 
numbers must be informed of:
    (1) Whether providing social security numbers is mandatory or 
voluntary;
    (2) Any statutory or regulatory authority that authorizes the 
collection of social security numbers; and
    (3) The uses that will be made of the numbers.



Sec.  5.34  Standards of conduct for administration of the Privacy Act.

    Each component will inform its employees of the provisions of the 
Privacy Act, including the Act's civil liability and criminal penalty 
provisions. Unless otherwise permitted by law, the Department shall:
    (a) Collect from individuals only the information that is relevant 
and necessary to discharge the responsibilities of the Department;
    (b) Collect information about an individual directly from that 
individual whenever practicable and when the information may result in 
adverse determinations about an individual's rights, benefits, and 
privileges under federal programs;
    (c) Inform each individual from whom information is collected of:
    (1) The legal authority to collect the information and whether 
providing it is mandatory or voluntary;
    (2) The principal purpose for which the Department intends to use 
the information;
    (3) The routine uses the Department may make of the information; and
    (4) The effects on the individual, if any, of not providing the 
information;
    (d) Ensure that the component maintains no system of records without 
public notice and that it notifies appropriate Department officials of 
the existence or development of any system of records that is not the 
subject of a current or planned public notice;
    (e) Maintain all records that are used by the Department in making 
any determination about an individual with such accuracy, relevance, 
timeliness, and completeness as is reasonably necessary to ensure 
fairness to the individual in the determination;
    (f) Except as to disclosures made to an agency or made under the 
FOIA, make reasonable efforts, prior to disseminating any record about 
an individual, to ensure that the record is accurate, relevant, timely, 
and complete;
    (g) Maintain no record describing how an individual exercises his or 
her First Amendment rights, unless it is expressly authorized by statute 
or by the individual about whom the record is maintained, or is 
pertinent to and within the scope of an authorized law enforcement 
activity;
    (h) When required by the Privacy Act, maintain an accounting in the 
specified form of all disclosures of records by the Department to 
persons, organizations, or agencies;
    (i) Maintain and use records with care to prevent the unauthorized 
or inadvertent disclosure of a record to anyone.



Sec.  5.35  Sanctions and penalties.

    Under the provisions of the Privacy Act, 5 U.S.C. 552a, civil and 
criminal penalties may be assessed.



Sec.  5.36  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under the Privacy Act.



            Subpart C_Disclosure of Information in Litigation

    Source: 68 FR 4070, Jan. 27, 2003, unless otherwise noted.



Sec.  5.41  Purpose and scope; definitions.

    (a) This subpart C sets forth the procedures to be followed with 
respect to:
    (1) Service of summonses and complaints or other requests or demands 
directed to the Department of Homeland Security (Department) or to any

[[Page 32]]

Department employee or former employee in connection with federal or 
state litigation arising out of or involving the performance of official 
activities of the Department; and
    (2) The oral or written disclosure, in response to subpoenas, 
orders, or other requests or demands of federal or state judicial or 
quasi-judicial or administrative authority as well as state legislative 
authorities (collectively, ``demands''), whether civil or criminal in 
nature, or in response to requests for depositions, affidavits, 
admissions, responses to interrogatories, document production, 
interviews, or other litigation-related matters, including pursuant to 
the Federal Rules of Civil Procedure, the Federal Rules of Criminal 
Procedure, or applicable state rules (collectively, ``requests''), of 
any material contained in the files of the Department, any information 
relating to material contained in the files of the Department, or any 
information acquired while the subject of the demand or request is or 
was employed by the Department, or served as Secretary of the 
Department, as part of the performance of that person's duties or by 
virtue of that person's official status.
    (b) The provisions established by this subpart shall apply to all 
Department components that are transferred to the Department. Except to 
the extent a Department component has adopted separate guidance 
governing the subject matter of a provision of this subpart, the 
provisions of this subpart shall apply to each component of the 
Department. Departmental components may issue their own guidance under 
this subpart subject to the approval of the General Counsel of the 
Department.
    (c) For purposes of this subpart, and except as the Department may 
otherwise determine in a particular case, the term employee includes all 
former Secretaries of Homeland Security and all employees of the 
Department of Homeland Security or other federal agencies who are or 
were appointed by, or subject to the supervision, jurisdiction, or 
control of the Secretary of Homeland Security, whether residing or 
working in the United States or abroad, including United States 
nationals, foreign nationals, and contractors. The procedures 
established within this subpart also apply to former employees of the 
Department where specifically noted.
    (d) For purposes of this subpart, the term litigation encompasses 
all pre-trial, trial, and post-trial stages of all judicial or 
administrative actions, hearings, investigations, or similar proceedings 
before courts, commissions, boards (including the Board of Appellate 
Review), grand juries, or other judicial or quasi-judicial bodies or 
tribunals, whether criminal, civil, or administrative in nature. This 
subpart governs, inter alia, responses to discovery requests, 
depositions, and other pre-trial, trial, or post-trial proceedings, as 
well as responses to informal requests by attorneys or others in 
situations involving litigation. However, this subpart shall not apply 
to any claims against the Department by Department of Homeland Security 
employees (present or former), or applicants for Department employment, 
for which jurisdiction resides with the U.S. Equal Employment 
Opportunity Commission; the U.S. Merit Systems Protection Board; the 
Office of Special Counsel; the Federal Labor Relations Authority; the 
Foreign Service Labor Relations Board; the Foreign Service Grievance 
Board; or a labor arbitrator operating under a collective bargaining 
agreement between the Department and a labor organization representing 
Department employees; or their successor agencies or entities.
    (e) For purposes of this subpart, official information means all 
information of any kind, however stored, that is in the custody and 
control of the Department, relates to information in the custody and 
control of the Department, or was acquired by Department employees, or 
former employees, as part of their official duties or because of their 
official status within the Department while such individuals were 
employed by or served on behalf of the Department.
    (f) Nothing in this subpart affects disclosure of information under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5 
U.S.C. 552a, Executive Order 12958 on national security information (3 
CFR, 1995 Comp., p. 333), the Government in the Sunshine Act, 5 U.S.C. 
552b, the Department's implementing regulations

[[Page 33]]

or pursuant to congressional subpoena. Nothing in this subpart permits 
disclosure of information by the Department, its present and former 
employees, or the Secretary, that is protected or prohibited by statute 
or other applicable law.
    (g) This subpart is intended only to inform the public about 
Department procedures concerning the service of process and responses to 
demands or requests and is not intended to and does not create, and may 
not be relied upon to create any right or benefit, substantive or 
procedural, enforceable at law by a party against the Department or the 
United States.
    (h) Nothing in this subpart affects the rules and procedures, under 
applicable U.S. law and international conventions, governing diplomatic 
and consular immunity.
    (i) Nothing in this subpart affects the disclosure of official 
information to other federal agencies or Department of Justice attorneys 
in connection with litigation conducted on behalf or in defense of the 
United States, its agencies, officers, and employees, or litigation in 
which the United States has an interest; or to federal, state, local, or 
foreign prosecuting and law enforcement authorities in conjunction with 
criminal law enforcement investigations, prosecutions, or other 
proceedings, e.g., extradition, deportation.



Sec.  5.42  Service of summonses and complaints.

    (a) Only the Office of the General Counsel is authorized to receive 
and accept on behalf of the Department summonses or complaints sought to 
be served upon the Department, the Secretary, or Department employees. 
All such documents should be delivered or addressed to the Office of the 
General Counsel, United States Department of Homeland Security, 
Washington, DC, 20528. The authorization for receipt shall in no way 
affect the requirements of service elsewhere provided in applicable 
rules and regulations.
    (b) In the event any summons or complaint described in Sec.  5.41(a) 
is delivered to an employee of the Department other than in the manner 
specified in this part, the recipient thereof shall decline to accept 
the proffered service and may notify the person attempting to make 
service of the Departmental regulations set forth herein.
    (c) Except as otherwise provided Sec. Sec.  5.42(d) and 5.43(c), the 
Department is not an authorized agent for service of process with 
respect to civil litigation against Department employees purely in their 
personal, non-official capacity. Copies of summonses or complaints 
directed to Department employees in connection with legal proceedings 
arising out of the performance of official duties may, however, be 
served upon the Office of the General Counsel.
    (d) Although the Department is not an agent for the service of 
process upon its employees with respect to purely personal, non-official 
litigation, the Department recognizes that its employees should not use 
their official positions to evade their personal obligations and will, 
therefore, counsel and encourage Department employees to accept service 
of process in appropriate cases.
    (e) Documents for which the Office of the General Counsel accepts 
service in official capacity only shall be stamped ``Service Accepted in 
Official Capacity Only''. Acceptance of service shall not constitute an 
admission or waiver with respect to jurisdiction, propriety of service, 
improper venue, or any other defense in law or equity available under 
applicable laws or rules.



Sec.  5.43  Service of subpoenas, court orders, and other demands or requests for official information or action.

    (a) Except in cases in which the Department is represented by legal 
counsel who have entered an appearance or otherwise given notice of 
their representation, only the Office of the General Counsel is 
authorized to receive and accept subpoenas, or other demands or requests 
directed to the Secretary, the Department, or any component thereof, or 
its employees, whether civil or criminal in nature, for:
    (1) Material, including documents, contained in the files of the 
Department;
    (2) Information, including testimony, affidavits, declarations, 
admissions, responses to interrogatories, or informal

[[Page 34]]

statements, relating to material contained in the files of the 
Department or which any Department employee acquired in the course and 
scope of the performance of his official duties;
    (3) Garnishment or attachment of compensation of current or former 
employees; or
    (4) The performance or non-performance of any official Department 
duty.
    (b) In the event that any subpoena, demand, or request is sought to 
be delivered to a Department employee other than in the manner 
prescribed in paragraph (a) of this section, such employee shall, after 
consultation with the Office of the General Counsel, decline service and 
direct the server of process to the Departmental regulations. If the 
subpoena, demand, or other request is nonetheless delivered to the 
employee, the employee shall immediately forward a copy of that document 
to the Office of the General Counsel.
    (c) Except as otherwise provided in this subpart, the Department is 
not an agent for service, or otherwise authorized to accept on behalf of 
its employees, any subpoenas, show-cause orders, or similar compulsory 
process of federal or state courts, or requests from private individuals 
or attorneys, which are not related to the employees' official duties 
except upon the express, written authorization of the individual 
Department employee to whom such demand or request is directed.
    (d) Acceptance of such documents by the Office of the General 
Counsel does not constitute a waiver of any defenses that might 
otherwise exist with respect to service under the Federal Rules of Civil 
or Criminal Procedure or other applicable rules.
    (e) Copies of any subpoenas, show cause orders, or similar 
compulsory process of federal or state courts, or requests from private 
individuals or attorneys, directed to former employees of the Department 
in connection with legal proceedings arising out of the performance of 
official duties shall also be served upon the Office of the General 
Counsel. The Department shall not, however, serve as an agent for 
service for the former employee, nor is the Department otherwise 
authorized to accept service on behalf of its former employees. If the 
demand involves their official duties, former employees who receive 
subpoenas, show cause orders, or similar compulsory process of federal 
or state courts should also notify in the component of the Department in 
which they were employed if the service involves their official duties 
while so employed.
    (f) If the subpoena, demand, or other request is nonetheless 
delivered to the employee, the employee shall immediately forward a copy 
of that document to the Office of the General Counsel.



Sec.  5.44  Testimony and production of documents prohibited unless approved by appropriate Department officials.

    (a) No employee, or former employee, of the Department shall, in 
response to a demand or request, including in connection with any 
litigation, provide oral or written testimony by deposition, 
declaration, affidavit, or otherwise concerning any information acquired 
while such person is or was an employee of the Department as part of the 
performance of that person's official duties or by virtue of that 
person's official status, unless authorized to do so by the Office of 
the General Counsel, or as authorized in Sec.  5.44(b).
    (b) No employee, or former employee, shall, in response to a demand 
or request, including in connection with any litigation, produce any 
document or any material acquired as part of the performance of that 
employee's duties or by virtue of that employee's official status, 
unless authorized to do so by the Office of the General Counsel or the 
delegates thereof, as appropriate.



Sec.  5.45  Procedure when testimony or production of documents is sought; general.

    (a) If official information is sought, through testimony or 
otherwise, by a request or demand, the party seeking such release or 
testimony must (except as otherwise required by federal law or 
authorized by the Office of the General Counsel) set forth in writing, 
and with as much specificity as possible, the nature and relevance of 
the official information sought. Where documents or other materials are 
sought, the party should provide a description using the

[[Page 35]]

types of identifying information suggested in Sec.  5.3(b). Subject to 
Sec.  5.47, Department employees may only produce, disclose, release, 
comment upon, or testify concerning those matters which were specified 
in writing and properly approved by the appropriate Department official 
designated in Sec.  5.44. See United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951). The Office of the General Counsel may waive the 
requirement of this subsection in appropriate circumstances.
    (b) To the extent it deems necessary or appropriate, the Department 
may also require from the party seeking such testimony or documents a 
plan of all reasonably foreseeable demands, including but not limited to 
the names of all employees and former employees from whom discovery will 
be sought, areas of inquiry, expected duration of proceedings requiring 
oral testimony, and identification of potentially relevant documents.
    (c) The appropriate Department official designated in Sec.  5.42 
will notify the Department employee and such other persons as 
circumstances may warrant of its decision regarding compliance with the 
request or demand.
    (d) The Office of the General Counsel will consult with the 
Department of Justice regarding legal representation for Department 
employees in appropriate cases.



Sec.  5.46  Procedure when response to demand is required prior to receiving instructions.

    (a) If a response to a demand is required before the appropriate 
Department official designated in Sec.  5.44 renders a decision, the 
Department, if necessary, will request that the Department of Justice or 
the appropriate Department attorney take appropriate steps to stay, 
postpone, or obtain relief from the demand pending decision. If 
necessary, the attorney will:
    (1) Appear with the employee upon whom the demand has been made;
    (2) Furnish the court or other authority with a copy of the 
regulations contained in this subpart;
    (3) Inform the court or other authority that the demand has been, or 
is being, as the case may be, referred for the prompt consideration of 
the appropriate Department official; and
    (4) Respectfully request the court or authority to stay the demand 
pending receipt of the requested instructions.
    (b) In the event that an immediate demand for production or 
disclosure is made in circumstances which would preclude the proper 
designation or appearance of a Department of Justice or appropriate 
Department attorney on the employee's behalf, the employee, if 
necessary, shall respectfully request from the demanding court or 
authority for a reasonable stay of proceedings for the purpose of 
obtaining instructions from the Department.



Sec.  5.47  Procedure in the event of an adverse ruling.

    If a stay of, or other relief from, the effect of the demand in 
response to a request made pursuant to Sec.  5.46 is declined or not 
obtained, or if the court or other judicial or quasi-judicial authority 
declines to stay the effect of the demand in response to a request made 
pursuant to Sec.  5.46, or if the court or other authority rules that 
the demand must be complied with irrespective of the Department's 
instructions not to produce the material or disclose the information 
sought, the employee upon whom the demand has been made shall 
respectfully decline to comply with the demand, citing this subpart and 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).



Sec.  5.48  Considerations in determining whether the Department will comply with a demand or request.

    (a) In deciding whether to comply with a demand or request, 
Department officials and attorneys shall consider, among any other 
pertinent considerations:
    (1) Whether such compliance would be unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand arose;
    (2) Whether compliance is appropriate under the relevant substantive 
law concerning privilege or disclosure of information;
    (3) The public interest;

[[Page 36]]

    (4) The need to conserve the time of Department employees for the 
conduct of official business;
    (5) The need to avoid spending the time and money of the United 
States for private purposes;
    (6) The need to maintain impartiality between private litigants in 
cases where a substantial government interest is not implicated;
    (7) Whether compliance would have an adverse effect on performance 
by the Department of its mission and duties; and
    (8) The need to avoid involving the Department in controversial 
issues not related to its mission.
    (b) Among those demands and requests in response to which compliance 
will not ordinarily be authorized are those with respect to which any of 
the following factors, inter alia, exist:
    (1) Compliance would violate a statute or a rule of procedure;
    (2) Compliance would violate a specific regulation or Executive 
order;
    (3) Compliance would reveal information properly classified in the 
interest of national security;
    (4) Compliance would reveal confidential commercial or financial 
information or trade secrets without the owner's consent;
    (5) Compliance would reveal the internal deliberative processes of 
the Executive Branch; or
    (6) Compliance would potentially impede or prejudice an on-going law 
enforcement investigation.



Sec.  5.49  Prohibition on providing expert or opinion testimony.

    (a) Except as provided in this section, and subject to 5 CFR 
2635.805, Department employees shall not provide opinion or expert 
testimony based upon information which they acquired in the scope and 
performance of their official Department duties, except on behalf of the 
United States or a party represented by the Department of Justice.
    (b) Any expert or opinion testimony by a former employee of the 
Department shall be excepted from 5.49(a) where the testimony involves 
only general expertise gained while employed at the Department.
    (c) Upon a showing by the requestor of exceptional need or unique 
circumstances and that the anticipated testimony will not be adverse to 
the interests of the United States, the appropriate Department official 
designated in Sec.  5.44 may, consistent with 5 CFR 2635.805, in their 
discretion and with the concurrence of the Office of the General 
Counsel, grant special, written authorization for Department employees, 
or former employees, to appear and testify as expert witnesses at no 
expense to the United States.
    (d) If, despite the final determination of the appropriate 
Department official designated in Sec.  5.44, a court of competent 
jurisdiction or other appropriate authority orders the appearance and 
expert or opinion testimony of a current or former Department employee, 
that person shall immediately inform the Office of the General Counsel 
of such order. If the Office of the General Counsel determines that no 
further legal review of or challenge to the court's order will be made, 
the Department employee, or former employee, shall comply with the 
order. If so directed by the Office of the General Counsel, however, the 
employee, or former employee, shall respectfully decline to testify.



Sec. Appendix A to Part 5--FOIA/Privacy Act Offices of the Department of 
                            Homeland Security

    I. For the following Headquarters components of the Department of 
Homeland Security, FOIA and Privacy Act requests should be sent to the 
Departmental Disclosure Office, Department of Homeland Security, 
Washington, DC 20528. The Headquarters components are:

                                    A

Office of the Secretary
Office of the Deputy Secretary
Office of the Under Secretary for Management

                                    B

Office of the General Counsel
Office of the Inspector General
Office of International Affairs
Office of Legislative Affairs
Office of Public Affairs
Office of National Capital Region Coordination
Office of Professional Responsibility
Office for State and Local Government Coordination

[[Page 37]]

                                    C

Directorate of Border and Transportation Security
Directorate of Emergency Preparedness and Response
Directorate of Information Analysis and Infrastructure Protection
Directorate of Science and Technology
    II. Requests made to components that have transferred or will 
transfer into the Department of Homeland Security, should be sent as 
follows:
    A. Former components of the Department of Agriculture:

1. Animal and Plant Health Inspection Service, USDA, APHIS, LPA, FOIA, 
4700 River Road, Unit 50, Riverdale, MD 20737-1232
2. Plum Island Animal Disease Center; Submit request to the APHIS 
address above or, FOIA Coordinator, USDA-REE-ARS-Information Staff, 5601 
Sunnyside Avenue, Bldg. 1, Room 2248, Mail Stop 5128, Beltsville, MD 
20705-5128

    B. Former components of the Department of Commerce:

1. Critical Infrastructure Assurance Office (A former office of the 
Bureau of Industry and Security); Freedom of Information Coordinator, 
Bureau of Industry and Security, Room 6883, U.S. Department of Commerce, 
Washington, DC 20230
2. FIRESTAT (formerly the Integrated Hazard Information System of the 
National Oceanic and Atmospheric Administration), National Oceanic and 
Atmospheric Administration, Public Reference Facility (OFAx2), 1315 
East-West Highway (SSMC3), Room 10703, Silver Spring, MD 20910
    C. Former components of the Department of Defense:

1. National Communications Service (A former component of the Defense 
Information Systems Agency), Defense Information Systems Agency, ATTN: 
RGC/FOIA Officer, 701 S. Courthouse Rd., Arlington, VA 22204-2199

    D. Former components and programs of the Department of Energy:

    The address for each component and program listed below is: U.S. 
Department of Energy, 1000 Independence Avenue, SW., Washington, DC 
20585
    1. Energy Assurance Office
    2. Environmental Measurements Laboratory
    3. Nuclear Incident Response Team
    4. The chemical and biological national security and supporting 
programs and activities of the non-proliferation and verification 
research and development program.
    5. The life sciences activities related to microbial pathogens of 
Biological and Environmental Research Program.
    6. The nuclear smuggling programs and activities within the 
proliferation detection program of the non-proliferation and 
verification research and development program.
    7. The nuclear assessment program and activities of the assessment, 
detection, and cooperation program of the international materials 
protection and cooperation program, and the advanced scientific 
computing research program and activities at Lawrence Livermore National 
Laboratory.
    8. National Infrastructure Simulation and Analysis Center
    E. Former components of the Department of Health and Human Services:

    1. The address for each component and program listed below is: 
Department of Health and Human Services, Freedom of Information Officer, 
Room 645-F, Hubert H. Humphrey Building, Independence Avenue, SW., 
Washington, DC 20201;
    a. Metropolitan Medical Response System,
    b. National Disaster Medical System, and
    c. Office of Emergency Preparedness
    d. Strategic National Stockpile
    2. Centers for Disease Control and Agency for Toxic Substances and 
Disease Registry, Attn: FOI Office, MS-D54, 1600 Clifton Road, NE., 
Atlanta, GA 30333.
    F. Former components of the Department of Justice:

    1. Immigration and Naturalization Service, Director, Freedom of 
Information/Privacy Act Program, Department of Justice, 425 Eye Street, 
NW., 2nd Floor, ULLICO Building, Washington, DC 20536 (for field 
offices, consult your phone book).
    2. The address for each component and program listed below is: 
Federal Bureau of Investigation, Chief, FOIPA Section, 935 Pennsylvania 
Avenue, NW., Department of Justice, Washington, DC 20535-0001;
    a. National Infrastructure Protection Center,
    b. National Domestic Preparedness Office, and
    c. Domestic Emergency Support Team.
    3. Office of Domestic Preparedness, U.S. Department of Justice, 
Office of Justice Programs, Office of the General Counsel, Attention: 
FOIA Staff, 810 7th Street, NW., Room 5400, Washington, DC 20531.
    G. Former components of the Department of State:

Visa Office, Information and Privacy Coordinator, Office of Information 
Resources, Management Programs and Services, A/RPS/IPS, SA-2, Department 
of State, Washington, DC 20522-6001, Re: Freedom of Information Act 
Request.
    H. Former components of the Department of Transportation:

1. Federal Aviation Administration, National Freedom of Information Act 
Staff, ARC-40, 800 Independence Avenue, SW., Washington, DC 20591 (for 
regional centers, consult your phone book).

[[Page 38]]

2. Transportation Security Administration, TSA-1, FOIA Division, 400 
Seventh Street, SW., Washington, DC 20590
3. United States Coast Guard, HQ USCG Commandant, G-CIM, 2100 Second 
Street, SW., Washington, DC 20593-0001 (for district offices, consult 
your phone book).

    I. Former components of the Department of Treasury:

1. Federal Law Enforcement Training Center, Freedom of Information Act 
Officer, Townhouse 389, Glynco, GA 31524
2. U.S. Customs Service, Freedom of Information Act Request, Mint Annex, 
1300 Pennsylvania Avenue, NW., Washington, DC 20229 (for field offices, 
consult your phone book).
3. U.S. Secret Service, Freedom of Information Act Request, 950 H 
Street, NW., Suite 3000, Washington, DC 20223, e-mail 
[email protected] Appeals should be addressed to the Deputy Director, 
United States Secret Service, Freedom of Information and Privacy Act 
Appeal Officer, at these same contact points.

    J. Federal Emergency Management Agency: Federal Emergency Management 
Agency, Office of General Counsel, 500 C Street, SW., Room 840, 
Washington, DC 20472 (for regional offices, consult your phone book).
    K. Former components of the General Services Administration:

1. For the Federal Computer Incident Response Center and the Federal 
Protective Service: Chief, FOIA Information Management Branch, GSA 
(CAIM), 1800 F Street, NW., Washington, DC 20405 (for regional offices, 
consult your phone book).



                  Sec. Appendix B to Part 5 [Reserved]



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

    This appendix implements provisions of the Privacy Act of 1974 that 
permit the Department of Homeland Security (DHS) to exempt its systems 
of records from provisions of the Act. During the course of normal 
agency operations, exempt materials from other systems of records may 
become part of the records in these and other DHS systems. To the extent 
that copies of records from other exempt systems of records are entered 
into any DHS system, DHS hereby claims the same exemptions for those 
records that are claimed for the original primary systems of records 
from which they originated and claims any additional exemptions in 
accordance with this rule.
    Portions of the following DHS systems of records are exempt from 
certain provisions of the Privacy Act pursuant to 5 U.S.C. 552(j) and 
(k):
    1. The DHS/ALL--001 Freedom of Information Act and Privacy Act 
Records System of Records consists of electronic and paper records and 
will be used by DHS and its components. The DHS/ALL--001 Freedom of 
Information Act and Privacy Act Records 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 there under; national security and intelligence activities; 
and protection of the President of the United States or other 
individuals pursuant to section 3056 and 3056A of Title 18. The DHS/
ALL--001 Freedom of Information Act and Privacy Act 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) and (4): (d); (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12); (f); (g)(1); 
and (h) pursuant to 5 U.S.C. 552a(j)(2). Additionally, 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. Sec.  552a(k)(1), (k)(2), (k)(3), (k)(5), and 
(k)(6). 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

[[Page 39]]

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 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. 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.
    (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) (Computer Matching) if the agency is a 
recipient agency or a source agency in a matching program with a non-
Federal agency, with respect to any establishment or revision of a 
matching program, at least 30 days prior to conducting such program, 
publish in the Federal Register notice of such establishment or 
revision.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    (k) From subsection (h) (Legal Guardians) the parent of any minor, 
or the legal guardian of any individual who has been declared to be 
incompetent due to physical or mental incapacity or age by a court of 
competent jurisdiction, may act on behalf of the individual.
    2. The DHS/ALL-029 Civil Rights and Civil Liberties Records System 
of Records consists of electronic and paper records and will be used by 
DHS and its components. The DHS/ALL-029 Civil Rights and Civil Liberties 
Records 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; national 
security and intelligence activities; and protection of the President of 
the United States or other individuals pursuant to Section 3056 and 
3056A of Title 18. The DHS/ALL-029 Civil Rights and Civil Liberties 
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. Sec.  552a(k)(1), (k)(2), 
(k)(3), and (k)(5). 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 individual who 
is 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,

[[Page 40]]

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 individual 
who is 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.
    3. DHS-ALL-005, Redress and Response Records System. A portion of 
the following system of records is exempt from 5 U.S.C. 552a(c)(3) and 
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), 
(5), and (8); (f), and (g); however, these exemptions apply only to the 
extent that information in this system records is recompiled or is 
created from information contained in other systems of records subject 
to such exemptions pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), and 
(k)(5). Further, no exemption shall be asserted with respect to 
information submitted by and collected from the individual or the 
individual's representative in the course of any redress process 
associated with this system of records. After conferring with the 
appropriate component or agency, DHS may waive applicable exemptions in 
appropriate circumstances and where it would not appear to interfere 
with or adversely affect the law enforcement or national security 
purposes of the systems from which the information is recompiled or in 
which it is contained. Exemptions from the above particular subsections 
are justified, on a case-by-case basis to be determined at the time a 
request is made, when information in this system records is recompiled 
or is created from information contained in other systems of records 
subject to exemptions for the following reasons:
    (a) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him or her 
would specifically reveal any investigative interest in the individual. 
Revealing this information could reasonably be expected to compromise 
ongoing efforts to investigate a known or suspected terrorist by 
notifying the record subject that he or she is under investigation. This 
information could also permit the record subject to take measures to 
impede the investigation, e.g., destroy evidence, intimidate potential 
witnesses, or flee the area to avoid or impede the investigation.
    (b) From subsection (c)(4) because portions of this system are 
exempt from the access and amendment provisions of subsection (d).
    (c) From subsections (d)(1), (2), (3), and (4) because these 
provisions concern individual access to and amendment of certain records 
contained in this system, including law enforcement counterterrorism, 
investigatory, and intelligence records. Compliance with these 
provisions could alert the subject of an investigation of the fact and 
nature of the investigation, and/or the investigative interest of 
intelligence or law enforcement agencies; compromise sensitive 
information related to national security; interfere with the overall law 
enforcement process by leading to the destruction of evidence, improper 
influencing of witnesses, fabrication of testimony, and/or flight of the 
subject; could identify a confidential source or disclose information 
which would constitute an unwarranted invasion of another's personal 
privacy; reveal a sensitive investigative or intelligence technique; or 
constitute a potential danger to the health or safety of law enforcement 
personnel, confidential informants, and witnesses. Amendment of these 
records would interfere with ongoing

[[Page 41]]

counterterrorism, law enforcement, or intelligence investigations and 
analysis activities and impose an impossible administrative burden by 
requiring investigations, analyses, and reports to be continuously 
reinvestigated and revised.
    (d) From subsection (e)(1) because it is not always possible for DHS 
or other agencies to know in advance what information is relevant and 
necessary for it to complete an identity comparison between the 
individual seeking redress and a known or suspected terrorist. Also, 
because DHS and other agencies may not always know what information 
about an encounter with a known or suspected terrorist will be relevant 
to law enforcement for the purpose of conducting an operational 
response.
    (e) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism, law enforcement, 
or intelligence efforts in that it would put the subject of an 
investigation, study, or analysis on notice of that fact, thereby 
permitting the subject to engage in conduct designed to frustrate or 
impede that activity. The nature of counterterrorism, law enforcement, 
or intelligence investigations is such that vital information about an 
individual frequently can be obtained only from other persons who are 
familiar with such individual and his/her activities. In such 
investigations it is not feasible to rely upon information furnished by 
the individual concerning his own activities.
    (f) From subsection (e)(3), to the extent that this subsection is 
interpreted to require DHS to provide notice to an individual if DHS or 
another agency receives or collects information about that individual 
during an investigation or from a third party. Should the subsection be 
so interpreted, exemption from this provision is necessary to avoid 
impeding counterterrorism, law enforcement, or intelligence efforts by 
putting the subject of an investigation, study, or analysis on notice of 
that fact, thereby permitting the subject to engage in conduct intended 
to frustrate or impede that activity.
    (g) From subsections (e)(4)(G), (H) and (I) (Agency Requirements) 
because portions of this system are exempt from the access and amendment 
provisions of subsection (d).
    (h) From subsection (e)(5) because many of the records in this 
system coming from other system of records are derived from other 
domestic and foreign agency record systems and therefore it is not 
possible for DHS to vouch for their compliance with this provision; 
however, the DHS has implemented internal quality assurance procedures 
to ensure that data used in the redress process is as thorough, 
accurate, and current as possible. In addition, in the collection of 
information for law enforcement, counterterrorism, and intelligence 
purposes, it is impossible to determine in advance what information is 
accurate, relevant, timely, and complete. With the passage of time, 
seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light. The 
restrictions imposed by (e)(5) would limit the ability of those 
agencies' trained investigators and intelligence analysts to exercise 
their judgment in conducting investigations and impede the development 
of intelligence necessary for effective law enforcement and 
counterterrorism efforts. The DHS has, however, implemented internal 
quality assurance procedures to ensure that the data used in the redress 
process is as thorough, accurate, and current as possible.
    (i) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on DHS and other agencies and could 
alert the subjects of counterterrorism, law enforcement, or intelligence 
investigations to the fact of those investigations when not previously 
known.
    (j) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of subsection 
(d).
    (k) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.
    4. The Department of Homeland Security Automated Biometric 
Identification System (IDENT) consists of electronic and paper records 
and will be used by DHS and its components. IDENT is the primary 
repository of biometric 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 (including the 
immigration law); investigations, inquiries, and proceedings thereunder; 
and national security and intelligence activities. IDENT is a 
centralized and dynamic DHS-wide biometric database that also contains 
limited biographic and encounter history information needed to place the 
biometric information in proper context. The information 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.
    Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act, 
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); 
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); 
(f)(2) through (5); and (g). Pursuant to 5 U.S.C. 552a(k)(2), this 
system is exempt from the following provisions of the Privacy Act, 
subject to the limitations set forth in those subsections: 5 U.S.C. 552a 
(c)(3), (d), (e)(1), (e)(4)(G), and (e)(4)(H). Exemptions from these 
particular subsections are justified, on a case-by-case basis to be

[[Page 42]]

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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G) and (H) (Agency Requirements), and 
(f)(2 through 5) (Agency Rules) because portions of this system are 
exempt from the individual access provisions of subsection (d) and 
thereby would not require DHS to establish requirements or rules for 
records which are exempted from access.
    (g) From subsection (e)(5) (Collection of Information) because in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.
    5. The DHS/OIG-002 Investigative Records System of Records consists 
of electronic and paper records used by the DHS OIG. The DHS/OIG-002 
Investigative Records 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 there under; 
and national security and intelligence activities. The DHS/OIG-002 
Investigative Records System of Records contains information that is 
collected by, on behalf of, in support of, or in cooperation with DHS 
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) and (c)(4); (d); (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f); and (g) 
pursuant to 5 U.S.C. 552a(j)(2). Additionally, 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); and (f) pursuant to 5 U.S.C. 
552a(k)(1), (k)(2) and (k)(5). 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 (c)(4) (Accounting for Disclosures) 
because release of the accounting of disclosures could alert the

[[Page 43]]

subject of an investigation of an actual or potential criminal, civil, 
or regulatory violation, to the existence of the 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, 
tamper with witnesses or evidence, and 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 the 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, tamper with witnesses or evidence, and 
avoid detection or apprehension. Amendment of the records could 
interfere with ongoing investigations and law enforcement activities and 
would impose an impossible administrative burden by requiring 
investigations to be continuously 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 as to the nature or 
existence of an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: revealing the existence of an otherwise 
confidential investigation and thereby providing an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
revealing the identity of witnesses in investigations thereby providing 
an opportunity for the subjects of the investigations or others to 
harass, intimidate, or otherwise interfere with the collection of 
evidence or other information from such witnesses; or revealing the 
identity of confidential informants, which would negatively affect the 
informants' usefulness in any ongoing or future investigations and 
discourage members of the public from cooperating as confidential 
informants in any future investigations.
    (f) From subsections (e)(4)(G) and (e)(4)(H) (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 rules or 
procedures with respect to such access. Providing notice to individuals 
with respect to existence of records pertaining to them in this 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, potential witnesses, and confidential informants.
    (g) From subsection (e)(5) (Collection of Information) because in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act 
relating to individuals' rights to access and amend their records 
contained in the system. Therefore, DHS is not required to establish 
rules or procedures pursuant to which individuals may seek a civil 
remedy for the agency's refusals to amend a record; refusal to comply 
with a request for access to records; failure to maintain accurate, 
relevant, timely, and complete records; or failure to otherwise comply 
with an individual's right to access or amend records.
    6. The Immigration and Customs Enforcement (ICE) Pattern Analysis 
and Information Collection (ICEPIC) System consists of electronic and 
paper records and will be used by DHS and its components. ICEPIC 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

[[Page 44]]

(including the immigration law); investigations, inquiries, and 
proceedings there under; and national security and intelligence 
activities. ICEPIC 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.
    Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, 
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); 
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); 
(f), and (g). Pursuant to 5 U.S.C. 552a(k)(2), this system is exempt 
from the following provisions of the Privacy Act, subject to the 
limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), (d), 
(e)(1), (e)(4)(G), (e)(4)(H), 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G) and (H) (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' ability to obtain, serve, and issue

[[Page 45]]

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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; Refusal to comply with a request for access to 
records; failure to maintain accurate, relevant timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    7. The Office of Intelligence and Analysis (I&A) Enterprise Records 
System (ERS) consists of records including intelligence information and 
other properly acquired information received from agencies and 
components of the federal government, foreign governments, organizations 
or entities, international organizations, state and local government 
agencies (including law enforcement agencies), and private sector 
entities, as well as information provided by individuals, regardless of 
the medium used to submit the information or the agency to which it was 
submitted. This system also contains: Information regarding persons on 
watch lists with known or suspected links to terrorism; the results of 
intelligence analysis and reporting; ongoing law enforcement 
investigative information, information systems security analysis and 
reporting; active immigration, customs, border and transportation, 
security related records; historical law enforcement, operational, 
immigration, customs, border and transportation security, and other 
administrative records; relevant and appropriately acquired financial 
information; and public-source data such as that contained in media 
reports and commercially available databases, as appropriate. Data about 
the providers of information, including the means of transmission of the 
data, is also retained.
    (a) Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), and (5), this system 
of records is exempt from 5 U.S.C. 552a(c)(3), (d)(1), (2), (3), (4), 
and (5), (e)(1), (e)(4)(G), (H), and (I), and (f). These exemptions 
apply only to the extent that information in this system is subject to 
exemption. Where compliance would not appear to interfere with or 
adversely affect the intelligence, counterterrorism, homeland security, 
and related law enforcement purposes of this system, the applicable 
exemption may be waived by DHS.
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) (Accounting for Disclosures) because 
making available to a record subject the accounting of disclosures from 
records concerning him/her would specifically reveal any interest in the 
individual of an intelligence, counterterrorism, homeland security, or 
related investigative nature. Revealing this information could 
reasonably be expected to compromise ongoing efforts of the Department 
to identify, understand, analyze, investigate, and counter the 
activities of:
    (i) Known or suspected terrorists and terrorist groups;
    (ii) Groups or individuals known or believed to be assisting or 
associated with known or suspected terrorists or terrorist groups;
    (iii) Individuals known, believed to be, or suspected of being 
engaged in activities constituting a threat to homeland security, 
including (1) activities which impact or concern the security, safety, 
and integrity of our international borders, including any illegal 
activities that either cross our borders or are otherwise in violation 
of the immigration or customs laws and regulations of the United States; 
(2) activities which could reasonably be expected to assist in the 
development or use of a weapon of mass effect; (3) activities meant to 
identify, create, or exploit the vulnerabilities of, or undermine, the 
``key resources'' (as defined in section 2(9) of the Homeland Security 
Act of 2002) and ``critical infrastructure'' (as defined in 42 U.S.C. 
5195c(c)) of the United States, including the cyber and national 
telecommunications infrastructure and the availability of a viable 
national security and emergency preparedness communications 
infrastructure; (4) activities detrimental to the security of 
transportation and transportation systems; (5) activities which violate 
or are suspected of violating the laws relating to counterfeiting of 
obligations and securities of the United States and other financial 
crimes, including access device fraud, financial institution fraud, 
identity theft, computer fraud; and computer-based attacks on our 
nation's financial, banking, and telecommunications infrastructure; (6) 
activities, not wholly conducted within the United States, which violate 
or are suspected of violating the laws which prohibit the production, 
transfer, or sale of narcotics or substances controlled in accordance 
with Title 21 of the United States Code, or those associated activities 
otherwise prohibited by Titles 21 and 46 of the United States Code; (7) 
activities which impact, concern, or otherwise threaten the safety and 
security of the President and Vice President, their families, heads of 
state, and other designated individuals; the White House, Vice 
President's residence, foreign missions, and other designated buildings 
within the United States; (8) activities which impact, concern, or 
otherwise

[[Page 46]]

threaten domestic maritime safety and security, maritime mobility and 
navigation, or the integrity of the domestic maritime environment; (9) 
activities which impact, concern, or otherwise threaten the national 
operational capability of the Department to respond to natural and 
manmade major disasters and emergencies, including acts of terrorism; 
(10) activities involving the importation, possession, storage, 
development, or transportation of nuclear or radiological material 
without authorization or for use against the United States;
    (iv) Foreign governments, organizations, or persons (foreign 
powers); and
    (v) Individuals engaging in intelligence activities on behalf of a 
foreign power or terrorist group.
    Thus, by notifying the record subject that he/she is the focus of 
such efforts or interest on the part of DHS, or other agencies with whom 
DHS is cooperating and to whom the disclosures were made, this 
information could permit the record subject to take measures to impede 
or evade such efforts, including the taking of steps to deceive DHS 
personnel and deny them the ability to adequately assess relevant 
information and activities, and could inappropriately disclose to the 
record subject the sensitive methods and/or confidential sources used to 
acquire the relevant information against him/her. Moreover, where the 
record subject is the actual target of a law enforcement investigation, 
this information could permit him/her to take measures to impede the 
investigation, for example, by destroying evidence, intimidating 
potential witnesses, or avoiding detection or apprehension.
    (2) From subsections (d)(1), (2), (3), and (4) (Access to Records) 
because these provisions concern individual rights of access to and 
amendment of records (including the review of agency denials of either) 
contained in this system, which consists of intelligence, 
counterterrorism, homeland security, and related investigatory records 
concerning efforts of the Department, as described more fully in 
subsection (b)(1), above. Compliance with these provisions could inform 
or alert the subject of an intelligence, counterterrorism, homeland 
security, or investigatory effort undertaken on behalf of the 
Department, or by another agency with whom DHS is cooperating, of the 
fact and nature of such efforts, and/or the relevant intelligence, 
counterterrorism, homeland security, or investigatory interest of DHS 
and/or other intelligence, counterterrorism, or law enforcement 
agencies. Moreover, compliance could also compromise sensitive 
information either classified in the interest of national security, or 
which otherwise requires, as appropriate, safeguarding and protection 
from unauthorized disclosure; identify a confidential source or disclose 
information which would constitute an unwarranted invasion of another 
individual's personal privacy; reveal a sensitive intelligence or 
investigative technique or method, including interfering with 
intelligence or law enforcement investigative processes by permitting 
the destruction of evidence, improper influencing or intimidation of 
witnesses, fabrication of statements or testimony, and flight from 
detection or apprehension; or constitute a potential danger to the 
health or safety of intelligence, counterterrorism, homeland security, 
and law enforcement personnel, confidential sources and informants, and 
potential witnesses. Amendment of the records would interfere with 
ongoing intelligence, counterterrorism, homeland security, and law 
enforcement investigations and activities, including incident reporting 
and analysis activities, and impose an impossible administrative burden 
by requiring investigations, reports, and analyses to be continuously 
reinvestigated and revised.
    (3) From subsection (e)(1) (Relevant and Necessary) because it is 
not always possible for DHS to know in advance of its receipt the 
relevance and necessity of each piece of information it acquires in the 
course of an intelligence, counterterrorism, or investigatory effort 
undertaken on behalf of the Department, or by another agency with whom 
DHS is cooperating. In the context of the authorized intelligence, 
counterterrorism, and investigatory activities undertaken by DHS 
personnel, relevance and necessity are questions of analytic judgment 
and timing, such that what may appear relevant and necessary when 
acquired ultimately may be deemed unnecessary upon further analysis and 
evaluation. Similarly, in some situations, it is only after acquired 
information is collated, analyzed, and evaluated in light of other 
available evidence and information that its relevance and necessity can 
be established or made clear. Constraining the initial acquisition of 
information included within the ERS in accordance with the relevant and 
necessary requirement of subsection (e)(1) could discourage the 
appropriate receipt of and access to information which DHS and I&A are 
otherwise authorized to receive and possess under law, and thereby 
impede efforts to detect, deter, prevent, disrupt, or apprehend 
terrorists or terrorist groups, and/or respond to terrorist or other 
activities which threaten homeland security. Notwithstanding this 
claimed exemption, which would permit the acquisition and temporary 
maintenance of records whose relevance to the purpose of the ERS may be 
less than fully clear, DHS will only disclose such records after 
determining whether such disclosures are themselves consistent with the 
published ERS routine uses. Moreover, it should be noted that, as 
concerns the receipt by I&A, for intelligence purposes, of information 
in any record which identifies a U.S. Person, as defined in Executive 
Order 12333,

[[Page 47]]

as amended, such receipt, and any subsequent use or dissemination of 
that identifying information, is undertaken consistent with the 
procedures established and adhered to by I&A pursuant to that Executive 
Order. Specifically, I&A intelligence personnel may acquire information 
which identifies a particular U.S. Person, retain it within or 
disseminate it from ERS, as appropriate, only when it is determined that 
the personally identifying information is necessary for the conduct of 
I&A's functions, and otherwise falls into one of a limited number of 
authorized categories, each of which reflects discrete activities for 
which information on individuals would be utilized by the Department in 
the overall execution of its statutory mission.
    (4) From subsections (e)(4) (G), (H) and (I) (Access), and (f) 
(Agency Rules), inasmuch as it is unnecessary for the publication of 
rules and procedures contemplated therein since the ERS, pursuant to 
subsections (1) and (2), above, will be exempt from the underlying 
duties to provide to individuals notification about, access to, and the 
ability to amend or correct the information pertaining to them in, this 
system of records. Furthermore, to the extent that subsection (e)(4)(I) 
is construed to require more detailed disclosure than the information 
accompanying the system notice for ERS, as published in today's Federal 
Register, exemption from it is also necessary to protect the 
confidentiality, privacy, and physical safety of sources of information, 
as well as the methods for acquiring it. Finally, greater specificity 
concerning the description of categories of sources of properly 
classified records could also compromise or otherwise cause damage to 
the national or homeland security.
    8. The information in MAGNET establishes Maritime Domain Awareness. 
Maritime Domain Awareness is the collection of as much information as 
possible about the maritime world. In other words, MAGNET establishes a 
full awareness of the entities (people, places, things) and their 
activities within the maritime industry. MAGNET collects the information 
and connects the information in order to fulfill this need.
    Coast Guard Intelligence (through MAGNET) will provide awareness to 
the field as well as to strategic planners by aggregating data from 
existing sources internal and external to the Coast Guard or DHS. MAGNET 
will correlate and provide the medium to display information such as 
ship registry, current ship position, crew background, passenger lists, 
port history, cargo, known criminal vessels, and suspect lists. Coast 
Guard Intelligence (CG-2) will serve as MAGNET's executive agent and 
will share appropriate aggregated data to other law enforcement and 
intelligence agencies.
    (a) Pursuant to 5 U.S.C. 522a(j)(2), (k)(1), and (k)(2) this system 
of records is exempt from 5 U.S.C. 552a(c)(3) and (4), (d)(1), (d)(2), 
(d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4) (G), (H), and (I), e(5), 
e(8), e(12), (f), and (g). These exemptions apply only to the extent 
that information in this system is subject to exemption. Where 
compliance would not appear to interfere with or adversely affect the 
intelligence, counterterrorism, homeland security, and related law 
enforcement purposes of this system, the applicable exemption may be 
waived by DHS.
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) (Accounting of Certain Disclosures) 
because making available to a record subject the accounting of 
disclosures from records concerning him/her would specifically reveal 
any interest in the individual of an intelligence, counterterrorism, 
homeland security, law enforcement or related investigative nature. 
Revealing this information could reasonably be expected to compromise 
ongoing efforts of the Department to identify, understand, analyze, 
investigate, and counter the activities of:
    (i) Known or suspected terrorists and terrorist groups;
    (ii) Groups or individuals known or believed to be assisting or 
associated with known or suspected terrorists or terrorist groups;
    (iii) Individuals known, believed to be, or suspected of being 
engaged in activities constituting a threat to homeland security, 
including (1) activities which impact or concern the security, safety, 
and integrity of our international borders, including any illegal 
activities that either cross our borders or are otherwise in violation 
of the immigration or customs laws and regulations of the United States; 
(2) activities which could reasonably be expected to assist in the 
development or use of a weapon of mass effect; (3) activities meant to 
identify, create, or exploit the vulnerabilities of, or undermine, the 
``key resources'' (as defined in section 2(9) of the Homeland Security 
Act of 2002) and ``critical infrastructure'' (as defined in 42 U.S.C. 
5195c(c)) of the United States, including the cyber and national 
telecommunications infrastructure and the availability of a viable 
national security and emergency preparedness communications 
infrastructure; (4) activities detrimental to the security of 
transportation and transportation systems; (5) activities which violate 
or are suspected of violating the laws relating to counterfeiting of 
obligations and securities of the United States and other financial 
crimes, including access device fraud, financial institution fraud, 
identity theft, computer fraud; and computer-based attacks on our 
nation's financial, banking, and telecommunications infrastructure; (6) 
activities, not wholly conducted within the United

[[Page 48]]

States, which violate or are suspected of violating the laws which 
prohibit the production, transfer, or sale of narcotics or substances 
controlled in accordance with Title 21 of the United States Code, or 
those associated activities otherwise prohibited by Titles 21 and 46 of 
the United States Code; (7) activities which impact, concern, or 
otherwise threaten the safety and security of the President and Vice 
President, their families, heads of state, and other designated 
individuals; the White House, Vice President's residence, foreign 
missions, and other designated buildings within the United States; (8) 
activities which impact, concern, or otherwise threaten domestic 
maritime safety and security, maritime mobility and navigation, or the 
integrity of the domestic maritime environment; (9) activities which 
impact, concern, or otherwise threaten the national operational 
capability of the Department to respond to natural and manmade major 
disasters and emergencies, including acts of terrorism; (10) activities 
involving the importation, possession, storage, development, or 
transportation of nuclear or radiological material without authorization 
or for use against the United States;
    (iv) Foreign governments, organizations, or persons (foreign 
powers); and
    (v) Individuals engaging in intelligence activities on behalf of a 
foreign power or terrorist group.
    Thus, by notifying the record subject that he/she is the focus of 
such efforts or interest on the part of DHS, or other agencies with whom 
DHS is cooperating and to whom the disclosures were made, this 
information could permit the record subject to take measures to impede 
or evade such efforts, including the taking of steps to deceive DHS 
personnel and deny them the ability to adequately assess relevant 
information and activities, and could inappropriately disclose to the 
record subject the sensitive methods and/or confidential sources used to 
acquire the relevant information against him/her. Moreover, where the 
record subject is the actual target of a law enforcement investigation, 
this information could permit him/her to take measures to impede the 
investigation, for example, by destroying evidence, intimidating 
potential witnesses, or avoiding detection or apprehension.
    (2) From subsection (c)(4) (Accounting for Disclosure, notice of 
dispute) because certain records in this system are exempt from the 
access and amendment provisions of subsection (d), this requirement to 
inform any person or other agency about any correction or notation of 
dispute that the agency made with regard to those records, should not 
apply.
    (3) From subsections (d)(1), (2), (3), and (4) (Access to Records) 
because these provisions concern individual rights of access to and 
amendment of records (including the review of agency denials of either) 
contained in this system, which consists of intelligence, 
counterterrorism, homeland security, and related investigatory records 
concerning efforts of the Department, as described more fully in 
subsection (b)(1), above. Compliance with these provisions could inform 
or alert the subject of an intelligence, counterterrorism, homeland 
security, or investigatory effort undertaken on behalf of the 
Department, or by another agency with whom DHS is cooperating, of the 
fact and nature of such efforts, and/or the relevant intelligence, 
counterterrorism, homeland security, or investigatory interest of DHS 
and/or other intelligence, counterterrorism, or law enforcement 
agencies. Moreover, compliance could also compromise sensitive 
information either classified in the interest of national security, or 
which otherwise requires, as appropriate, safeguarding and protection 
from unauthorized disclosure; identify a confidential source or disclose 
information which would constitute an unwarranted invasion of another 
individual's personal privacy; reveal a sensitive intelligence or 
investigative technique or method, including interfering with 
intelligence or law enforcement investigative processes by permitting 
the destruction of evidence, improper influencing or intimidation of 
witnesses, fabrication of statements or testimony, and flight from 
detection or apprehension; or constitute a potential danger to the 
health or safety of intelligence, counterterrorism, homeland security, 
and law enforcement personnel, confidential sources and informants, and 
potential witnesses. Amendment of the records would interfere with 
ongoing intelligence, counterterrorism, homeland security, and law 
enforcement investigations and activities, including incident reporting 
and analysis activities, and impose an impossible administrative burden 
by requiring investigations, reports, and analyses to be continuously 
reinvestigated and revised.
    (4) From subsection (e)(1) (Relevant and Necessary) because it is 
not always possible for DHS to know in advance of its receipt the 
relevance and necessity of each piece of information it acquires in the 
course of an intelligence, counterterrorism, or investigatory effort 
undertaken on behalf of the Department, or by another agency with whom 
DHS is cooperating. In the context of the authorized intelligence, 
counterterrorism, and investigatory activities undertaken by DHS 
personnel, relevance and necessity are questions of analytic judgment 
and timing, such that what may appear relevant and necessary when 
acquired ultimately may be deemed unnecessary upon further analysis and 
evaluation. Similarly, in some situations, it is only after acquired 
information is collated, analyzed, and evaluated in light of other 
available evidence and information

[[Page 49]]

that its relevance and necessity can be established or made clear. 
Constraining the initial acquisition of information included within the 
MAGNET in accordance with the relevant and necessary requirement of 
subsection (e)(1) could discourage the appropriate receipt of and access 
to information which DHS and MAGNET are otherwise authorized to receive 
and possess under law, and thereby impede efforts to detect, deter, 
prevent, disrupt, or apprehend terrorists or terrorist groups, and/or 
respond to terrorist or other activities which threaten homeland 
security. Notwithstanding this claimed exemption, which would permit the 
acquisition and temporary maintenance of records whose relevance to the 
purpose of the MAGNET may be less than fully clear, DHS will only 
disclose such records after determining whether such disclosures are 
themselves consistent with the published MAGNET routine uses. Moreover, 
it should be noted that, as concerns the receipt by USCG, for 
intelligence purposes, of information in any record which identifies a 
U.S. Person, as defined in Executive Order 12333, as amended, such 
receipt, and any subsequent use or dissemination of that identifying 
information, is undertaken consistent with the procedures established 
and adhered to by USCG pursuant to that Executive Order. Specifically, 
USCG intelligence personnel may acquire information which identifies a 
particular U.S. Person, retain it within or disseminate it from MAGNET, 
as appropriate, only when it is determined that the personally 
identifying information is necessary for the conduct of USCG's 
functions, and otherwise falls into one of a limited number of 
authorized categories, each of which reflects discrete activities for 
which information on individuals would be utilized by the Department in 
the overall execution of its statutory mission.
    (5) From subsection (e)(2) (Collection of Information from 
Individuals) because application of this provision could present a 
serious impediment to counterterrorism or law enforcement efforts in 
that it would put the subject of an investigation, study or analysis on 
notice of that fact, thereby permitting the subject to engage in conduct 
designed to frustrate or impede that activity. The nature of 
counterterrorism and law enforcement investigations is such that vital 
information about an individual frequently can be obtained only from 
other persons who are familiar with such individual and his/her 
activities. In such investigations it is not feasible to rely solely 
upon information furnished by the individual concerning his own 
activities.
    (6) From subsection (e)(3) (Notice to Subjects), to the extent that 
this subsection is interpreted to require DHS to provide notice to an 
individual if DHS or another agency receives or collects information 
about that individual during an investigation or from a third party. 
Should the subsection be so interpreted, exemption from this provision 
is necessary to avoid impeding counterterrorism or law enforcement 
efforts by putting the subject of an investigation, study or analysis on 
notice of that fact, thereby permitting the subject to engage in conduct 
intended to frustrate or impede that activity.
    (7) From subsections (e)(4) (G), (H) and (I) (Access), and (f) 
(Agency Rules), inasmuch as it is unnecessary for the publication of 
rules and procedures contemplated therein since the MAGNET, pursuant to 
subsections (3), above, will be exempt from the underlying duties to 
provide to individuals notification about, access to, and the ability to 
amend or correct the information pertaining to them in, this system of 
records. Furthermore, to the extent that subsection (e)(4)(I) is 
construed to require more detailed disclosure than the information 
accompanying the system notice for MAGNET, as published in today's 
Federal Register, exemption from it is also necessary to protect the 
confidentiality, privacy, and physical safety of sources of information, 
as well as the methods for acquiring it. Finally, greater specificity 
concerning the description of categories of sources of properly 
classified records could also compromise or otherwise cause damage to 
the national or homeland security.
    (8) From subsection (e)(5) (Collection of Information) because many 
of the records in this system coming from other system of records are 
derived from other domestic and foreign agency record systems and 
therefore it is not possible for DHS to vouch for their compliance with 
this provision; however, the DHS has implemented internal quality 
assurance procedures to ensure that data used in its screening processes 
is as complete, accurate, and current as possible. In addition, in the 
collection of information for law enforcement and counterterrorism 
purposes, it is impossible to determine in advance what information is 
accurate, relevant, timely, and complete. With the passage of time, 
seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light. The 
restrictions imposed by (e)(5) would limit the ability of those 
agencies' trained investigators and intelligence analysts to exercise 
their judgment in conducting investigations and impede the development 
of intelligence necessary for effective law enforcement and 
counterterrorism efforts.
    (9) From subsection (e)(8) (Notice on Individuals) because to 
require individual notice of disclosure of information due to compulsory 
legal process would pose an impossible administrative burden on DHS and 
other agencies and could alert the subjects of counterterrorism or law 
enforcement investigations to the fact of those investigations then not 
previously known.

[[Page 50]]

    (10) From subsection (e)(12) (Matching Agreements) because requiring 
DHS to provide notice of alterations to existing matching agreements 
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.
    (11) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    9. The Law Enforcement Information Data Base (LEIDB)/Pathfinder is a 
historical repository of selected Coast Guard message traffic. LEIDB/
Pathfinder supports law enforcement intelligence activities. LEIDB/
Pathfinder users can query archived message traffic and link relevant 
information across multiple data records within LEIDB/Pathfinder. Users 
have system tools enabling the user to identify potential relationships 
between information contained in otherwise unrelated documents. These 
tools allow the analysts to build high precision and low return queries, 
which minimize false hits and maximize analyst productivity while 
working with unstructured, unformatted, free test documents.
    (a) Pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2) certain 
records or information in the above mentioned system of records are 
exempt from 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4); 
(e)(1), (2), (3), (4)(G) through (I), (e)(5), and (8); (f), and (g). 
These exemptions apply only to the extent that information in this 
system is subject to exemption. Where compliance would not appear to 
interfere with or adversely affect the intelligence, counterterrorism, 
homeland security, and related law enforcement purposes of this system, 
the applicable exemption may be waived by DHS.
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) (Accounting for Disclosures) because 
making available to a record subject the accounting of disclosures from 
records concerning him/her would specifically reveal any interest in the 
individual of an intelligence, counterterrorism, homeland security, or 
related investigative nature. Revealing this information could 
reasonably be expected to compromise ongoing efforts of the Department 
to identify, understand, analyze, investigate, and counter the 
activities of:
    (i) Known or suspected terrorists and terrorist groups;
    (ii) Groups or individuals known or believed to be assisting or 
associated with known or suspected terrorists or terrorist groups;
    (iii) Individuals known, believed to be, or suspected of being 
engaged in activities constituting a threat to homeland security, 
including (1) activities which impact or concern the security, safety, 
and integrity of our international borders, including any illegal 
activities that either cross our borders or are otherwise in violation 
of the immigration or customs laws and regulations of the United States; 
(2) activities which could reasonably be expected to assist in the 
development or use of a weapon of mass effect; (3) activities meant to 
identify, create, or exploit the vulnerabilities of, or undermine, the 
``key resources'' (as defined in section 2(9) of the Homeland Security 
Act of 2002) and ``critical infrastructure'' (as defined in 42 U.S.C. 
5195c(c)) of the United States, including the cyber and national 
telecommunications infrastructure and the availability of a viable 
national security and emergency preparedness communications 
infrastructure; (4) activities detrimental to the security of 
transportation and transportation systems; (5) activities which violate 
or are suspected of violating the laws relating to counterfeiting of 
obligations and securities of the United States and other financial 
crimes, including access device fraud, financial institution fraud, 
identity theft, computer fraud; and computer-based attacks on our 
nation's financial, banking, and telecommunications infrastructure; (6) 
activities, not wholly conducted within the United States, which violate 
or are suspected of violating the laws which prohibit the production, 
transfer, or sale of narcotics or substances controlled in accordance 
with Title 21 of the United States Code, or those associated activities 
otherwise prohibited by Titles 21 and 46 of the United States Code; (7) 
activities which impact, concern, or otherwise threaten the safety and 
security of the President and Vice President, their families, heads of 
state, and other designated individuals; the White House, Vice 
President's residence, foreign missions, and other designated buildings 
within the United States; (8) activities which impact, concern, or 
otherwise threaten domestic maritime safety and security, maritime 
mobility and navigation, or the integrity of the domestic maritime 
environment; (9) activities which impact, concern, or otherwise threaten 
the national operational capability of the Department to respond to 
natural and manmade major disasters and emergencies, including acts of 
terrorism; (10) activities involving the importation, possession, 
storage, development, or transportation of nuclear or radiological 
material without authorization or for use against the United States;
    (iv) Foreign governments, organizations, or persons (foreign 
powers); and
    (v) Individuals engaging in intelligence activities on behalf of a 
foreign power or terrorist group.
    Thus, by notifying the record subject that he/she is the focus of 
such efforts or interest

[[Page 51]]

on the part of DHS, or other agencies with whom DHS is cooperating and 
to whom the disclosures were made, this information could permit the 
record subject to take measures to impede or evade such efforts, 
including the taking of steps to deceive DHS personnel and deny them the 
ability to adequately assess relevant information and activities, and 
could inappropriately disclose to the record subject the sensitive 
methods and/or confidential sources used to acquire the relevant 
information against him/her. Moreover, where the record subject is the 
actual target of a law enforcement investigation, this information could 
permit him/her to take measures to impede the investigation, for 
example, by destroying evidence, intimidating potential witnesses, or 
avoiding detection or apprehension.
    (2) From subsection (c)(4) (Accounting for Disclosure, notice of 
dispute) because certain records in this system are exempt from the 
access and amendment provisions of subsection (d), this requirement to 
inform any person or other agency about any correction or notation of 
dispute that the agency made with regard to those records, should not 
apply.
    (3) From subsections (d)(1), (2), (3), and (4) (Access to Records) 
because these provisions concern individual rights of access to and 
amendment of records (including the review of agency denials of either) 
contained in this system, which consists of intelligence, 
counterterrorism, homeland security, and related investigatory records 
concerning efforts of the Department, as described more fully in 
subsection (b)(1), above. Compliance with these provisions could inform 
or alert the subject of an intelligence, counterterrorism, homeland 
security, or investigatory effort undertaken on behalf of the 
Department, or by another agency with whom DHS is cooperating, of the 
fact and nature of such efforts, and/or the relevant intelligence, 
counterterrorism, homeland security, or investigatory interest of DHS 
and/or other intelligence, counterterrorism, or law enforcement 
agencies. Moreover, compliance could also compromise sensitive 
information either classified in the interest of national security, or 
which otherwise requires, as appropriate, safeguarding and protection 
from unauthorized disclosure; identify a confidential source or disclose 
information which would constitute an unwarranted invasion of another 
individual's personal privacy; reveal a sensitive intelligence or 
investigative technique or method, including interfering with 
intelligence or law enforcement investigative processes by permitting 
the destruction of evidence, improper influencing or intimidation of 
witnesses, fabrication of statements or testimony, and flight from 
detection or apprehension; or constitute a potential danger to the 
health or safety of intelligence, counterterrorism, homeland security, 
and law enforcement personnel, confidential sources and informants, and 
potential witnesses. Amendment of the records would interfere with 
ongoing intelligence, counterterrorism, homeland security, and law 
enforcement investigations and activities, including incident reporting 
and analysis activities, and impose an impossible administrative burden 
by requiring investigations, reports, and analyses to be continuously 
reinvestigated and revised.
    (4) From subsection (e)(1) (Relevant and Necessary) because it is 
not always possible for DHS to know in advance of its receipt the 
relevance and necessity of each piece of information it acquires in the 
course of an intelligence, counterterrorism, or investigatory effort 
undertaken on behalf of the Department, or by another agency with whom 
DHS is cooperating. In the context of the authorized intelligence, 
counterterrorism, and investigatory activities undertaken by DHS 
personnel, relevance and necessity are questions of analytic judgment 
and timing, such that what may appear relevant and necessary when 
acquired ultimately may be deemed unnecessary upon further analysis and 
evaluation. Similarly, in some situations, it is only after acquired 
information is collated, analyzed, and evaluated in light of other 
available evidence and information that its relevance and necessity can 
be established or made clear. Constraining the initial acquisition of 
information included within the LEIDB in accordance with the relevant 
and necessary requirement of subsection (e)(1) could discourage the 
appropriate receipt of and access to information which DHS and USCG are 
otherwise authorized to receive and possess under law, and thereby 
impede efforts to detect, deter, prevent, disrupt, or apprehend 
terrorists or terrorist groups, and/or respond to terrorist or other 
activities which threaten homeland security. Notwithstanding this 
claimed exemption, which would permit the acquisition and temporary 
maintenance of records whose relevance to the purpose of the LEIDB may 
be less than fully clear, DHS will only disclose such records after 
determining whether such disclosures are themselves consistent with the 
published LEIDB routine uses. Moreover, it should be noted that, as 
concerns the receipt by USCG, for intelligence purposes, of information 
in any record which identifies a U.S. Person, as defined in Executive 
Order 12333, as amended, such receipt, and any subsequent use or 
dissemination of that identifying information, is undertaken consistent 
with the procedures established and adhered to by USCG pursuant to that 
Executive Order. Specifically, USCG intelligence personnel may acquire 
information which identifies a particular U.S. Person, retain it within 
or disseminate it from LEIDB, as appropriate, only when it is determined 
that the personally identifying information is

[[Page 52]]

necessary for the conduct of USCG's functions, and otherwise falls into 
one of a limited number of authorized categories, each of which reflects 
discrete activities for which information on individuals would be 
utilized by the Department in the overall execution of its statutory 
mission.
    (5) From subsection (e)(2) (Collection of Information from 
Individuals) because application of this provision could present a 
serious impediment to counterterrorism or law enforcement efforts in 
that it would put the subject of an investigation, study or analysis on 
notice of that fact, thereby permitting the subject to engage in conduct 
designed to frustrate or impede that activity. The nature of 
counterterrorism, and law enforcement investigations is such that vital 
information about an individual frequently can be obtained only from 
other persons who are familiar with such individual and his/her 
activities. In such investigations it is not feasible to rely solely 
upon information furnished by the individual concerning his own 
activities.
    (6) From subsection (e)(3) (Notice to Subjects), to the extent that 
this subsection is interpreted to require DHS to provide notice to an 
individual if DHS or another agency receives or collects information 
about that individual during an investigation or from a third party. 
Should the subsection be so interpreted, exemption from this provision 
is necessary to avoid impeding counterterrorism or law enforcement 
efforts by putting the subject of an investigation, study or analysis on 
notice of that fact, thereby permitting the subject to engage in conduct 
intended to frustrate or impede that activity.
    (7) From subsections (e)(4) (G), (H) and (I) (Access), inasmuch as 
it is unnecessary for the publication of rules and procedures 
contemplated therein since the LEIDB, pursuant to subsections (2) and 
(3), above, will be exempt from the underlying duties to provide to 
individuals notification about, access to, and the ability to amend or 
correct the information pertaining to them in, this system of records. 
Furthermore, to the extent that subsection (e)(4)(I) is construed to 
require more detailed disclosure than the information accompanying the 
system notice for LEIDB, as published in today's Federal Register, 
exemption from it is also necessary to protect the confidentiality, 
privacy, and physical safety of sources of information, as well as the 
methods for acquiring it. Finally, greater specificity concerning the 
description of categories of sources of properly classified records 
could also compromise or otherwise cause damage to the national or 
homeland security.
    (8) From subsection (e)(5) (Collection of Information) because many 
of the records contained in this system are derived from other domestic 
and foreign sources, it is not possible for DHS to vouch for those 
records' compliance with this provision; however, the DHS has 
implemented internal quality assurance procedures to ensure that data 
used in its screening processes is as complete, accurate, and current as 
possible. In addition, in the collection of information for law 
enforcement and counterterrorism purposes, it is impossible to determine 
in advance what information is accurate, relevant, timely, and complete. 
With the passage of time, seemingly irrelevant or untimely information 
may acquire new significance as further investigation brings new details 
to light. The restrictions imposed by (e)(5) would limit the ability of 
those agencies' trained investigators and intelligence analysts to 
exercise their judgment in conducting investigations and impede the 
development of intelligence necessary for effective law enforcement and 
counterterrorism efforts.
    (9) From subsection (e)(8) (Notice on Individuals) because to 
require individual notice of disclosure of information due to compulsory 
legal process would pose an impossible administrative burden on DHS and 
other agencies and could alert the subjects of counterterrorism or law 
enforcement investigations to the fact of those investigations then not 
previously known.
    (10) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of subsection 
(d). Access to, and amendment of, system records that are not exempt or 
for which exemption is waived may be obtained under procedures described 
in the related SORN or subpart B of this part.
    (11) From subsection (g) to the extent that the system is exempt 
from other specific subsections of the Privacy Act relating to 
individuals' rights to access and amend their records contained in the 
system. Therefore DHS is not required to establish rules or procedures 
pursuant to which individuals may seek a civil remedy for the agency's: 
Refusal to amend a record; refusal to comply with a request for access 
to records; failure to maintain accurate, relevant timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    10. DHS-ICE-001, The Immigration and Customs Enforcement (ICE) 
Student and Exchange Visitor Information System (SEVIS) collects and 
maintains pertinent information on nonimmigrant students and exchange 
visitors and the schools and exchange visitor program sponsors that host 
them while in the United States. The system permits DHS to monitor 
compliance by these individuals with the terms of their admission into 
the United States. Pursuant to exemptions (j)(2), (k)(1), (k)(2) and 
(k)(5) of the Privacy Act, portions of this system are exempt from 5 
U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and (I). Exemptions from 
the particular subsections are justified, on a case by case

[[Page 53]]

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 the 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 and avoid detection or 
apprehension, which undermines the entire system.
    (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 the 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 and avoid detection or apprehension. 
Amendment of the records could interfere with ongoing investigations and 
law enforcement activities and impose an impossible administrative 
burden by requiring investigations to be continuously reinvestigated. In 
addition, permitting access and amendment to such information also 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 enforcement of federal laws, it is appropriate to retain all 
information that may aid in establishing patterns of unlawful activity.
    (d) From subsections (e)(4)(G), (H) and (I) (Agency Requirements), 
and (f) (Agency Rules), because portions of this system are exempt from 
the access provisions of subsection (d).
    11. The General Counsel Electronic Management System (GEMS) consists 
of records and information created or collected by attorneys for U.S. 
Immigration and Customs Enforcement, which will be used in the 
preparation and presentation of cases before a court or other 
adjudicative body. ICE attorneys work closely with ICE law enforcement 
personnel throughout the process of adjudicating immigration cases. GEMS 
allows ICE attorneys to store all the materials pertaining to 
immigration adjudications, including documents related to 
investigations, case notes and other hearing related information, and 
briefs and memoranda of law related to cases. Having this information in 
one system should not only facilitate the work of the ICE attorneys 
involved in the particular case, but also will provide a legal resource 
for other attorneys who are adjudicating similar cases. The system will 
also provide management capabilities for tracking time and effort 
expended in the preparation and presentation of cases. Pursuant to 
exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act, portions of this 
system are exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), 
(e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f)(2) through (5); and 
(g). Pursuant to 5 U.S.C. 552a (k)(1) and (k)(2), this system is exempt 
from the following provisions of the Privacy Act, subject to the 
limitations set forth in those subsections: 5 U.S.C. 552a (c)(3), (d), 
(e)(1), (e)(4)(G), (e)(4)(H), 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) (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 the investigation, which in some cases 
may be classified, and reveal investigative interest on the part of DHS 
or ICE. 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, 
tamper with witnesses or evidence, and 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 pertaining to an immigration matter, which in some 
cases may be classified, and prematurely 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, tamper with witnesses or evidence, and avoid detection or 
apprehension. Amendment of the records could interfere with ongoing 
investigations and law enforcement activities and would impose an 
impossible administrative burden by requiring investigations to be 
continuously 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

[[Page 54]]

course of investigations into potential violations of federal 
immigration 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 and for the protection of national security, 
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 of the nature or 
existence of an investigation, which could cause interference with the 
investigation, a related inquiry or other law enforcement activities, 
some of which may be classified.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G) and (H) (Agency Requirements), (f) 
(Agency Rules), and (g) (Civil Remedies) because portions of this system 
are exempt from the individual access provisions of subsection (d).
    (g) From subsection (e)(5) (Collection of Information) because in 
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 ICE'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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.
    12. DHS/CBP-005, Advanced Passenger Information System. A portion of 
the following system of records is exempt from 5 U.S.C. 552a(c)(3) and 
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), 
(5), and (8); (f), and (g); however, these exemptions apply only to the 
extent that information in this system records is recompiled or is 
created from information contained in other systems of records subject 
to such exemptions pursuant to 5 U.S.C. 552a(j)(2), and (k)(2). Further, 
no exemption shall be asserted with respect to information submitted by 
and collected from the individual or the individual's representative in 
the course of any redress process associated with this system of 
records. After conferring with the appropriate component or agency, DHS 
may waive applicable exemptions in appropriate circumstances and where 
it would not appear to interfere with or adversely affect the law 
enforcement or national security purposes of the systems from which the 
information is recompiled or in which it is contained. Exemptions from 
the above particular subsections are justified, on a case-by-case basis 
to be determined at the time a request is made, when information in this 
system records is recompiled or is created from information contained in 
other systems of records subject to exemptions for the following 
reasons:
    (a) From subsection (c)(3) (Accounting for Disclosure) because 
making available to a record subject the accounting of disclosures from 
records concerning him or her would specifically reveal any 
investigative interest in the individual. Revealing this information 
could reasonably be expected to compromise ongoing efforts to 
investigate a known or suspected terrorist by notifying the record 
subject that he or she is under investigation. This information could 
also permit the record subject to take measures to impede the 
investigation, e.g., destroy evidence, intimidate potential witnesses, 
or flee the area to avoid or impede the investigation.
    (b) From subsection (c)(4) (Accounting for Disclosure, notice of 
dispute) because portions of this system are exempt from the access and 
amendment provisions of subsection (d).
    (c) From subsections (d)(1), (2), (3), and (4) (Access to Records) 
because these provisions concern individual access to and amendment of 
certain records contained in this system, including law enforcement 
counterterrorism, investigatory, and intelligence records. Compliance 
with these provisions could alert the subject of an investigation of the 
fact and nature of the investigation, and/or the investigative interest 
of intelligence or law enforcement agencies; compromise sensitive 
information related to national security; interfere with the overall law 
enforcement process by leading to the destruction of evidence, improper 
influencing of witnesses, fabrication of testimony, and/or flight of the 
subject; could identify a confidential source or disclose information 
which would constitute an unwarranted invasion of another's personal 
privacy; reveal a sensitive investigative or intelligence technique; or 
constitute a potential danger to the health or safety of law enforcement 
personnel, confidential informants, and witnesses. Amendment of these 
records would interfere with ongoing counterterrorism, law enforcement, 
or intelligence investigations and analysis activities and impose an 
impossible administrative burden by requiring investigations, analyses, 
and reports to be continuously reinvestigated and revised.
    (d) From subsection (e)(1) (Relevancy and Necessity of Information) 
because it is not always possible for DHS or other agencies to

[[Page 55]]

know in advance what information is relevant and necessary for it to 
complete an identity comparison between the individual seeking redress 
and a known or suspected terrorist. Also, because DHS and other agencies 
may not always know what information about an encounter with a known or 
suspected terrorist will be relevant to law enforcement for the purpose 
of conducting an operational response.
    (e) From subsection (e)(2) (Collection of Information from 
Individuals) because application of this provision could present a 
serious impediment to counterterrorism, law enforcement, or intelligence 
efforts in that it would put the subject of an investigation, study, or 
analysis on notice of that fact, thereby permitting the subject to 
engage in conduct designed to frustrate or impede that activity. The 
nature of counterterrorism, law enforcement, or intelligence 
investigations is such that vital information about an individual 
frequently can be obtained only from other persons who are familiar with 
such individual and his/her activities. In such investigations it is not 
feasible to rely upon information furnished by the individual concerning 
his own activities.
    (f) From subsection (e)(3) (Notice to Subjects), to the extent that 
this subsection is interpreted to require DHS to provide notice to an 
individual if DHS or another agency receives or collects information 
about that individual during an investigation or from a third party. 
Should the subsection be so interpreted, exemption from this provision 
is necessary to avoid impeding counterterrorism, law enforcement, or 
intelligence efforts by putting the subject of an investigation, study, 
or analysis on notice of that fact, thereby permitting the subject to 
engage in conduct intended to frustrate or impede that activity.
    (g) From subsections (e)(4)(G), (H) and (I) (Agency Requirements) 
because portions of this system are exempt from the access and amendment 
provisions of subsection (d).
    (h) From subsection (e)(5) (Collection of Information) because many 
of the records in this system coming from other system of records are 
derived from other domestic and foreign agency record systems and 
therefore it is not possible for DHS to vouch for their compliance with 
this provision; however, the DHS has implemented internal quality 
assurance procedures to ensure that data used in the redress process is 
as thorough, accurate, and current as possible. In addition, in the 
collection of information for law enforcement, counterterrorism, and 
intelligence purposes, it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. The restrictions imposed by (e)(5) would limit the ability of 
those agencies' trained investigators and intelligence analysts to 
exercise their judgment in conducting investigations and impede the 
development of intelligence necessary for effective law enforcement and 
counterterrorism efforts. The DHS has, however, implemented internal 
quality assurance procedures to ensure that the data used in the redress 
process is as thorough, accurate, and current as possible.
    (i) From subsection (e)(8) (Notice on Individuals) because to 
require individual notice of disclosure of information due to compulsory 
legal process would pose an impossible administrative burden on DHS and 
other agencies and could alert the subjects of counterterrorism, law 
enforcement, or intelligence investigations to the fact of those 
investigations when not previously known.
    (j) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of subsection 
(d).
    (k) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    13. The Department of Homeland Security General Training Records 
system of records consists of electronic and paper records and will be 
used by DHS and its components. The Department of Homeland Security 
General Training 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. 
Pursuant to exemptions 5 U.S.C. 552a(k)(6) of the Privacy Act, portions 
of this system are exempt from 5 U.S.C. 552a(d) to the extent that 
records in this system relate to testing or examination materials used 
solely to determine individual qualifications for appointment in the 
Federal service. Access to or amendment of this information by the data 
subject would compromise the objectivity and fairness of the testing and 
examination process.
    14. The U.S. ICE-005 Trade Transparency Analysis and Research (TTAR) 
System consists of electronic and paper records and will be used by the 
Department of Homeland Security (DHS). TTAR is a repository of 
information held by DHS in connection with its several and varied 
missions and functions,

[[Page 56]]

including, but not limited to: The enforcement of civil and criminal 
laws; investigations, inquiries, and proceedings there under; and 
national security and intelligence activities. TTAR contains information 
that is collected by other federal and foreign government agencies and 
may contain personally identifiable information. Pursuant to exemption 5 
U.S.C. 552a(j)(2) of the Privacy Act, portions of this system are exempt 
from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f), and (g). Pursuant to 5 
U.S.C. 552a(k)(2), this system is exempt from the following provisions 
of the Privacy Act, subject to the limitations set forth in those 
subsections: 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G) and (H) (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, potential witnesses, and confidential 
informants.
    (g) From subsection (e)(5) (Collection of Information) because in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (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

[[Page 57]]

seal, and could result in disclosure of investigative techniques, 
procedures, and evidence.
    (i) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    15. The DHS/ALL--013 Claims Records system of records consists of 
electronic and paper records and will be used by DHS and its components. 
The DHS/ALL--013 Claims Records system 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 there under; 
and national security, intelligence activities; and protection of the 
President of the United States or other individuals pursuant to section 
3056 and 3056A of Title 18. The DHS/ALL--013 Claims Records system 
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) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 
552a(j)(2). Additionally, 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), (I), and (f) pursuant to 5 U.S.C. 552a(k)(1), 
(k)(2), and (k)(3). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in

[[Page 58]]

any ongoing or future investigations and discourage members of the 
public from cooperating as confidential informants in any future 
investigations.
    (f) From subsections (e)(4)(G), (H), and (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    16. The DHS/ALL--018 Grievances, Appeals and Disciplinary Action 
Records system of records consists of electronic and paper records and 
will be used by DHS and its components. The DHS/ALL--018 Grievances, 
Appeals and Disciplinary Action Records system 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 
there under; national security and intelligence activities; and 
protection of the President of the United States or other individuals 
pursuant to section 3056 and 3056A of Title 18. The DHS/ALL--018 
Grievances, Appeals and Disciplinary Action Records system 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 the limitations set forth in 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 
552a(j)(2). Additionally, the Secretary of Homeland Security has 
exempted this system from the following provisions of the Privacy Act, 
subject to the 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)(1), (k)(2), (k)(3), and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously reinvestigated. In addition, 
permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to homeland 
security.

[[Page 59]]

    (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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G), (H), and (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    17. The DHS/ALL--006 Accident Records system of records consists of 
electronic and paper records and will be used by DHS and its components. 
The DHS/ALL--006 Accident Records system 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; 
national security and intelligence activities; and protection of the 
President of the United States or other individuals pursuant to section 
3056 and 3056A of Title 18. The DHS/ALL--006 Accident Records system 
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 the limitations set forth in 5 U.S.C. 
552a(d) pursuant to 5 U.S.C. 552a(k)(3). 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: 
From subsection (d) (Access to Records) because access to the records 
contained in this system of records could inform the subject of 
information related to the protection of a President of the United 
States or other individuals pursuant to section 3056 and 3056A of Title 
18. Permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to homeland 
security.
    18. The DHS/ALL--020 Internal Affairs Records system of records 
consists of electronic and paper records and will be used by DHS and its 
components. The DHS/ALL--020

[[Page 60]]

Internal Affairs Records system 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; national 
security and intelligence activities; and protection of the President of 
the United States or other individuals pursuant to section 3056 and 
3056A of Title 18. The DHS/ALL--020 Internal Affairs Records system 
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 the limitations set forth in 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 
552a(j)(2). Additionally, the Secretary of Homeland Security has 
exempted this system from the following provisions of the Privacy Act, 
subject to the 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)(1), (k)(2), (k)(3), and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G), (H), and (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.

[[Page 61]]

    (g) From subsection (e)(5) (Collection of Information) because in 
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 (e)(5) would preclude 
DHS agents from using their investigative training, and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    19. The DHS/ALL--024 Facility and Perimeter Access Control and 
Visitor Management system of records consists of electronic and paper 
records and will be used by DHS and its components. The DHS/ALL--024 
Facility and Perimeter Access Control and Visitor Management system 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 there under; and national security and intelligence 
activities. The DHS/ALL--024 Facility and Perimeter Access Control and 
Visitor Management system 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 the 
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)(1), (k)(2), 
and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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.
    20. The DHS/CBP--009 Electronic System for Travel Authorization 
system of records consists of electronic and paper records and will be 
used by DHS and it's Components.

[[Page 62]]

The DHS/CBP--009 Electronic System for Travel Authorization system 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/CBP--009 Electronic System for Travel Authorization 
system 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 the limitations set 
forth in 5 U.S.C. 552a(c)(3), (e)(8), and (g) pursuant to 5 U.S.C. 
552a(j)(2), and (k)(2). Further, no exemption shall be asserted with 
respect to information maintained in the system as it relates to data 
submitted by or on behalf of a person who travels to visit the United 
States and crosses the border, nor shall an exemption be asserted with 
respect to the resulting determination (approval or denial). After 
conferring with the appropriate component or agency, DHS may waive 
applicable exemptions in appropriate circumstances and where it would 
not appear to interfere with or adversely affect the law enforcement 
purposes of the systems from which the information is recompiled or in 
which it is contained. Exemptions from the above particular subsections 
are justified, on a case-by-case basis to be determined at the time a 
request is made, when information in this system of records may impede a 
law enforcement or national security investigation:
    (a) From subsection (c)(3) (Accounting for Disclosure) because 
making available to a record subject the accounting of disclosures from 
records concerning him or her would specifically reveal any 
investigative interest in the individual. Revealing this information 
could reasonably be expected to compromise ongoing efforts to 
investigate a violation of U.S. law, including investigations of a known 
or suspected terrorist, by notifying the record subject that he or she 
is under investigation. This information could also permit the record 
subject to take measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid or 
impede the investigation.
    (b) From subsection (e)(8) (Notice on Individuals) because to 
require individual notice of disclosure of information due to compulsory 
legal process would pose an impossible administrative burden on DHS and 
other agencies and could alert the subjects of counterterrorism or law 
enforcement investigations to the fact of those investigations when not 
previously known.
    (c) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    21. The DHS/CBP--010 Persons Engaged in International Trade in CBP 
Licensed/Regulated Activities system of records consists of electronic 
and paper records and will be used by DHS and its components. The DHS/
CBP--010 Persons Engaged in International Trade in CBP Licensed/
Regulated Activities 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/CBP--010 Persons 
Engaged in International Trade in CBP Licensed/Regulated Activities 
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 the limitations set forth in 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 
552a(j)(2). Additionally, the Secretary of Homeland Security has 
exempted this system from the following provisions of the Privacy Act, 
subject to the 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)(2). 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 the 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

[[Page 63]]

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 the 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 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated. In addition, permitting access and 
amendment to such information could disclose security-sensitive 
information that could be detrimental to national 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G), (H), and (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    22. The DHS/CBP--011 TECS system of records consists of electronic 
and paper records and will be used by DHS, its Components, and other 
Federal agencies. The DHS/CBP-011 TECS 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/CBP-011 TECS 
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 the limitations set forth in 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 
552a(j)(2). Additionally, the Secretary of

[[Page 64]]

Homeland Security has exempted this system from the following provisions 
of the Privacy Act, subject to the 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)(2). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously reinvestigated. In addition, 
permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to national 
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 or subject of interest would alert the 
subject to the nature or existence of an investigation, thereby 
interfering with the related investigation and law enforcement 
activities or national security matter.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G), (H), and (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal

[[Page 65]]

to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    23. The DHS/CBP--012 Closed Circuit Television system of records 
consists of electronic and paper records and will be used by DHS and its 
components. The DHS/CBP--012 Closed Circuit Television system 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/CBP--012 Closed Circuit Television system 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 the limitations set forth in 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 
552a(j)(2). Additionally, the Secretary of Homeland Security has 
exempted this system from the following provisions of the Privacy Act, 
subject to the 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)(2). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G), (H), and (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

[[Page 66]]

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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    24. The DHS/CBP--013 Seized Assets and Case Tracking System 
(SEACATS) consists of electronic and paper records and will be used by 
DHS and its components. The DHS/CBP--013 Seized Assets and Case Tracking 
System 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/CBP--013 Seized Assets and Case 
Tracking System 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 the limitations set 
forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), and (g) 
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland 
Security has exempted this system from the following provisions of the 
Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a 
(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (I), and (f) pursuant to 5 
U.S.C. 552a(k)(2). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously reinvestigated. In addition, 
permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to national 
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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in

[[Page 67]]

that it could compromise investigations by: Revealing the existence of 
an otherwise confidential investigation and thereby provide an 
opportunity for the subject of an investigation to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative efforts; reveal the identity of witnesses in 
investigations, thereby providing an opportunity for the subjects of the 
investigations or others to harass, intimidate, or otherwise interfere 
with the collection of evidence or other information from such 
witnesses; or reveal the identity of confidential informants, which 
would negatively affect the informant's usefulness in any ongoing or 
future investigations and discourage members of the public from 
cooperating as confidential informants in any future investigations.
    (f) From subsections (e)(4)(G), (H), and (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 in 
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 (e)(5) would preclude 
the officers and agents of DHS components' from using their 
investigative training and exercise of good judgment to both conduct and 
report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    25. The Department of Homeland Security (DHS)/U.S. Customs and 
Border Protection-014 Regulatory Audit Archive System (RAAS) System of 
Records consists of electronic and paper records and will be used by DHS 
and its Components. The DHS/CBP-014 RAAS 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 there under. The DHS/CBP-014 RAAS 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, pursuant to 5 U.S.C. 552a(k)(2), has exempted this 
system from the following provisions of the Privacy Act: 5 U.S.C. 
552a(c)(3). 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 the 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 impossible administrative burden by requiring 
investigations to be continuously reinvestigated. In addition, 
permitting access and amendment to such information could

[[Page 68]]

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), (H), and (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.
    26. DHS/CBP-001, Import Information System (IIS). A portion of the 
following system of records is exempt from 5 U.S.C. 552a(c)(3), (e)(8), 
and (g)(1) pursuant to 5 U.S.C. 552a(j)(2), and from 5 U.S.C. 552a(c)(3) 
pursuant to 5 U.S.C. 552a(k)(2). Further, no exemption shall be asserted 
with respect to information maintained in the system as it relates to 
data submitted by or on behalf of a person who travels to visit the 
United States and crosses the border, nor shall an exemption be asserted 
with respect to the resulting determination (approval or denial). After 
conferring with the appropriate component or agency, DHS may waive 
applicable exemptions in appropriate circumstances and where it would 
not appear to interfere with or adversely affect the law enforcement 
purposes of the systems from which the information is recompiled or in 
which it is contained. Exemptions from the above particular subsections 
are justified, on a case-by-case basis to be determined at the time a 
request is made, when information in this system of records is may 
impede a law enforcement, intelligence activities and national security 
investigation:
    (a) From subsection (c)(3) (Accounting for Disclosure) because 
making available to a record subject the accounting of disclosures from 
records concerning him or her would specifically reveal any 
investigative interest in the individual. Revealing this information 
could reasonably be expected to compromise ongoing efforts to 
investigate a violation of U.S. law, including investigations of a known 
or suspected terrorist, by notifying the record subject that he or she 
is under investigation. This information could also permit the record 
subject to take measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid or 
impede the investigation.
    (b) From subsection (e)(8) (Notice on Individuals) because to 
require individual notice of disclosure of information due to compulsory 
legal process would pose an impossible administrative burden on DHS and 
other agencies and could alert the subjects of counterterrorism or law 
enforcement investigations to the fact of those investigations when not 
previously known.
    (c) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    27. The DHS/CBP-009 Nonimmigrant Information system of records 
consists of electronic and paper records and will be used by DHS and 
it's Components. The DHS/CBP-009 Nonimmigrant Information System 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/CBP-009 Nonimmigrant Information System 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. This system may 
contain records or information pertaining to the accounting of 
disclosures made from the Nonimmigrant Information System to other law 
enforcement and counterterrorism agencies (Federal, State, Local, 
Foreign, International or Tribal) in accordance with the published 
routine uses. The Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to the 
limitations set forth in 5 U.S.C. 522(c)(3), (e) (8), and (g) of the 
Privacy Act of 1974, as amended, as necessary and appropriate to protect 
accounting of these disclosures only, pursuant to 5 U.S.C. 552a (j)(2), 
and (k)(2). Further, no exemption shall be asserted with respect to 
biographical or travel information submitted by, and collected from, a 
person's travel documents or submitted from a government computer system 
to support or to validate those travel documents. After conferring with 
the appropriate component or agency, DHS may waive applicable exemptions 
in appropriate circumstances and where it would not appear to interfere 
with

[[Page 69]]

or adversely affect the law enforcement purposes of the systems from 
which the information is recompiled or in which it is contained. 
Exemptions from the above particular subsections are justified, on a 
case-by-case basis to be determined at the time a request is made, when 
information in this system of records is recompiled or is created from 
information contained in other systems of records subject to exemptions 
for the following reasons:
    (a) From subsection (c)(3) (Accounting for Disclosure) because 
making available to a record subject the accounting of disclosures from 
records concerning him or her would specifically reveal any 
investigative interest in the individual. Revealing this information 
could reasonably be expected to compromise ongoing efforts to 
investigate a violation of U.S. law, including investigations of a known 
or suspected terrorist, by notifying the record subject that he or she 
is under investigation. This information could also permit the record 
subject to take measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid or 
impede the investigation.
    (b) From subsection (e)(8) (Notice on Individuals) because to 
require individual notice of disclosure of information due to compulsory 
legal process would pose an impossible administrative burden on DHS and 
other agencies and could alert the subjects of counterterrorism or law 
enforcement investigations to the fact of those investigations when not 
previously known.
    (c) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    28. The DHS/ICE--007 Law Enforcement Support Center (LESC) Alien 
Criminal Response Information Management (ACRIMe) system of records 
consists of electronic and paper records and will be used by DHS and its 
components. The DHS/ICE--007 Law Enforcement Support Center Alien 
Criminal Response Information Management system 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/
ICE--007 Law Enforcement Support Center Alien Criminal Response 
Information Management system 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 of records from the following provisions of the Privacy Act, 
subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and (4); 
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), and (e)(5) and 
(e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the 
Secretary of Homeland Security has exempted this system from the 
following provisions of the Privacy Act, subject to the limitations set 
forth in 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and 
(f) pursuant to 5 U.S.C. 552a(k)(2). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 identifying or 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

[[Page 70]]

subject to the nature or existence of an investigation, thereby 
interfering with the related investigation and law enforcement 
activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G), (H) (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    29. The DHS/ICE--008 Search, Arrest, and Seizure system of records 
consists of electronic and paper records and will be used by DHS and its 
components. The DHS/ICE--008 Search, Arrest, and Seizure system 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/ICE--008 Search, Arrest, and Seizure system 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 the limitations set forth in 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2). 
Additionally, the Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to the 
limitations set forth in 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), and (f) pursuant to 5 U.S.C. 552a(k)(2). 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 the 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 the investigation,

[[Page 71]]

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 impossible administrative burden by 
requiring investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G) and (H) (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    30. The DHS/ICE--009 External Investigations system of records 
consists of electronic and paper records and will be used by DHS and its 
components. The DHS/ICE--009 External Investigations system 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 there under; and national security and intelligence 
activities. The DHS/ICE--009 External Investigations system 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 the limitations set forth in 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
and (e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2). 
Additionally, the Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to the 
limitations set forth

[[Page 72]]

in 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f) 
pursuant to 5 U.S.C. 552a(k)(2). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G) and (H) (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise

[[Page 73]]

comply with an individual's right to access or amend records.
    31. The DHS/ICE--010 Confidential and Other Sources of Information 
(COSI) system of records consists of electronic and paper records and 
will be used by DHS and its components. The DHS/ICE--010 Confidential 
and Other Sources of Information system 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; and investigations, inquiries, and proceedings there 
under; and national security and intelligence activities. The DHS/ICE--
010 Confidential and Other Sources of Information system 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 the limitations set forth in 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2). 
Additionally, the Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to the 
limitations set forth in 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), and (f) pursuant to 5 U.S.C. 552a(k)(2). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G) and (H) (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,

[[Page 74]]

and potential witnesses, and confidential informants.
    (g) From subsection (e)(5) (Collection of Information) because in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    32. The DHS/USCIS--006 Fraud Detection and National Security Data 
System (FDNS-DS) system of records consists of a stand alone database 
and paper files that will be used by DHS and its components. The DHS/
USCIS--006 Fraud Detection and National Security Data System is a case 
management system used to record, track, and manage immigration 
inquiries, investigative referrals, law enforcement requests, and case 
determinations involving benefit fraud, criminal activity, public safety 
and national security concerns. The Secretary of Homeland Security has 
exempted this system from the following provisions of the Privacy Act, 
subject to the 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)(2). These exemptions apply only to the extent that records in 
the system are subject to exemption pursuant to 5 U.S.C. 552a (k)(2). 
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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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) and (e)(4)(H) (Agency Requirements) 
because portions of this system are exempt from the individual access 
provisions of subsection (d) which exempts providing access because it 
could alert a subject to the nature or existence of an investigation, 
and thus there could be no procedures for that particular data. 
Procedures do exist for access for those portions of the system that are 
not exempted.
    (e) From subsection (e)(4)(I) (Agency Requirements) because 
providing such source information would impede law enforcement or 
intelligence by compromising the nature or existence of a confidential 
investigation.
    (f) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of subsection 
(d).
    33. The DHS/USCG--028 Family Advocacy Case Records system of records 
consists of electronic and paper records and will be used by DHS and its 
components. The DHS/USCG--028 Family Advocacy Case Records is a 
repository of information held by DHS in

[[Page 75]]

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 there under. The DHS/
USCG--028 Family Advocacy Case 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 the 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)(2). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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), (H), and (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.
    34. The DHS/USCG--029 Notice of Arrival and Departure system 
consists of electronic and paper records and will be used by DHS and its 
components. The DHS/USCG--029 Notice of Arrival and Departure system 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. The DHS/USCG--029 Notice of Arrival and 
Departure system 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, as 
well as private corporate or other entities. The Secretary of Homeland 
Security has exempted this system from the following provisions of the 
Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) 
and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), 
(e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2). 
Additionally, the Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to the 
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)(2). However, 
these exemptions apply only to the extent that information in this 
system of records is recompiled or is created from information contained 
in other systems of records. After conferring with the appropriate 
component or agency, DHS may waive applicable exemptions in appropriate 
circumstances and where it would not appear to interfere with or 
adversely affect the law enforcement purposes of the systems from which 
the information is recompiled or in which it is contained. Exemptions 
from the above particular subsections are justified, on a case-by-case 
basis to be determined at the time a request is made, when

[[Page 76]]

information in this system of records is recompiled or is created from 
information contained in other systems of records subject to exemptions 
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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously reinvestigated. In addition, 
permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to national 
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 or subject of interest would alert the 
subject to the nature or existence of an investigation, thereby 
interfering with the related investigation and law enforcement 
activities or national security matter.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G), (H), and (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.

[[Page 77]]

    35. The DHS/Secret Service--001 Criminal Investigation Information 
system of records consists of electronic and paper records and will be 
used by DHS and its components. The DHS/Secret Service--001 Criminal 
Investigation Information system 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 there under; the 
protection of the President of the United States or other individuals 
and locations pursuant to section 3056 and 3056A of Title 18. The DHS/
Secret Service--001 Criminal Investigation Information system 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, international government agencies, as well as private 
corporate, education and other entities. The Secretary of Homeland 
Security has exempted this system from the following provisions of the 
Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) 
and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), 
(e)(5) and (e)(8); (f), and (g) pursuant to 5 U.S.C. 552a(j)(2). 
Additionally, the Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to the 
limitations set forth in 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), (I), and (f) pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and 
(k)(3). 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 the investigation, or 
protective inquiry, 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 
the Secret Service's protective mission. Disclosure of the accounting 
would also permit the individual who is the subject of a record to 
impede the investigation, or inquiry, to tamper with witnesses or 
evidence, and to avoid detection or apprehension, which would undermine 
the entire investigative or inquiry 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, or protective inquiry to the existence of the 
investigation or inquiry, 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 or 
inquiry, to tamper with witnesses or evidence, and to avoid detection or 
apprehension. Amendment of the records could interfere with ongoing 
investigations and law enforcement or protective activities and/or could 
disclose security-sensitive information that could be detrimental to 
homeland security or the protective mission of the Secret Service.
    (c) From subsection (e)(1) (Relevancy and Necessity of Information) 
because in the course of investigations into potential violations of 
Federal law or protective inquiries, 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 or 
protective inquiry. In the interests of effective law enforcement, and/
or the protective mission of the Secret Service, it is appropriate to 
retain all information that may aid in establishing patterns of unlawful 
activity, or a threat to an individual, location or event protected or 
secured by the Secret Service.
    (d) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from the 
subject of an investigation or protective inquiry would alert the 
subject to the nature or existence of an investigation or inquiry, 
thereby interfering with the related investigation or inquiry and law 
enforcement or protective activities.
    (e) From subsection (e)(3) (Notice to Individuals Providing 
Information) because providing such detailed information would impede 
law enforcement or protective activities in that it could compromise 
investigations or inquires by: Revealing the existence of an otherwise 
confidential investigation or inquiry and thereby provide an opportunity 
for the subject of an investigation or inquiry to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative or protective efforts; reveal the identity of witnesses in 
investigations or inquiries, thereby providing an opportunity for the 
subjects of the investigations or inquiries or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations or protective 
activities and discourage members of the public from cooperating as 
confidential informants in any future investigations or protective 
activities.
    (f) From subsections (e)(4)(G), (H), and (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,

[[Page 78]]

and therefore DHS is not required to establish requirements, rules, or 
procedures with respect to such access. Providing notice to individuals 
with respect to the 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 or protective efforts and reveal 
the identities of witnesses, and potential witnesses, and confidential 
informants.
    (g) From subsection (e)(5) (Maintenance of Information Used in 
Making any Determination) because in the collection of information for 
law enforcement and protective purposes it is impossible to determine in 
advance what information is accurate, relevant, timely, and complete. 
Compliance with (e)(5) would preclude Secret Service DHS agents from 
using their investigative and protective training and exercising good 
judgment to both conduct and report on investigations or other 
protective activities.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' ability to obtain, serve, and issue 
subpoenas, warrants, and other law enforcement mechanisms that may be 
filed under seal, or/and could result in disclosure of investigative or 
protective techniques, procedures, and evidence.
    (i) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act 
relating to individuals' rights to access and amend their records 
contained in the system. Therefore DHS is not required to establish 
rules or procedures pursuant to which individuals may seek a civil 
remedy for the agency's: Refusal to amend a record; refusal to comply 
with a request for access to records; failure to maintain accurate, 
relevant, timely and complete records; or failure to otherwise comply 
with an individual's right to access or amend records.
    36. The DHS/Secret Service--003 Non-Criminal Investigation 
Information system of records consists of electronic and paper records 
and will be used by DHS and its components. The DHS/Secret Service--003 
Non-Criminal Investigation Information system 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; criminal, civil, protective and background 
investigations and inquiries, and proceedings thereunder; the protection 
of the President of the United States or other individuals and locations 
pursuant to section 3056 and 3056A of Title 18; and the hiring of 
employees through an application process which includes the use of 
polygraph examinations. The DHS/Secret Service--003 Non-Criminal 
Investigation Information system 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, as well as private corporate, educational and other 
entities. The Secretary of Homeland Security has exempted this system 
from the following provisions of the Privacy Act, subject to the 
limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), 
and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of 
Homeland Security has exempted this system from the following provisions 
of the Privacy Act, subject to the 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)(1), (k)(2), (k)(3), (k)(5), and (k)(6). 
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 the investigation, or 
protective inquiry, 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 
the Secret Service's protective mission. Disclosure of the accounting 
would also permit the individual who is the subject of a record to 
impede the investigation or inquiry, to tamper with witnesses or 
evidence, and to avoid detection or apprehension, which would undermine 
the entire investigative or inquiry 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, or protective inquiry to the existence of the 
investigation or inquiry, 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 or 
inquiry, to tamper with witnesses or evidence, and to avoid detection or 
apprehension. Amendment of the records could interfere with ongoing 
investigations and law enforcement or protective activities and/or could 
disclose security-sensitive information that could be detrimental to 
homeland security or the protective mission of the Secret Service.
    (c) From subsection (e)(1) (Relevancy and Necessity of Information) 
because in the course of investigations into potential violations of 
Federal law or protective inquiries,

[[Page 79]]

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 or protective inquiry. In the interests of 
effective law enforcement and/or the protective mission of the Secret 
Service, it is appropriate to retain all information that may aid in 
establishing patterns of unlawful activity, or a threat to an 
individual, location or event protected or secured by the Secret 
Service.
    (d) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from the 
subject of an investigation or protective inquiry would alert the 
subject to the nature or existence of an investigation or inquiry, 
thereby interfering with the related investigation or inquiry and law 
enforcement or protective activities.
    (e) From subsection (e)(3) (Notice to Individuals Providing 
Information) because providing such detailed information would impede 
law enforcement or protective activities in that it could compromise 
investigations or inquiries by: Revealing the existence of an otherwise 
confidential investigation or inquiry and thereby provide an opportunity 
for the subject of an investigation or inquiry to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative or protective efforts; reveal the identity of witnesses in 
investigations or inquiries, thereby providing an opportunity for the 
subjects of the investigations or inquiries or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations or protective 
activities and discourage members of the public from cooperating as 
confidential informants in any future investigations or protective 
activities.
    (f) From subsections (e)(4)(G), (H), and (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 the 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 or protective efforts and 
reveal the identities of witnesses, and potential witnesses, and 
confidential informants.
    (g) From subsection (e)(5) (Maintenance of Information Used in 
Making any Determination) because in the collection of information for 
law enforcement and protective purposes it is impossible to determine in 
advance what information is accurate, relevant, timely, and complete. 
Compliance with (e)(5) would preclude Secret Service agents from using 
their investigative and protective training, and exercising good 
judgment to both conduct and report on investigations or other 
protective activities.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' ability to obtain, serve, and issue 
subpoenas, warrants, and other law enforcement mechanisms that may be 
filed under seal, or could result in disclosure of investigative or 
protective techniques, procedures, and evidence.
    (i) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act 
relating to individuals' rights to access and amend their records 
contained in the system. Therefore DHS is not required to establish 
rules or procedures pursuant to which individuals may seek a civil 
remedy for the agency's: Refusal to amend a record; refusal to comply 
with a request for access to records; failure to maintain accurate, 
relevant, timely and complete records; or failure to otherwise comply 
with an individual's right to access or amend records.
    37. The DHS/Secret Service--004 Protection Information system of 
records consists of electronic and paper records and will be used by DHS 
and its components. The DHS/Secret Service--004 Protection Information 
system 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 the protection of the 
President of the United States or other individuals and locations 
pursuant to Sections 3056 and 3056A of Title 18. The DHS/Secret 
Service--004 Protection Information system 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, as well as private corporate or other 
entities. The Secretary of Homeland Security has exempted this system 
from the following provisions of the Privacy Act, subject to the 
limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), 
and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of 
Homeland Security has exempted this system from the following provisions 
of the Privacy Act, subject to the 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)(1), (k)(2), and (k)(3). Exemptions from 
these particular subsections are justified, on

[[Page 80]]

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 or a protective inquiry to the existence of the 
investigation or inquiry, 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 the Secret Service's protective mission. Disclosure of the 
accounting would also permit the individual who is the subject of a 
record to impede the investigation or inquiry, to tamper with witnesses 
or evidence, and to avoid detection or apprehension, which would 
undermine the entire investigative or inquiry 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, or protective inquiry to the existence of the 
investigation or inquiry, 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, 
or inquiry to tamper with witnesses or evidence, and to avoid detection 
or apprehension. Amendment of the records could interfere with ongoing 
investigations, law enforcement or protective activities and/or could 
disclose security-sensitive information that could be detrimental to 
homeland security or the protective mission of the Secret Service.
    (c) From subsection (e)(1) (Relevancy and Necessity of Information) 
because in the course of investigations into potential violations of 
Federal law or protective inquiries, 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 or 
protective inquiry. In the interests of effective law enforcement and/or 
the protective mission of the Secret Service, it is appropriate to 
retain all information that may aid in establishing patterns of unlawful 
activity, or a possible threat to an individual, location or event 
protected or secured by the Secret Service.
    (d) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from the 
subject of an investigation or protective inquiry would alert the 
subject to the nature or existence of an investigation or inquiry, 
thereby interfering with the related investigation or inquiry and law 
enforcement or protective activities.
    (e) From subsection (e)(3) (Notice to Individuals Providing 
Information) because providing such detailed information would impede 
law enforcement or protective activities in that it could compromise 
investigations or inquiries by: Revealing the existence of an otherwise 
confidential investigation or inquiry and thereby provide an opportunity 
for the subject of an investigation or inquiry to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative or protective efforts; reveal the identity of witnesses, 
thereby providing an opportunity for the subjects of the investigations 
or inquiries or others to harass, intimidate, or otherwise interfere 
with the collection of evidence or other information from such 
witnesses; or reveal the identity of confidential informants, which 
would negatively affect the informant's usefulness in any ongoing or 
future investigations or protective activities and discourage members of 
the public from cooperating as confidential informants in any future 
investigations or protective activities.
    (f) From subsections (e)(4)(G), (H), and (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 the 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 and protective efforts and 
reveal the identities of witnesses, and potential witnesses, and 
confidential informants.
    (g) From subsection (e)(5) (Maintenance of Information Used in 
Making any Determination) because in the collection of information for 
law enforcement and protective purposes it is impossible to determine in 
advance what information is accurate, relevant, timely, and complete. 
Compliance with (e)(5) would preclude Secret Service agents from using 
their investigative and protective training and exercising good judgment 
to both conduct and report on investigations or other protective 
activities.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 or 
protective techniques, procedures, and evidence.
    (i) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act 
relating to individuals' rights to access and amend their records 
contained in the system.

[[Page 81]]

Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    38. The DHS/ALL--025 Law Enforcement Authority in Support of the 
Protection of Property Owned or Occupied by the Department of Homeland 
Security system of records consists of electronic and paper records and 
will be used by DHS and its components. The DHS/ALL--025 Law Enforcement 
Authority in Support of the Protection of Property Owned or Occupied by 
the Department of Homeland Security system 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 
there under; and national security and intelligence activities. The DHS/
ALL--025 Law Enforcement Authority in Support of the Protection of 
Property Owned or Occupied by the Department of Homeland Security system 
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 the 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)(1), (k)(2), and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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.
    39. The DHS/ALL--017 General Legal Records system of records 
consists of electronic and paper records and will be used by DHS and its 
components. The DHS/ALL--017 General Legal Records 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; national security and intelligence activities; 
and protection of the President of the United States or other 
individuals pursuant to section 3056 and 3056A of Title 18. The DHS/
ALL--017 General Legal 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

[[Page 82]]

international government agencies. The Secretary of Homeland Security 
has exempted this system from the following provisions of the Privacy 
Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and 
(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), 
(e)(5) and (e)(8); (f), and (g), pursuant to exemption 5 U.S.C. 
552a(j)(2). Additionally, the Secretary of Homeland Security has 
exempted this system from the following provisions of the Privacy Act, 
subject to the limitations set forth in 5 U.S.C. 552a (c)(3), (d), 
(e)(1), (e)(4)(G), (e)(4)(H), (I), and (f), pursuant to 5 U.S.C. 
552a(k)(1), (k)(2), (k)(3) and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G), (H), and (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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.

[[Page 83]]

    (i) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    40. The DHS/ALL--023 Personnel Security Management system of records 
consists of electronic and paper records and will be used by DHS and its 
components. The DHS/ALL--023 Personnel Security Management system 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; national security and intelligence activities; 
and protection of the President of the United States or other 
individuals pursuant to section 3056 and 3056A of Title 18. The DHS/
ALL--023 Personnel Security Management system 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 the 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)(1), (k)(2), (k)(3), and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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), (H), and (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.
    41. The DHS/NPPD/US-VISIT--001 Arrival and Departure Information 
system of records notice is a system for the storage and use of 
biographic, biometric indicator, and encounter data consolidated from 
various systems regarding aliens who have applied for entry, entered, or 
departed the United States. Information in the DHS/NPPD/US-VISIT--001 
Arrival and Departure Information system of records notice is used 
primarily to facilitate the investigation of subjects of interest who 
may have violated their immigration status by remaining in the United 
States beyond their authorized stay; thereby supporting the several and 
varied missions and functions of DHS, including but not limited to: the 
enforcement of civil and criminal laws (including the immigration law); 
investigations, inquiries; national security and intelligence activities 
in support of the DHS mission to identify and prevent acts of terrorism 
against the United States. The information

[[Page 84]]

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 the limitations set forth in 5 U.S.C. 552a(c)(3) and 
(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and 
(e)(8); (f); and (g) pursuant to 5 U.S.C. 552a(j)(2). Additionally, the 
Secretary of Homeland Security has exempted this system from the 
following provisions of the Privacy Act, subject to the limitations set 
forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H); and (f) 
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identities of witnesses in investigations, thereby providing 
an opportunity for the subjects of the investigations or others to 
harass, intimidate, or otherwise interfere with the collection of 
evidence or other information from such witnesses; or reveal the 
identity of confidential informants, which would negatively affect the 
informant's usefulness in any ongoing or future investigations and 
discourage members of the public from cooperating as confidential 
informants in any future investigations.
    (f) From subsections (e)(4)(G) and (H) (Agency Requirements), and 
(f) (Agency Requirements) 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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' ability to obtain, serve, and issue 
subpoenas, warrants, and other law enforcement mechanisms that may be 
filed under

[[Page 85]]

seal, and could result in disclosure of investigative techniques, 
procedures, and evidence.
    (i) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act 
relating to individuals' rights to access and amend their records 
contained in the system. Therefore DHS is not required to establish 
rules or procedures pursuant to which individuals may seek a civil 
remedy for the agency's: refusal to amend a record; refusal to comply 
with a request for access to records; failure to maintain accurate, 
relevant, timely and complete records; or failure to otherwise comply 
with an individual's right to access or amend records.
    42. The DHS/NPPD/US-VISIT--003 Technical Reconciliation Analysis 
Classification system of records (TRACS) consists of stand alone 
database and paper files that will be used by DHS and its components. 
This system of records will be used to perform a range of information 
management and analytic functions involving collecting, verifying, and 
resolving tracking of data primarily on individuals who are not United 
States citizens or legal permanent residents (LPRs). However, it will 
contain data on: (1.) U.S. citizens or LPRs who have a connection to the 
DHS mission (e.g., individuals who have submitted a visa application to 
the UK, or have made requests for a license or credential as part of a 
background check or security screening in connection with their hiring 
or retention, performance of a job function or the issuance of a license 
or credential for employment at DHS); (2.) U.S. citizens and LPRs who 
have an incidental connection to the DHS mission (e.g., individuals 
living at the same address as individuals who have remained in this 
country beyond their authorized stays); and (3.) individuals who have, 
over time, changed their status and became U.S. citizens or LPRs. The 
DHS/NPPD/US-VISIT--003 Technical Reconciliation Analysis Classification 
system of records is managed and maintained by the US-VISIT Program. The 
data contained in the DHS/NPPD/US-VISIT--003 Technical Reconciliation 
Analysis Classification system of records is primarily derived from DHS/
NPPD/U.S-VISIT--001 Arrival and Departure Information System (ADIS); 
DHS/CBP--011 TECS; DHS/ICE--001 Student and Exchange Visitor Information 
System (SEVIS); DHS/ICE/CBP/USCIS--001--03 Enforcement Operational 
Immigration Records (ENFORCE/IDENT); DHS/ICE--011 Removable Alien 
Records System (RARS); DHS/USCIS--001 Alien File (A-File) and Central 
Index System (CIS); DHS/USCIS--007 Benefits Information System covering 
Computer Linked Application Information Management System 3 (Claims 3) 
and Computer Linked Application Information Management System 4 (Claims 
4); DHS/USCIS Refugees, Asylum & Parole System (RAPS); and from the 
Department of State's Consolidated Consular Database (CCD). The DHS/
NPPD/US-VISIT--003 Technical Reconciliation Analysis Classification 
system of records also contains data from web searches for addresses and 
phone numbers. This data is collected by, on behalf of, in support of, 
or in cooperation with DHS and its components. The Secretary of Homeland 
Security has exempted this system from the following provisions of the 
Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) 
and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), 
(e)(5) and (e)(8); (f); and (g) pursuant to 5 U.S.C. 552a(j)(2). 
Additionally, the Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to the 
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)(1), (k)(2), 
and (k)(5). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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

[[Page 86]]

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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G), and (e)(4)(H) (Agency Requirements) 
because portions of this system are exempt from the individual access 
provisions of subsection (d) which exempts providing access because it 
could alert a subject to the nature or existence of an investigation, 
and thus there could be no procedures for that particular data. 
Procedures do exist for access for those portions of the system that are 
not exempted.
    (g) From subsection (e)(4)(I) (Agency Requirements) because 
providing such source information would impede enforcement or 
intelligence by compromising the nature or existence of a confidential 
investigation.
    (h) From subsection (e)(5) (Collection of Information) because in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (i) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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.
    (j) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of subsection 
(d).
    (k) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.
    43. The DHS/USCG--013 Marine Information for Safety and Law 
Enforcement system of records consists of electronic and paper records 
and will be used by DHS and its components. The DHS/USCG--013 Marine 
Information for Safety and Law Enforcement 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 there under; national security and intelligence activities. 
The DHS/USCG--013 Marine Information for Safety and Law Enforcement 
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 the limitations set 
forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f); and (g) 
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland 
Security has exempted this system from the following provisions of the 
Privacy Act, subject to the limitations set forth in 5 U.S.C. 
552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H); (I); and (f) pursuant to 
5 U.S.C. 552a(k)(2). 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 the 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.

[[Page 87]]

    (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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G), (H), and (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    44. The DHS/USCG--030 Merchant Seaman's Records system of records 
consists of electronic and paper records and will be used by DHS and its 
components. The DHS/USCG--030 Merchant Seaman's Records 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 there under. The DHS/USCG--030 Merchant 
Seaman's 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 the limitations set forth in 5 U.S.C. 552a(c)(3); (d); 
(e)(1), (e)(4)(G), (e)(4)(H),

[[Page 88]]

(e)(4)(I); and (f) pursuant to 5 U.S.C. 552a(k)(2). 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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.
    45. The DHS/CBP--006 Automated Targeting system of records performs 
screening of both inbound and outbound cargo, travelers, and 
conveyances. As part of this screening function and to facilitate DHS's 
border enforcement mission, the DHS/CBP--006 Automated Targeting system 
of records compares information received with CBP's law enforcement 
databases, the Federal Bureau of Investigation Terrorist Screening 
Center's Terrorist Screening Database (TSDB), information on outstanding 
wants or warrants, information from other government agencies regarding 
high-risk parties, and risk-based rules developed by analysts using law 
enforcement data, intelligence, and past case experience. The modules 
also facilitate analysis of the screening results of these comparisons. 
This supports the several and varied missions and functions of DHS, 
including but not limited to: The enforcement of civil and criminal laws 
(including the immigration law); investigations, inquiries; national 
security and intelligence activities in support of the DHS mission to 
identify and prevent acts of terrorism against the United States. The 
information 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. Certain records 
or information in DHS/CBP--006 Automated Targeting system of records are 
exempt from the Privacy Act. With respect to the ATS-P module, exempt 
records are the targeting rule sets, risk assessment analyses, and 
business confidential information contained in the PNR that relates to 
the air and vessel carriers. No exemption shall be asserted regarding 
PNR data about the requester, provided by either the requester or a 
booking agent, brokers, or another person on the requester's behalf. 
This information, upon request, may be provided to the requester in the 
form in which it was collected from the respective carrier, but may not 
include certain business confidential information of the air carrier 
that is also contained in the record, such as use and application of 
frequent flier miles, internal annotations to the air fare, etc. For 
other DHS/CBP--006 Automated Targeting system of records modules the 
only information maintained in the system is the targeting rule sets, 
risk assessment analyses, and a pointer to the data from the source 
system of records. The Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to the 
limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), 
and (4); (e)(1), (2), (3), (4)(G) through

[[Page 89]]

(I), (e)(5), and (8); (f); and (g) pursuant to 5 U.S.C. 552a(j)(2). 
Additionally, the Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to the 
limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), 
and (4); (e)(1), (2), (3), (4)(G) through (I), (e)(5), and (8); (f); and 
(g) pursuant to 5 U.S.C. 552a(k)(2). These exemptions also apply to the 
extent that information in this system of records is recompiled or is 
created from information contained in other systems of records. After 
conferring with the appropriate component or agency, DHS may waive 
applicable exemptions in appropriate circumstances and where it would 
not appear to interfere with or adversely affect the law enforcement 
purposes of the systems from which the information is recompiled or in 
which it is contained. 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 Disclosure) 
because making available to a record subject the accounting of 
disclosures from records concerning him or her would specifically reveal 
any investigative interest in the individual. Revealing this information 
could reasonably be expected to compromise ongoing efforts to 
investigate a known or suspected criminal or terrorist, or other person 
of interest, by notifying the record subject that he or she is under 
investigation. This information could also permit the record subject to 
take measures to impede the investigation, e.g., destroy evidence, 
intimidate potential witnesses, or flee the area to avoid or impede the 
investigation. 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 Disclosure) because making available to a record subject 
the accounting of disclosures from records concerning him or her would 
specifically reveal any investigative interest in the individual. 
Revealing this information could reasonably be expected to compromise 
ongoing efforts to investigate a known or suspected terrorist by 
notifying the record subject that he or she is under investigation. This 
information could also permit the record subject to take measures to 
impede the investigation, e.g., destroy evidence, intimidate potential 
witnesses, or flee the area to avoid or impede the investigation.
    (b) From subsection (c)(4) (Accounting for Disclosure, notice of 
dispute) because certain records in this system are exempt from the 
access and amendment provisions of subsection (d), this requirement to 
inform any person or other agency about any correction or notation of 
dispute that the agency made with regard to those records, should not 
apply.
    (c) From subsections (d)(1), (2), (3), and (4) (Access to Records) 
because these provisions concern individual access to and amendment of 
certain records contained in this system, including law enforcement, 
counterterrorism, and investigatory records. Compliance with these 
provisions could alert the subject of an investigation to the fact and 
nature of the investigation, and/or the investigative interest of 
intelligence or law enforcement agencies; compromise sensitive 
information related to law enforcement, including matters bearing on 
national security; interfere with the overall law enforcement process by 
leading to the destruction of evidence, improper influencing of 
witnesses, fabrication of testimony, and/or flight of the subject; could 
identify a confidential source; reveal a sensitive investigative or 
intelligence technique; or constitute a potential danger to the health 
or safety of law enforcement personnel, confidential informants, and 
witnesses. Amendment of these records would interfere with ongoing 
counterterrorism or law enforcement investigations and analysis 
activities and impose an impossible administrative burden by requiring 
investigations, analyses, and reports to be continuously reinvestigated 
and revised.
    (d) From subsection (e)(1) (Relevancy and Necessity of Information) 
because it is not always possible for DHS or other agencies to know in 
advance what information is relevant and necessary for it to complete 
screening of cargo, conveyances, and passengers. Information relating to 
known or suspected criminals or terrorists or other persons of interest, 
is not always collected in a manner that permits immediate verification 
or determination of relevancy to a DHS purpose. For example, during the 
early stages of an investigation, it may not be possible to determine 
the immediate relevancy of information that is collected--only upon 
later evaluation or association with further information, obtained 
subsequently, may it be possible to establish particular relevance to a 
law enforcement program. Lastly, this exemption is required because DHS 
and other agencies may not always know what information about an 
encounter with a known or suspected criminal or terrorist or other 
person of interest will be relevant to law enforcement for the purpose 
of conducting an operational response.
    (e) From subsection (e)(2) (Collection of Information from 
Individuals) because application of this provision could present a 
serious impediment to counterterrorism or other law enforcement efforts 
in that it would put the subject of an investigation, study or analysis 
on notice of that fact, thereby permitting the subject to engage in 
conduct designed to frustrate or impede that activity.

[[Page 90]]

The nature of counterterrorism, and law enforcement investigations is 
such that vital information about an individual frequently can be 
obtained only from other persons who are familiar with such individual 
and his/her activities. In such investigations it is not feasible to 
rely solely upon information furnished by the individual concerning his 
own activities.
    (f) From subsection (e)(3) (Notice to Subjects), to the extent that 
this subsection is interpreted to require DHS to provide notice to an 
individual if DHS or another agency receives or collects information 
about that individual during an investigation or from a third party. 
Should the subsection be so interpreted, exemption from this provision 
is necessary to avoid impeding counterterrorism or other law enforcement 
efforts by putting the subject of an investigation, study or analysis on 
notice of that fact, thereby permitting the subject to engage in conduct 
intended to frustrate or impede that activity.
    (g) From subsections (e)(4)(G), (H) and (I) (Agency Requirements) 
because portions of this system are exempt from the access and amendment 
provisions of subsection (d).
    (h) From subsection (e)(5) (Collection of Information) because many 
of the records in this system coming from other systems of records are 
derived from other domestic and foreign agency record systems and 
therefore it is not possible for DHS to vouch for their compliance with 
this provision; however, the DHS has implemented internal quality 
assurance procedures to ensure that data used in its screening processes 
is as complete, accurate, and current as possible. In addition, in the 
collection of information for law enforcement and counterterrorism 
purposes, it is impossible to determine in advance what information is 
accurate, relevant, timely, and complete. With the passage of time, 
seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light. The 
restrictions imposed by (e)(5) would limit the ability of those 
agencies' trained investigators and intelligence analysts to exercise 
their judgment in conducting investigations and impede the development 
of intelligence necessary for effective law enforcement and 
counterterrorism efforts.
    (i) From subsection (e)(8) (Notice on Individuals) because to 
require individual notice of disclosure of information due to compulsory 
legal process would pose an impossible administrative burden on DHS and 
other agencies and could alert the subjects of counterterrorism or law 
enforcement investigations to the fact of those investigations when not 
previously known.
    (j) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of subsection 
(d). Access to, and amendment of, system records that are not exempt or 
for which exemption is waived may be obtained under procedures described 
in the related SORN or subpart B of this part.
    (k) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    46. The DHS/CBP-007 Border Crossing Information System of Records 
consists of electronic and paper records and will be used by DHS and its 
Components. The DHS/CBP-007 Border Crossing Information 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 law enforcement, border 
security, and intelligence activities. The DHS/CBP-007 Border Crossing 
Information 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. At the time of border crossing and during the 
process of determining admissibility, CBP collects two types of data for 
which it claims different exemptions.
    (a) CBP will not assert any exemption to limit an individual from 
accessing or amending his or her record with respect to information 
maintained in the system that is collected from a person at the time of 
crossing and submitted by that person's air, sea, bus, or rail carriers. 
The Privacy Act requires DHS to maintain an accounting of the 
disclosures made pursuant to all routine uses. Pursuant to 5 U.S.C. 
552a(j)(2), CBP will not disclose the fact that a law enforcement or 
intelligence agency has sought particular records because it may affect 
ongoing law enforcement activities. The Secretary of Homeland Security 
has exempted this system from subsections (c)(3), (e)(8), and (g) of the 
Privacy Act of 1974, as amended, as is necessary and appropriate to 
protect this information. Further, DHS will claim exemption from 
subsection (c)(3) of the Privacy Act of 1974, as amended, pursuant to 5 
U.S.C. 552a(k)(2) as is necessary and appropriate to protect this 
information. 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:
    (i) 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

[[Page 91]]

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.
    (ii) 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.
    (iii) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    (b) Additionally, this system contains records or information 
recompiled from or created from information contained in other systems 
of records that are exempt from certain provisions of the Privacy Act. 
For these records or information only, 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)(1)-(4); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), (e)(5) and (e)(8); (f); and (g). Additionally, the Secretary 
of Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted this 
system from the following provisions of the Privacy Act, 5 U.S.C. 
552a(c)(3); (d)(1)-(4); (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:
    (i) From subsection (c)(3) and (c)(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.
    (ii) From subsection (d) (Access to Records) because access to the 
6records 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, 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.
    (iii) 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.
    (iv) 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.
    (v) 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.
    (vi) 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, potential witnesses, and 
confidential informants.
    (vii) 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.
    (viii) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS's ability to obtain, serve, and

[[Page 92]]

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.
    (ix) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    47. The Visa Security Program Records (VSPR) system of records 
consists of electronic and paper records and will be used by the 
Department of Homeland Security (DHS) U.S. Immigration and Customs 
Enforcement (ICE). VSPR consists of information created in support of 
the Visa Security Program, the purpose of which is to identify persons 
who may be ineligible for a U.S. visa because of criminal history, 
terrorism association, or other factors and convey that information to 
the State Department, which decides whether to issue the visa. VSPR 
contains records on visa applicants for whom a visa security review is 
conducted. VSPR 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. 
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, portions 
of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), 
(e)(2), (e)(3), (e)(4)(G), and (e)(4)(H), (e)(5) and (e)(8); (f); and 
(g). Pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), this system is exempt 
from the following provisions of the Privacy Act, subject to the 
limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), (d), 
(e)(1), (e)(4)(G), (e)(4)(H), 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 
individual to the existence of an investigation in the form of a visa 
security review predicated on classified, national security, law 
enforcement, foreign government, or other sensitive information. 
Disclosure of the accounting would therefore present a serious 
impediment to ICE's Visa Security Program, immigration 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, thereby undermining the entire 
investigative process.
    (b) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could alert the individual 
to the existence of an investigation in the form of a visa security 
review predicated on classified, national security, law enforcement, 
foreign government, or other sensitive information. Revealing the 
existence of an otherwise confidential investigation could also provide 
the visa applicant an opportunity to conceal adverse information or take 
other actions that could thwart investigative efforts; and reveal the 
identity of other individuals with information pertinent to the visa 
security review, thereby providing an opportunity for the applicant to 
interfere with the collection of adverse or other relevant information 
from such individuals. Access to the records would therefore present a 
serious impediment to the enforcement of Federal immigration laws, law 
enforcement efforts and/or efforts to preserve national security. 
Amendment of the records could interfere with ICE's ongoing 
investigations and law enforcement activities and would impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated. In addition, permitting access and 
amendment to such information could disclose classified and other 
security-sensitive information that could be detrimental to national or 
homeland security.
    (c) From subsection (e)(1) (Relevancy and Necessity of Information) 
because in the course of investigations of visa applications, 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 interest of effective enforcement of 
Federal immigration laws, it is appropriate to retain all information 
that may be relevant to the determination whether an individual is 
eligible for a U.S. visa.
    (d) From subsection (e)(2) (Collection of Information From 
Individuals) because requiring that information be collected from the 
visa applicant would alert the subject to the fact of an investigation 
in the form of a visa security review, and to the existence of adverse 
information about the individual, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede immigration enforcement 
activities in that it could compromise investigations by: Revealing the 
existence of an otherwise confidential investigation and thereby provide 
an opportunity for the visa applicant to conceal adverse information, or 
take other actions that could thwart investigative efforts; Reveal the 
identity of other individuals with information pertinent to the visa 
security review, thereby providing an opportunity for the applicant to 
interfere with the collection of adverse or other relevant information 
from such individuals; or reveal the identity of confidential 
informants, which would negatively affect the informant's usefulness in 
any ongoing or future investigations and discourage members of the 
public from cooperating as confidential informants in any future 
investigations.

[[Page 93]]

    (f) From subsections (e)(4)(G) and (H) (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 and immigration enforcement 
efforts as described above.
    (g) From subsection (e)(5) (Collection of Information) because in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on DHS and other agencies and could 
alert the subjects of counterterrorism, law enforcement, or intelligence 
investigations to the fact of those investigations when not previously 
known.
    (i) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    48. The DHS/ICE-011 Immigration and Enforcement Operational Records 
system of records consists of electronic and paper records and will be 
used by DHS and its components. The DHS/ICE-011 Immigration and 
Enforcement Operational Records 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 
there under; and national security and intelligence activities. The DHS/
ICE-011 Immigration and Enforcement Operational 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 the limitations set 
forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(5), and (e)(8); (f); and (g) pursuant to 5 
U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has 
exempted this system from the following provisions of the Privacy Act, 
subject to the limitations set forth in 5 U.S.C. 552a(c)(3); (d); 
(e)(1), (e)(4)(G), (e)(4)(H); and (f) pursuant to 5 U.S.C. 552a(k)(2). 
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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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

[[Page 94]]

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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: Revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (f) From subsections (e)(4)(G) and (H) (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: Refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    49. The DHS/USCIS--009 Compliance Tracking and Management System of 
Records consists of electronic and paper files that will be used by DHS 
and its components. This system of records will be used to perform a 
range of information management and analytic functions involving 
minimizing misuse, abuse, discrimination, breach of privacy, and 
fraudulent use of SAVE and E-Verify. The Secretary of Homeland Security 
has exempted this system from the following provisions of the Privacy 
Act, subject to the limitation 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)(2). 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 the 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 the 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

[[Page 95]]

impossible administrative burden by requiring investigations to be 
continuously 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 interest 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), (H), and (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.
    50. The Immigration and Customs Enforcement (ICE)--006 Intelligence 
Records System (IIRS) consists of electronic and paper records and will 
be used by the Department of Homeland Security (DHS). IIRS 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. IIRS contains information that is collected by other federal 
and foreign government agencies and may contain personally identifiable 
information. Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy 
Act, portions of this system are exempt from 5 U.S.C. 552a(c)(3) and 
(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and 
(e)(8); (f), and (g). Pursuant to 5 U.S.C. 552a(k)(2), this system is 
exempt from the following provisions of the Privacy Act, subject to the 
limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), (d), 
(e)(1), (e)(4)(G), (e)(4)(H), 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 the 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by: revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of

[[Page 96]]

the investigations or others to harass, intimidate, or otherwise 
interfere with the collection of evidence or other information from such 
witnesses; or reveal the identity of confidential informants, which 
would negatively affect the informant's usefulness in any ongoing or 
future investigations and discourage members of the public from 
cooperating as confidential informants in any future investigations.
    (f) From subsections (e)(4)(G) and (H) (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    51. The DHS/ALL--027 The History of the Department of Homeland 
Security System of Records consists of electronic and paper records and 
will be used by DHS and its components. The DHS/ALL--027 The History of 
the Department of Homeland Security 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; national security and intelligence activities; and 
protection of the President of the United States or other individuals 
pursuant to section 3056 and 3056A of Title 18. The DHS/ALL--027 The 
History of the Department of Homeland Security System of Records contain 
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) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), (e)(5), (e)(8), (e)(12); (f); (g)(1); and (h) pursuant to 5 
U.S.C. 552a(j)(2). Additionally, 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)(1), (k)(2), (k)(3), and (k)(5). 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

[[Page 97]]

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 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. 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.
    (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) (Computer Matching) if the agency is a 
recipient agency or a source agency in a matching program with a non-
Federal agency, with respect to any establishment or revision of a 
matching program, at least 30 days prior to conducting such program, 
publish in the Federal Register notice of such establishment or 
revision.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    (k) From subsection (h) (Legal Guardians) the parent of any minor, 
or the legal guardian of any individual who has been declared to be 
incompetent due to physical or mental incapacity or age by a court of 
competent jurisdiction, may act on behalf of the individual.
    52. The DHS/ALL--031 ISE SAR Initiative System of Records consists 
of electronic records and will be used by DHS and its components. The 
DHS/ALL--031 ISE SAR Initiative 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 
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 DHS/ALL--031 ISE SAR Initiative 
System of Records contains information that is collected by, on behalf 
of, in support of, or in cooperation with DHS, its components, as well 
as other federal, state, local, tribal, or foreign agencies or private 
sector organization 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 the limitations set forth in 5 U.S.C. 552a(c)(3) and 
(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), 
(e)(5), (e)(8), and (e)(12); (f); (g)(1); and (h) of the Privacy Act 
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland 
Security has exempted this system from the following provisions of the 
Privacy Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); 
(d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) of the Privacy Act 
pursuant to 5 U.S.C. 552a(k)(2) and (k)(3). 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 (c)(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

[[Page 98]]

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 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. 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.
    (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) (Computer Matching) if the agency is a 
recipient agency or a source agency in a matching program with a non-
Federal agency, with respect to any establishment or revision of a 
matching program, at least 30 days prior to conducting such program, 
publish in the Federal Register notice of such establishment or 
revision.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    (k) From subsection (h) (Legal Guardians) the parent of any minor, 
or the legal guardian of any individual who has been declared to be 
incompetent due to physical or mental incapacity or age by a court of 
competent jurisdiction, may act on behalf of the individual.
    53. The DHS/USCIS-012 CIDR System of Records consists of electronic 
and paper records and will be used by DHS and its components. The DHS/
USCIS-012 CIDR 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; 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 DHS/USCIS-012 CIDR 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 PII 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

[[Page 99]]

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)(1) and (k)(2). 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 the 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 could 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 the 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 impossible administrative burden by requiring 
investigations to be continuously 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.
    54. The DHS/USCG--008 Courts Martial Case Files System of Records 
consists of electronic and paper records and will be used by DHS/USCG. 
The DHS/USCG--008 Courts Martial Case Files System of Records is a 
repository of information held by DHS/USCG 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/USCG--008 Courts Martial Case Files 
System of Records contains information that is collected by, on behalf 
of, in support of, or in cooperation with DHS/USCG 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 the limitations set 
forth in 5 U.S.C. 552a(c)(3) and (c)(4); (d); (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f); and (g) 
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland 
Security has exempted this system from the following provisions of the 
Privacy Act, subject to the 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)(1) and (k)(2). 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 (c)(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 the 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 the investigation,

[[Page 100]]

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 impossible administrative burden by 
requiring investigations to be continuously 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise investigations by revealing the existence of an otherwise 
confidential investigation and thereby provide an opportunity for the 
subject of an investigation to conceal evidence, alter patterns of 
behavior, or take other actions that could thwart investigative efforts; 
reveal the identity of witnesses in investigations, thereby providing an 
opportunity for the subjects of the investigations or others to harass, 
intimidate, or otherwise interfere with the collection of evidence or 
other information from such witnesses; or reveal the identity of 
confidential informants, which would negatively affect the informant's 
usefulness in any ongoing or future investigations and discourage 
members of the public from cooperating as confidential informants in any 
future investigations.
    (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 in 
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 (e)(5) would preclude 
DHS agents from using their investigative training and exercise of good 
judgment to both conduct and report on investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' 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 (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act relating to individuals' 
rights to access and amend their records contained in the system. 
Therefore DHS is not required to establish rules or procedures pursuant 
to which individuals may seek a civil remedy for the agency's: refusal 
to amend a record; refusal to comply with a request for access to 
records; failure to maintain accurate, relevant, timely and complete 
records; or failure to otherwise comply with an individual's right to 
access or amend records.
    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,

[[Page 101]]

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.
    56. The DHS/TSA-023 Workplace Violence Prevention Program System of 
Records consists of electronic and paper records and is used by the TSA 
in the administration of its Workplace Violence Prevention Program, an 
internal TSA program designed to prevent and respond to workplace 
violence. The DHS/TSA-023 Workplace Violence Prevention Program System 
of Records is a repository of information held by TSA 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 there under. The DHS/TSA-023 Workplace 
Violence Prevention Program System of Records contains information 
collected by TSA, 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 portions of this system from the following provisions of 
the Privacy Act, subject to the limitations set forth in (c)(3); (d); 
(e)(1), (e)(4)(G); (e)(4)(H); (e)(4)(I); and (f) of the Privacy Act 
pursuant to 5 U.S.C. 552a(k)(2). 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

[[Page 102]]

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.
    57. The DHS/OPS-002 National Operations Center Tracker and Senior 
Watch Officer Logs Records System of Records consists of electronic and 
paper records and will be used by DHS and its components. The DHS/OPS-
002 National Operations Center Tracker and Senior Watch Officer Logs 
Records 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 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 DHS/OPS-002 National Operations Center Tracker and Senior 
Watch Officer Logs 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 is 
exempting 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)(1), (k)(2), and (k)(3). 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)

[[Page 103]]

(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.
    59. The DHS/NPPD-001 NICC Records System of Records consists of 
electronic and paper records and will be used by DHS and its components. 
The DHS/NPPD-001 NICC Records 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 
there under; national security and intelligence activities The DHS/NPPD-
001 NICC 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)(1) and (k)(2). 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.
    64. The DHS/USCIS-015 Electronic Immigration System-2 Account and 
Case Management System of Records consists of electronic and paper 
records and will be used by DHS and its components. The DHS/USCIS-015 
Electronic Immigration System-2 Account and Case Management is a 
repository of information held by USCIS to serve its mission of 
processing immigration benefits. This system also supports certain other 
DHS 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/USCIS-015 Electronic Immigration System-2 Account 
and Case Management 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. This system is exempted

[[Page 104]]

from the following provisions of the Privacy Act pursuant to 5 U.S.C. 
552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I); and (f). Additionally, many of the functions in this system 
require retrieving records from law enforcement systems. Where a record 
received from another system has been exempted in that source system 
under 5 U.S.C. 552a(j)(2), DHS will claim the same exemptions for those 
records that are claimed for the original primary systems of records 
from which they originated and claims any additional exemptions in 
accordance with this rule. 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 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/or 
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.
    65. The DHS/USCIS-016 Electronic Immigration System-3 Automated 
Background Functions System of Records consists of electronic and paper 
records and will be used by DHS and its components. The DHS/USCIS-016 
Electronic Immigration System-3 Automated Background Functions System of 
Records is a repository of information held by USCIS to serve its 
mission of processing immigration benefits. This system also supports 
certain other DHS 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/USCIS-016 Electronic Immigration 
System-3 Automated Background Functions 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. This system is 
exempted from the following provisions of the Privacy Act pursuant to 5 
U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), 
(e)(4)(H), (e)(4)(I); and (f). Additionally, many of the functions in 
this system require retrieving records from law enforcement systems. 
Where a record received from another system has been exempted in that 
source system under 5 U.S.C. 552a(j)(2), DHS will claim the same 
exemptions for those records that are claimed for the original primary 
systems of records from which they originated and claims any additional 
exemptions in accordance with this rule. 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 as well as the recipient 
agency. Disclosure of

[[Page 105]]

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/or 
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.
    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

[[Page 106]]

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.
    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, 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

[[Page 107]]

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.
    68. The DHS OPS-003 Operations Collection, Planning, Coordination, 
Reporting, Analysis, and Fusion System of Records consists of electronic 
and paper records and will be used by DHS and its components. The DHS 
OPS-003 Operations Collection, Planning, Coordination, Reporting, 
Analysis, and Fusion System of Records is a repository of information 
held by DHS to serve its several and varied missions and functions. This 
system also supports certain other DHS programs whose functions include, 
but are not limited to, 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 DHS OPS-003 Operations Collection, Planning, Coordination, 
Reporting, Analysis, and Fusion 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. This system is exempted from the 
following provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(1), 
(k)(2), (k)(3): 5 U.S.C. 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) (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) 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.
    69. The DHS/CBP--017 Analytical Framework for Intelligence (AFI) 
System of Records consists of electronic and paper records and will be 
used by DHS and its components. The DHS/CBP--017 Analytical Framework 
for Intelligence (AFI) System of

[[Page 108]]

Records is a repository of information held by DHS to enhance DHS's 
ability to: Identify, apprehend, and/or prosecute individuals who pose a 
potential law enforcement or security risk; aid in the enforcement of 
the customs and immigration laws, and other laws enforced by DHS at the 
border; and enhance United States security. This system also supports 
certain other DHS 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/CBP--017 Analytical Framework for 
Intelligence (AFI) 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.
    (a) The Secretary of Homeland Security has exempted this system from 
certain provisions of the Privacy Act as follows:
    (1) Pursuant to 5 U.S.C. 552a(j)(2), the system is exempt from 5 
U.S.C. 552a(c)(3) and (c)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), 
(e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g).
    (2) Pursuant to 5 U.S.C. 552a(j)(2), the system (except for any 
records that were ingested by AFI where the source system of records 
already provides access and/or amendment under the Privacy Act) is 
exempt from 5 U.S.C. 552a(d)(1), (d)(2), (d)(3), and (d)(4).
    (3) Pursuant to 5 U.S.C. 552a(k)(1), the system is exempt from 5 
U.S.C. 552a(c)(3); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f).
    (4) Pursuant to 5 U.S.C. 552a(k)(1), the system is exempt from 
(d)(1), (d)(2), (d)(3), and (d)(4).
    (5) Pursuant to 5 U.S.C. 552a(k)(2), the system is exempt from 5 
U.S.C. 552a(c)(3); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f).
    (6) Pursuant to 5 U.S.C. 552a(k)(2),the system (except for any 
records that were ingested by AFI where the source system of records 
already provides access and/or amendment under the Privacy Act) is 
exempt from (d)(1), (d)(2), (d)(3), and (d)(4).
    (b) 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:
    (1) 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.
    (2) 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.
    (3) 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 and national security, it is appropriate to 
retain all information that may aid in establishing patterns of unlawful 
activity.
    (4) 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 and national security 
activities.
    (5) From subsection (e)(3) (Notice to Individuals) because providing 
such detailed information could impede law enforcement and national 
security by compromising the existence of a confidential investigation 
or reveal the identity of witnesses or confidential informants.
    (6) 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 109]]

themselves in the system would undermine investigative efforts and 
reveal the identities of witnesses, and potential witnesses, and 
confidential informants.
    (7) 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.
    (8) 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.
    (9) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    70. DHS/USCIS-ICE-CBP-001 Alien File, Index, and National File 
Tracking System of Records consists of electronic and paper records and 
will be used by USCIS, ICE, and CBP. DHS/USCIS-ICE-CBP-001 Alien File, 
Index, and National File Tracking 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. DHS/
USCIS-ICE-CBP-001 Alien File, Index, and National File Tracking 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, territorial, 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(j)(2): 5 U.S.C. 552a(c)(3) and (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), (g)(1), 
and (h). Additionally, 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)(1) and (k)(2): 5 U.S.C. 552a(c)(3), (d), (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), and (f). Exemptions from these 
particular subsections may be 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 Individuals) because providing 
such detailed information could impede law enforcement by compromising 
the existence of a confidential investigation or reveal the identity of 
witnesses, DHS employees, 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

[[Page 110]]

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, 
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. Compliance with subsection (e)(5) would 
impede DHS officials' ability to effectively use their investigative 
training and exercise good judgment to both conduct and report on 
investigations.
    (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) (Computer Matching) if the agency is a 
recipient agency or a source agency in a matching program with a non-
Federal agency, with respect to any establishment or revision of a 
matching program, at least 30 days prior to conducting such program, 
publish in the Federal Register notice of such establishment or 
revision.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act. (k) 
From subsection (h) (Legal Guardians) if the parent of any minor, or the 
legal guardian of any individual who has been declared to be incompetent 
due to physical or mental incapacity or age by a court of competent 
jurisdiction, is acting on behalf of the individual.
    71. The Department of Homeland Security (DHS)/Transportation 
Security Administration (TSA)-021 TSA Pre[check] \TM\ Application 
Program System of Records consists of electronic and paper records and 
will be used by DHS/TSA. The DHS/TSA-021 Pre[check] \TM\ Application 
Program System of Records is a repository of information held by DHS/TSA 
on individuals who voluntarily provide personally identifiable 
information (PII) to TSA in return for enrollment in a program that will 
make them eligible for expedited security screening at designated 
airports. This System of Records contains PII in biographic application 
data, biometric information, pointer information to law enforcement 
databases, payment tracking, and U.S. application membership decisions 
that support the TSA Pre[check] \TM\ Application Program membership 
decisions. The DHS/TSA-021 TSA Pre[check] \TM\ Application 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 PII collected by other federal, state, local, tribal, 
territorial, or foreign government agencies. The Secretary of Homeland 
Security, pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), has exempted this 
system from the following provisions of the Privacy Act: 5 U.S.C. 
552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); and (f). Where a 
record received from another system has been exempted in that source 
system under 5 U.S.C. 552a(k)(1) and (k)(2), DHS will claim the same 
exemptions for those records that are claimed for the original primary 
systems 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) (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 also would 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

[[Page 111]]

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), (H), and (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 the 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, potential witnesses, and confidential 
informants.
    72. The DHS/ICE-014 Homeland Security Investigations Forensic 
Laboratory System of Records consists of electronic and paper records 
that will be used by DHS and its components. The DHS/ICE-014 Homeland 
Security Investigations Forensic Laboratory System of Records contains 
records of evidence and cases submitted to the HSI-FL. This information 
will include information on the individual submitting the request, 
identify the evidence submitted, track the evidence as it moves 
throughout the HSI-FL, capture case notes and results of examinations, 
store electronic images of evidence, and produce reports of findings. 
Other case-related records are maintained, including descriptions of 
expert witness testimony provided by HSI-FL employees. Records in the 
DHS/ICE-014 Homeland Security Investigations Forensic Laboratory System 
of Records also include the library of genuine, altered, and counterfeit 
travel and identity documents provided to the HSI-FL by international 
organizations, government agencies, and law enforcement organizations 
from across the United States and around the world to research methods 
of document production and authenticate documents through comparative 
forensic examinations. The DHS/ICE-014 Homeland Security Investigations 
Forensic Laboratory 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 
(PII) collected by other federal, state, local, tribal, foreign, or 
international government agencies. The Secretary of the Department of 
Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), 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), (c)(4); (d); (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f); 
and (g). Additionally, the Secretary of Homeland Security, pursuant to 5 
U.S.C. 552a(k)(2), 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). Where a record received from another system has been exempted in 
that source system under 5 U.S.C. 552a(j)(2), DHS will claim the same 
exemptions for those records that are claimed for the original primary 
systems 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.

[[Page 112]]

    (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. 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.
    (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 (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of 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

[[Page 113]]

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, potential witnesses, and 
confidential informants.
    74. The DHS/CBP-022 Electronic Visa Update System (EVUS) System of 
Records consists of electronic and paper records and will be used by DHS 
and its components. EVUS is a repository of information held by DHS/CBP 
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 there under; and 
national security and intelligence activities. EVUS 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, 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), 
(e)(8), and (g). Additionally, the Secretary of Homeland Security, 
pursuant to 5 U.S.C. 552a(k)(2) has exempted this system from the 
following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3). 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 (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.
    (c) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    75. The DHS/ICE-015 LeadTrac System of Records consists of 
electronic and paper records and will be used by ICE investigative and 
homeland security personnel. The DHS/ICE-015 LeadTrac System of Records 
is a repository of information held by ICE for analytical and 
investigative purposes. The system is used to conduct research 
supporting the production of law enforcement activities; provide lead 
information for investigative inquiry and follow-up; assist in the 
conduct of ICE criminal and administrative investigations; assist in the 
disruption of terrorist or other criminal activity; and discover 
previously unknown connections among existing ICE investigations. The 
DHS/ICE-015 LeadTrac System of Records contains aggregated data from ICE 
and DHS law enforcement and homeland security IT systems, as well as 
data uploaded by ICE personnel for analysis from various public, 
private, and commercial sources during the course of an investigation or 
analytical project. 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)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f); 
and (g). Additionally, the Secretary of Homeland Security, pursuant to 5 
U.S.C. 552a(k)(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)(4)(G), (e)(4)(H), (e)(4)(I); and (f). When a record received from 
another system has been exempted in that source system under 5 U.S.C. 
552a(j)(2) or (k)(2), DHS will claim the

[[Page 114]]

same exemptions for those records that are claimed for the original 
primary systems 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. 
Disclosure of corrections or notations of dispute may impede 
investigations by requiring DHS to inform each witness or individual 
contacted during the investigation of each correction or notation 
pertaining to information provided them during the investigation.
    (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 classified and 
other 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 establishing 
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, 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. 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.
    (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 (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
    76. The DHS/CBP-023 Border Patrol Enforcement Records (BPER) System 
of Records consists of electronic and paper records and will be used by 
DHS and its components. The DHS/CBP-023 BPER System of Records is a 
repository of information held by DHS/CBP 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 there under; and national security and intelligence 
activities. The DHS/CBP-023 BPER System of Records contains information 
that is collected by, on behalf of, in support of, or in cooperation 
with

[[Page 115]]

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. 552a (c)(3), 
(c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5), 
(e)(8); and (g). Additionally, the Secretary of Homeland Security, 
pursuant to 5 U.S.C. 552a(k)(2), has exempted this system from the 
following provisions of the Privacy Act: 5 U.S.C. 552a (c)(3); (d); 
(e)(1), (e)(4)(G), and (e)(4)(H). 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 subsections (e)(4)(G) and (e)(4)(H) (Agency Requirements) 
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. 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.
    (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 (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

[71 FR 20523, Apr. 21, 2006]

    Editorial Note: For Federal Register citations affecting appendix C, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.



PART 7_CLASSIFIED NATIONAL SECURITY INFORMATION--Table of Contents



Sec.
7.1 Purpose.

[[Page 116]]

7.2 Scope.
7.3 Definitions.

                        Subpart A_Administration

7.10 Authority of the DHS Chief Security Officer.
7.11 Components' responsibilities.
7.12 Violations of classified information requirements.
7.13 Judicial proceedings.

                    Subpart B_Classified Information

7.20 Classification and declassification authority.
7.21 Classification of information, limitations.
7.22 Classification pending review.
7.23 Emergency release of classified information.
7.24 Duration of classification.
7.25 Identification and markings.
7.26 Derivative classification.
7.27 Declassification and downgrading.
7.28 Automatic declassification.
7.29 National Declassification Center.
7.30 Documents of permanent historical value.
7.31 Classification challenges.
7.32 Mandatory declassification review.

    Authority: 5 U.S.C. 301; Pub. L. 107-296; E.O. 13526; 3 CFR, 1995 
Comp., p. 333; E.O. 13142, 64 FR 66089, 3 CFR, 1999 Comp., p. 236; 32 
CFR part 2001.

    Source: 79 FR 44095, July 30, 2014, unless otherwise noted.



Sec.  7.1  Purpose.

    The purpose of this part is to ensure that information within the 
Department of Homeland Security (DHS) relating to the national security 
is classified, safeguarded, and declassified pursuant to the provisions 
of Executive Order 13526, and implementing directives from the 
Information Security Oversight Office (ISOO) of the National Archives 
and Records Administration (NARA).



Sec.  7.2  Scope.

    (a) This part applies to all employees, detailees, and non-
contractor personnel inside and outside the Executive Branch who are 
granted access to classified information by the DHS, in accordance with 
the standards in Executive Order 13526, and its implementing directives, 
and Executive Order 13549, ``Classified National Security Information 
Program for State, Local, Tribal, and Private Sector Entities,'' and its 
implementing directives.
    (b) This part does not apply to contractors, grantees and other 
categories of personnel falling under the purview of Executive Order 
12829, National Industrial Security Program, as amended, and its 
implementing directives.
    (c) This part is independent of and does not affect any 
classification procedures or requirements of the Atomic Energy Act of 
1954, as amended (42 U.S.C. 2011 et seq.).
    (d) This part does not, and is not intended to, create any right to 
judicial review, or any other right or benefit or trust responsibility, 
substantive or procedural, enforceable by a party against the United 
States, its agencies or instrumentalities, its officers or employees, or 
any other person. This part creates limited rights to administrative 
review of decisions. This part does not, and is not intended to, create 
any right to judicial review of administrative action.



Sec.  7.3  Definitions.

    The terms defined or used in Executive Order 13526, and the 
implementing directives in 32 CFR part 2001 and 2004 are applicable to 
this part.



                        Subpart A_Administration



Sec.  7.10  Authority of the DHS Chief Security Officer.

    (a) The DHS Chief Security Officer (hereafter ``Chief Security 
Officer'') is designated as the Senior Agency Official as required by 
section 5.4(d) of Executive Order 13526, and, except as specifically 
provided elsewhere in this part, is authorized to administer the DHS 
Classified National Security Information program pursuant to Executive 
Order 13526.
    (b) To the extent that 32 CFR part 2001 refers to the agency head or 
``designee,'' the Chief Security Officer is such designee unless 
determined otherwise by the Secretary. The Chief Security Officer may 
further delegate the associated authorities.
    (c) The Chief Security Officer shall, among other actions:
    (1) Oversee and administer the DHS's program established under 
Executive Order 13526;

[[Page 117]]

    (2) Promulgate implementing regulations;
    (3) Establish and maintain DHS-wide security education and training 
programs, to include implementation and management of mandatory training 
for DHS officials who have been delegated original classification 
authority and those who perform derivative classification actions and 
suspension of such authority for failure to attend such training;
    (4) Establish and maintain an ongoing self-inspection program that 
shall include regularly reviewing representative samples of DHS's 
original and derivative classification actions, correcting instances of 
misclassification, and reporting annually to the Director of ISOO on the 
DHS self-inspection program;
    (5) Establish procedures to prevent unnecessary access to classified 
information, including procedures that:
    (i) Require that a need for access to classified information is 
established before initiating administrative procedures to grant access; 
and
    (ii) Ensure that the number of persons granted access to classified 
information is limited to the minimum necessary for operational and 
security requirements and needs;
    (6) Develop special contingency plans for the safeguarding of 
classified information used in or near hostile or potentially hostile 
areas;
    (7) Coordinate with the DHS Chief Human Capital Officer, as 
appropriate, to ensure that the performance contract or other system 
used to rate personnel performance includes the management of classified 
information as a critical element or item to be evaluated in the rating 
of:
    (i) Original classification authorities;
    (ii) Security managers or security specialists; and
    (iii) All other personnel whose duties significantly involve the 
creation or handling of classified information, including persons who 
apply derivative classification markings;
    (8) Account for the costs associated with implementing this part and 
report the cost to the Director of ISOO;
    (9) Assign in a prompt manner personnel to respond to any request, 
appeal, challenge, complaint, or suggestion concerning Executive Order 
13526, that pertains to classified information that originated in a DHS 
component that no longer exists and for which there is no clear 
successor in function;
    (10) Establish a secure capability to receive information, 
allegations, or complaints regarding over-classification or incorrect 
classification and to provide a ready source for guidance on proper 
classification;
    (11) Report violations, take corrective measures and assess 
appropriate sanctions as warranted, in accordance with Executive Order 
13526;
    (12) Oversee DHS creation and participation in special access 
programs authorized under Executive Order 13526;
    (13) Direct and administer DHS's personnel security program in 
accordance with Executive Order 12968 and other applicable law;
    (14) Direct and administer DHS implementation and compliance with 
the National Industrial Security Program in accordance with Executive 
Order 12829 and other applicable guidance; and
    (15) Perform any other duties as the Secretary may designate.
    (d) The Chief Security Officer shall maintain a current list of all 
officials authorized pursuant to this part to originally classify or 
declassify documents.
    (e) The Chief Security Officer shall establish and maintain a means 
for appointing, tracking, and training DHS officials who do or will 
perform original and derivative classification actions.
    (f) The Chief Security Officer shall administer a program for the 
implementation, management, and oversight of access to and safeguarding 
of classified information provided to state, local, tribal, and private 
sector personnel pursuant to Executive Order 13549, ``Classified 
National Security Information Program for State, Local, Tribal, and 
Private Sector Entities,'' and its implementing directives.
    (g) Nothing in this part will be interpreted to abrogate or affect 
the responsibilities of the Director of National Intelligence under the 
National Security Act of 1947, Public Law 235 (1947), as amended, and 
E.O. 12333, United

[[Page 118]]

States Intelligence Activities (1981), as amended, or any 
responsibilities of the Under Secretary for Intelligence and Analysis 
conferred by presidential or intelligence community directive 
implicating those authorities, insofar as those authorities concern 
classified sources, methods, and activities, classified national 
intelligence, or sensitive compartmented information and are executed 
consistent with delegations or designations of authority issued pursuant 
to the statutory authority of the Secretary.



Sec.  7.11  Components' responsibilities.

    Each DHS component shall appoint a security officer or security 
liaison to implement this part. The security officer/security liaison 
shall:
    (a) Implement, observe, and enforce security regulations or 
procedures within their component with respect to the classification, 
declassification, safeguarding, handling, and storage of classified 
national security information;
    (b) Report violations of the provisions of this part to the Chief 
Security Officer committed by employees of their component, as required 
by implementing directives;
    (c) Ensure that employees of their component attend mandatory 
security education and training, as required by the DHS classified 
information security procedures, to include those component officials 
delegated the authority to classify information originally and those who 
perform derivative classification actions;
    (d) Continuously review the requirements for personnel access to 
classified information as a part of the continuous need-to-know 
evaluation, and initiate action to administratively withdraw or reduce 
the level of access authorized, as appropriate; and
    (e) Cooperate fully with any request from the Chief Security Officer 
for assistance in the implementation of this part.



Sec.  7.12  Violations of classified information requirements.

    (a) Any person who suspects or has knowledge of a violation of this 
part, including the known or suspected loss or compromise of classified 
information, shall promptly report such violations or possible 
violations, pursuant to requirements set forth in DHS directives.
    (b) DHS employees and detailees may be reprimanded, suspended 
without pay, terminated from classification authority, suspended from or 
denied access to classified information, or subject to other sanctions 
in accordance with applicable law and DHS regulations or directives if 
they:
    (1) Knowingly, willfully, or negligently disclose to unauthorized 
persons information properly classified under Executive Order 13526, or 
its predecessor orders;
    (2) Knowingly, willfully, or negligently classify or continue the 
classification of information in violation of Executive Order 13526, or 
its implementing directives; or
    (3) Knowingly, willfully, or negligently create or continue a 
special access program contrary to the requirements of Executive Order 
13526; or,
    (4) Knowingly, willfully, or negligently violate any other provision 
of Executive Order 13526, or DHS implementing directives, or;
    (5) Knowingly, willfully, or negligently grant eligibility for, or 
allow access to, classified information in violation of Executive Order 
13526, or its implementing directives, this part, or DHS implementing 
directives promulgated by the Chief Security Officer.



Sec.  7.13  Judicial proceedings.

    (a) Any DHS official or organization, except for the Office of 
Inspector General in matters involving the Office of Inspector General 
only, receiving an order or subpoena from a federal or state court, or 
an administrative subpoena from a federal agency, to produce classified 
information (see 6 CFR 5.41 through 5.49), required to submit classified 
information for official DHS litigation purposes, or receiving 
classified information from another organization for production of such 
in litigation, shall notify the Office of the General Counsel, unless 
the demand for production is made by the Office of the General Counsel, 
and immediately determine from the agency originating the classified 
information whether the

[[Page 119]]

information can be declassified. If declassification is not possible, 
DHS representatives will take appropriate action to protect such 
information, pursuant to the provisions of this section.
    (b) If a determination is made under paragraph (a) of this section 
to produce classified information in a judicial proceeding in any 
manner, the DHS General Counsel attorney, or the Office of Inspector 
General attorney, if the matter involves the Office of Inspector General 
only, in conjunction with the Department of Justice, shall take 
appropriate steps to protect classified information in judicial 
proceedings and retrieve the information when the information is no 
longer required in such judicial proceedings, in accordance with the 
Department of Justice procedures, and in Federal criminal cases, 
pursuant to the requirements of Classified Information Procedures Act 
(CIPA), Public Law 96-456, 94 Stat. 2025, (18 U.S.C. App.), and the 
``Security Procedures Established Pursuant to Public Law 96-456, 94 
Stat. 2025, by the Chief Justice of the United States for the Protection 
of Classified Information,'' and other applicable authorities.



                    Subpart B_Classified Information



Sec.  7.20  Classification and declassification authority.

    (a) Top Secret original classification authority may only be 
exercised by the Secretary and by officials with a demonstrable and 
continuing need to exercise such authority and to whom such authority is 
delegated in writing by the Secretary. The Chief Security Officer, as 
the Senior Agency Official, is delegated authority to originally 
classify information up to and including Top Secret. No official who is 
delegated Top Secret original classification authority by the Secretary 
may further delegate such authority.
    (b) The Chief Security Officer may delegate Secret and Confidential 
original classification authority to other officials with a demonstrable 
and continuing need to exercise such authority. No official who is 
delegated original classification authority by the Secretary or the 
Chief Security Officer may further delegate such authority.
    (c) Persons who are delegated original classification authority 
shall attend mandatory classification training within 60 days of the 
delegation, and annually thereafter. Persons who fail to attend 
mandatory training shall have such authority suspended until such time 
as the training occurs.
    (1) Except for suspensions of the Inspector General's classification 
authority, the Chief Security Officer may waive a suspension of 
authority for no longer than 60 days following the due date of the 
training when unavoidable circumstances exist that prevent the person 
from attending the training.
    (2) For cases involving suspension of the Inspector General's 
classification authority under paragraph (c) of this section, only the 
Secretary or Deputy Secretary may waive such a suspension.
    (d) Officials authorized to classify information at a specified 
level are also authorized to classify information at a lower level. In 
the absence of an official authorized to exercise classification 
authority, the person designated to act in lieu of such official may 
exercise the official's classification authority.
    (e) Declassification authority may be exercised by the official who 
authorized the original classification, if that official is still 
serving in the same position and has original classification authority; 
the originator's current successor in function, if that individual has 
original classification authority; a supervisory official of either the 
originator or his or her successor in function, if the supervisory 
official has original classification authority; or officials delegated 
declassification authority by the Secretary or the Chief Security 
Officer.



Sec.  7.21  Classification of information, limitations.

    (a) Information may be originally classified only if all of the 
following standards are met:
    (1) An original classification authority is classifying the 
information;
    (2) The information is owned by, produced by or for, or is under the 
control of the United States Government;

[[Page 120]]

    (3) The information falls within one or more of the categories of 
information specified in section 1.4 of Executive Order 13526; and
    (4) The original classification authority determines that the 
unauthorized disclosure of the information reasonably could be expected 
to cause identifiable and describable damage to the national security.
    (b) Information shall be classified as Top Secret, Secret, or 
Confidential in accordance with and in compliance with the standards and 
criteria in Executive Order 13526. No other terms shall be used to 
identify United States classified information except as otherwise 
provided by statute.
    (c) If there is significant doubt about the need to classify 
information it shall not be classified. If classification is warranted 
but there is significant doubt about the appropriate level of 
classification it shall be classified at the lower level.
    (d) Original classification decisions made by a DHS original 
classification authority shall be incorporated into a security 
classification guide in a timely manner but no later than one year from 
the date of the original decision. Such decisions shall be reported to 
the Office of the Chief Security Officer, Administrative Security 
Division, within thirty days following the original classification 
decision.
    (e) All DHS security classification guides shall be coordinated 
through and receive the concurrence of the Office of the Chief Security 
Officer, Administrative Security Division, prior to approval and 
publication by an original classification authority.
    (f) Information shall not be classified in order to:
    (1) Conceal inefficiency, violations of law, or administrative 
error;
    (2) Prevent embarrassment to a person, organization, or agency;
    (3) Restrain competition;
    (4) Prevent or delay release of information that does not require 
protection in the interest of national security.
    (g) Information may not be reclassified after it has been 
declassified and released to the public under proper authority unless:
    (1) The reclassification is approved in writing by the Secretary 
based on a document-by-document determination that the reclassification 
of the information is required to prevent significant and demonstrable 
damage to the national security;
    (2) The reclassification of the information meets the standards and 
criteria for classification pursuant to Executive Order 13526;
    (3) The information may be reasonably recovered without bringing 
undue attention to the information; and
    (4) The reclassification action is reported promptly to the 
Assistant to the President for National Security Affairs (National 
Security Advisor) and the Director of ISOO.
    (5) For documents in the physical and legal custody of the National 
Archives and Records Administration that have previously been made 
available for public use and determined to warrant reclassification per 
paragraphs (g)(1) through (4) of this section, the Secretary shall 
notify the Archivist of the United States, who shall suspend public 
access pending approval by the Director of ISOO. Any such decision made 
by the Director of ISOO may be appealed by the Secretary to the 
President through the National Security Advisor.
    (h) Information that has not previously been disclosed to the public 
under proper authority may be classified or reclassified after DHS has 
received a request for it under the Freedom of Information Act (5 U.S.C. 
552), the Presidential Records Act, 44 U.S.C. 2204(c)(1), the Privacy 
Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of 
Executive Order 13526, section 3.5. When it is necessary to classify or 
reclassify such information, it shall be done so on a document-by-
document basis with the personal participation of and under the 
direction of the Secretary or Deputy Secretary.



Sec.  7.22  Classification pending review.

    (a) Whenever persons who do not have original classification 
authority originate or develop information that they believe requires 
immediate classification and safeguarding, and no authorized original 
classifier is available, that person shall:

[[Page 121]]

    (1) Safeguard the information in a manner appropriate for the 
classification level they believe it to be;
    (2) Apply the appropriate overall classification markings; and
    (3) Within five working days, securely transmit the information to 
the organization that has appropriate subject matter interest and 
original classification authority.
    (b) When it is not clear which component would be the appropriate 
original classifier, the information shall be sent to the Office of the 
Chief Security Officer, Administrative Security Division, to determine 
the appropriate organization.
    (c) The applicable original classification authority shall decide 
within 30 days of receipt whether the information warrants 
classification pursuant to Executive Order 13526 and shall render such 
decision in writing.



Sec.  7.23  Emergency release of classified information.

    (a) The DHS Undersecretary for Management has delegated to certain 
DHS employees the authority to disclose classified information to an 
individual or individuals not otherwise eligible for access in emergency 
situations when there is an imminent threat to life or in defense of the 
homeland.
    (b) In exercising this authority, the delegees shall adhere to the 
following conditions:
    (1) Limit the amount of classified information disclosed to a 
minimum to achieve the intended purpose;
    (2) Limit the number of individuals who receive it to only those 
persons with a specific need-to-know;
    (3) Transmit the classified information through approved 
communication channels by the most secure and expeditious method 
possible, or by other means deemed necessary in exigent circumstances;
    (4) Provide instructions about what specific information is 
classified and how it should be safeguarded. Physical custody of 
classified information must remain with an authorized Federal Government 
entity, in all but the most extraordinary circumstances as determined by 
the delegated official;
    (5) Provide appropriate briefings to the recipients on their 
responsibilities not to disclose the information and obtain from the 
recipients a signed DHS Emergency Release of Classified Information Non-
disclosure Form. In emergency situations requiring immediate verbal 
release of information, the signed nondisclosure agreement memorializing 
the briefing may be received after the emergency abates;
    (6) Within 72 hours of the disclosure of classified information, or 
the earliest opportunity that the emergency permits, but no later than 7 
days after the release, the disclosing authority must notify the DHS 
Office of the Chief Security Officer, Administrative Security Division, 
and the originating agency of the information disclosed. A copy of the 
signed nondisclosure agreements should be forwarded with the 
notification, or as soon thereafter as practical.
    (7) Release of information pursuant to this authority does not 
constitute declassification of the information.
    (8) Authority to disclose classified information under the above 
conditions may not be further delegated.



Sec.  7.24  Duration of classification.

    (a) At the time of original classification, original classification 
authorities shall apply a date or event in which the information will be 
automatically declassified.
    (b) The original classification authority shall attempt to establish 
a specific date or event that is not more than 10 years from the date of 
origination in which the information will be automatically declassified. 
If the original classification authority cannot determine an earlier 
specific date or event it shall be marked for automatic declassification 
10 years from the date of origination.
    (c) If the original classification authority determines that the 
sensitivity of the information requires classification beyond 10 years, 
it may be marked for automatic declassification for up to 25 years from 
the date of the original classification decision.
    (d) Original classification authorities do not have the authority to 
classify or retain the classification of information beyond 25 years 
from the date of origination. The only exceptions to this rule are 
information that would clearly and demonstrably be expected to reveal

[[Page 122]]

the identity of a confidential human source or human intelligence 
source, or, key design concepts of weapons of mass destruction. In these 
instances, the information shall be marked for declassification based on 
implementing directives issued pursuant to Executive Order 13526. In all 
other instances, classification beyond 25 years shall only be authorized 
in accordance with Sec.  7.28 and Executive Order 13526.



Sec.  7.25  Identification and markings.

    (a) Classified information, in all forms, must be marked in a manner 
that is immediately apparent pursuant to the standards set forth in 
section 1.6 of Executive Order 13526; 32 CFR part 2001, subpart B; and 
internal DHS guidance approved and distributed by the Office of the 
Chief Security Officer.
    (b) Foreign government information shall retain its original 
classification markings or be assigned a U.S. classification that 
provides a degree of protection at least equivalent to that required by 
the entity that furnished the information.
    (c) Information assigned a level of classification under predecessor 
Executive Orders shall remain classified at that level of 
classification, except as otherwise provided herein, i.e., the 
information is reclassified or declassified.



Sec.  7.26  Derivative classification.

    (a) Derivative classification is defined as the incorporating, 
paraphrasing, restating, or generating in a new form information that is 
already classified, and marking the newly developed material consistent 
with the classification markings that apply to the source information. 
Information is also derivatively classified when classification is based 
on instructions provided in a security classification guide.
    (b) Persons need not possess original classification authority to 
derivatively classify information based on source documents or 
classification guides.
    (c) Persons who perform derivative classification actions shall be 
designated as authorized derivative classifiers as specified in 
directives published by the Office of the Chief Security Officer.
    (d) Persons who are designated as authorized derivative classifiers 
shall attend mandatory classification training before performing 
derivative classification actions, and once every two years thereafter. 
Persons who fail to attend mandatory training shall have such authority 
suspended until such time as the training occurs.
    (1) Except for suspensions of the Office of Inspector General's 
classification authority, the Chief Security Officer may waive the 
suspension of authority for no longer than 60 days following the due 
date of the training when unavoidable circumstances exist that prevent 
the person from attending the training.
    (2) For cases involving suspension of the Office of Inspector 
General's classification authority under paragraph (d) of this section, 
only the Secretary or Deputy Secretary may waive such a suspension.
    (e) Persons who apply derivative classification markings shall 
observe original classification decisions and carry forward to any newly 
created documents the pertinent classification markings.
    (f) Information classified derivatively from other classified 
information shall be classified and marked in accordance with the 
standards set forth in sections 2.1 and 2.2 of Executive Order 13526, 32 
CFR part 2001, and internal DHS guidance provided by the Office of the 
Chief Security Officer.



Sec.  7.27  Declassification and downgrading.

    (a) Classified information shall be declassified as soon as it no 
longer meets the standards for classification. Declassification and 
downgrading is governed by part 3 of Executive Order 13526, implementing 
ISOO directives at 32 CFR part 2001, subpart C, and applicable internal 
DHS direction provided by the Office of the Chief Security Officer.
    (b) Information shall be declassified or downgraded by the official 
who authorized the original classification if that official is still 
serving in the same position and has original classification authority, 
the originator's successor if that position has original classification 
authority, or a supervisory official of

[[Page 123]]

either if that position has original classification authority, or, by 
officials delegated such authority in writing by the Secretary or the 
Chief Security Officer, or, pursuant to section 3.1.(e) of Executive 
Order 13526, the Director of the Information Security Oversight Office.
    (c) It is presumed that information that continues to meet the 
classification requirements under Executive Order 13526 requires 
continued protection. In some exceptional cases during declassification 
reviews, the need to protect classified information may be outweighed by 
the public interest in disclosure of the information, and in these cases 
the information should be declassified. If it appears that the public 
interest in disclosure of the information may outweigh the need to 
protect the information, the declassification reviewing official shall 
refer the information with a recommendation for decision to the Chief 
Security Officer. The Chief Security Officer shall review the 
information and after consulting with the applicable original 
classification authority and other components and agencies with 
equities, make a recommendation to the Secretary on whether the public 
interest in disclosure outweighs the damage to national security that 
might reasonably be expected from disclosure. The Secretary shall decide 
whether to declassify the information. The decision of the Secretary 
shall be final. This provision does not amplify or modify the 
substantive criteria or procedures for classification or create any 
substantive or procedural rights subject to judicial review.
    (d) Each component shall develop schedules for declassification of 
records in the National Archives.



Sec.  7.28  Automatic declassification.

    (a) Subject to paragraph (b) of this section and paragraphs 3.3(b)-
(d) and (g)-(j) of Executive Order 13526, all classified information 
contained in records that are more than 25 years old that have been 
determined to have permanent historical value shall be declassified 
automatically on December 31st of the year that is 25 years from the 
date of origin.
    (b) At least one year before information is declassified 
automatically under this section, the Chief Security Officer shall 
notify the ISOO of any specific information that DHS proposes to exempt 
from automatic declassification. The notification shall include:
    (1) A description of the information;
    (2) An explanation of why the information is exempt from automatic 
declassification and must remain classified for a longer period of time; 
and
    (3) A specific date or event for declassification of the information 
whenever the information exempted does not identify a confidential human 
source or human intelligence source, or, key design concepts of weapons 
of mass destruction.
    (c) Proposed exemptions under this section shall be forwarded to the 
Chief Security Officer. When the Chief Security Officer determines the 
exemption request is consistent with this section, he or she will submit 
the exemption request to the Executive Secretary of the Interagency 
Security Classification Appeals Panel (ISCAP) for approval.
    (d) Declassification guides that narrowly and precisely define 
exempted information may be used to exempt information from automatic 
declassification. Declassification guides must include the exemption 
notification information detailed in paragraph (b) of this section, and 
be approved pursuant to paragraph (c) of this section. The creation of 
declassification guides to cite proposed or ISCAP-approved DHS 
exemptions shall be coordinated through and processed by the Office of 
the Chief Security Officer, Administrative Security Division.



Sec.  7.29  National Declassification Center.

    (a) The Chief Security Officer and applicable components will 
support the NARA, National Declassification Center (NDC), which was 
established to streamline declassification processes, facilitate 
quality-assurance measures, and implement standardized training 
regarding the declassification of records determined to have permanent 
historical value. The Chief Security Officer will assign DHS personnel 
on an as-needed basis to address declassification matters and priorities 
containing DHS equities.

[[Page 124]]

    (b) The Office of the Chief Security Officer shall provide the NDC 
with all DHS classification and declassification guides that include 
ISCAP-approved exemptions from automatic declassification.
    (c) The Chief Security Officer, or his designee, shall oversee DHS-
wide support to the NDC, including representing DHS in consultations 
with the NDC Director.



Sec.  7.30  Documents of permanent historical value.

    The original classification authority, to the greatest extent 
possible, shall declassify classified information contained in records 
determined to have permanent historical value under 44 U.S.C. 2107 
before they are accessioned into the National Archives.



Sec.  7.31  Classification challenges.

    (a) Authorized holders of information classified by DHS or any other 
agency who, in good faith, believe that specific information is 
improperly or unnecessarily classified are encouraged and expected to 
challenge the classification status of that information pursuant to 
section 1.8 of Executive Order 13526. Authorized holders may submit 
classification challenges in writing to the original classification 
authority with jurisdiction over the information in question. If an 
original classification authority cannot be determined, the challenge 
shall be submitted to the Office of the Chief Security Officer, 
Administrative Security Division. The challenge need not be more 
specific than a question as to why the information is or is not 
classified, or is classified at a certain level.
    (b) If anonymity of the challenger is requested, the challenger may 
submit the challenge to the Office of the Chief Security Officer, 
Administrative Security Division. The Administrative Security Division 
will act as an agent for the challenger and the identity of the 
challenger will be redacted.
    (c) The original classification authority shall no later than 60 
days from receipt of the challenge, provide a written response to the 
submitter. The original classification authority may classify or 
declassify the information subject to the challenge and, if applicable, 
state specific reasons why the original classification determination was 
proper. If the original classification authority is not able to respond 
within 60 days, he or she shall inform the individual who filed the 
challenge in writing of that fact, and the anticipated determination 
date.
    (d) The individual challenging the classification will be notified 
of the determination made by the original classification authority and 
that the individual may appeal this determination to the Chief Security 
Officer, or in cases involving appeals by Office of Inspector General 
employees, the Secretary or Deputy Secretary. Upon receipt of such 
appeals, the Chief Security Officer, or in cases involving appeals by 
Office of Inspector General employees, the Secretary or Deputy 
Secretary, shall convene a DHS Classification Appeals Panel (DHS/CAP). 
The DHS/CAP shall, at a minimum, consist of representatives from the 
Office of the Chief Security Officer, the Office of General Counsel, and 
a representative from the component having jurisdiction over the 
information. Additional members may be added as determined by the Chief 
Security Officer. The DHS/CAP shall be chaired by the Chief Security 
Officer.
    (e) If the requester files an appeal through the DHS/CAP, and the 
appeal is denied, the requester shall be notified of the right to appeal 
the denial to the Interagency Security Classification Appeals Panel 
(ISCAP) pursuant to section 5.3 of Executive Order 13526, and the rules 
issued by the ISCAP pursuant to section 5.3 of Executive Order 13526.
    (f) Any individual who challenges a classification and believes that 
any action has been taken against him or her in retaliation or 
retribution because of that challenge may report the facts to the Office 
of Inspector General via its Hotline or Web site, or other appropriate 
office.
    (g) Nothing in this section shall prohibit a person from informally 
challenging the classified status of information directly to the 
original classification authority.
    (h) Classification challenge provisions are not applicable to 
documents

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required to be submitted for prepublication review or other 
administrative process pursuant to an approved non-disclosure agreement.
    (i) Requests for review of classified material for declassification 
by persons other than authorized holders are governed by Sec.  7.32.



Sec.  7.32  Mandatory declassification review.

    (a) Any individual, as ``individual'' is defined by 5 U.S.C. 
552a(a)(2) (with the exception of a foreign government entity or any 
representative thereof), may request that classified information be 
reviewed for declassification pursuant to the mandatory declassification 
review provisions of section 3.5 of Executive Order 13526. Such requests 
must be sent to the Departmental Disclosure Officer, Privacy Office, 245 
Murray Lane SW., Building 410, Washington, DC 20528.
    (b) The request must describe the document or material with enough 
specificity to allow it to be located by the component with a reasonable 
amount of effort. Components will generally consider deficient any 
requests for declassification review of, for instance, broad categories 
of information, entire file series of records, or similar non-specific 
requests.
    (1) When the description of the information in the request is 
deficient, the component shall solicit as much additional identifying 
information as possible from the requester.
    (2) If the information or material requested cannot be obtained with 
a reasonable amount of effort, the component shall provide the 
requester, through the DHS Disclosure Officer, with written notification 
of the reasons why no action will be taken and of the requester's right 
to appeal.
    (c) Requests for review of information that has been subjected to a 
declassification review request within the preceding two years shall not 
be processed. The DHS Disclosure Officer will notify the requester of 
such denial.
    (d) Mandatory Declassification Review provisions are not applicable 
to documents required to be submitted for prepublication review or other 
administrative process pursuant to an approved non-disclosure agreement.
    (e) Requests for information exempted from search or review under 
sections 701, 702, or 703 of the National Security Act of 1947, as added 
and amended (50 U.S.C. 431-433), or other provisions of law, shall not 
be processed. The DHS Disclosure Officer will notify the requester of 
such denial.
    (f) If documents or material being reviewed for declassification 
under this section contain information that has been originally 
classified by another government agency, the reviewing authority shall 
notify the DHS Disclosure Officer. Unless the association of that 
organization with the requested information is itself classified, the 
DHS Disclosure Officer will then notify the requester of the referral.
    (g) A DHS component may refuse to confirm or deny the existence, or 
non-existence, of requested information when its existence or non-
existence, is properly classified.
    (h) DHS components shall make a final determination on the request 
as soon as practicable but within one year from receipt. When 
information cannot be declassified in its entirety, components shall 
make reasonable efforts to redact those portions that still meet the 
standards for classification and release those declassified portions of 
the requested information that constitute a coherent segment.
    (i) DHS components shall notify the DHS Disclosure Officer of the 
determination made in the processing of a mandatory review request. Such 
notification shall include the number of pages declassified in full; the 
number of pages declassified in part; and the number of pages where 
declassification was denied.
    (j) The DHS Disclosure Officer shall maintain a record of all 
mandatory review actions for reporting in accordance with applicable 
Federal requirements.
    (k) The mandatory declassification review system shall provide for 
administrative appeal in cases where the review results in the 
information remaining classified. The requester shall be notified of the 
results of the review and of the right to appeal the denial of 
declassification. To address such appeals, the DHS Disclosure Office 
shall convene a DHS Classification Appeals

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Panel (DHS/CAP). The DHS/CAP shall, at a minimum, consist of 
representatives from the Disclosure Office, the Office of the Chief 
Security Officer, the Office of General Counsel, and a representative 
from the component having jurisdiction over the information. Additional 
members may be added as determined by the DHS Disclosure Officer. The 
DHS/CAP shall be chaired by the DHS Disclosure Officer.
    (l) If the requester files an appeal through the DHS/CAP, and the 
appeal is denied, the requester shall be notified of the right to appeal 
the denial to the ISCAP pursuant to section 5.3 of Executive Order 
13526, and the rules issued by the ISCAP pursuant to section 5.3 of 
Executive Order 13526.



PART 9_RESTRICTIONS UPON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
9.1 Conditions on use of funds.
9.2 Definitions.
9.3 Certification and disclosure.

                  Subpart B_Activities by Own Employees

9.11 Agency and legislative liaison.
9.15 Professional and technical services.
9.20 Reporting.

            Subpart C_Activities by Other than Own Employees

9.23 Professional and technical services.

                   Subpart D_Penalties and Enforcement

9.31 Penalties.
9.32 Penalty procedures.
9.33 Enforcement.

                          Subpart E_Exemptions

9.41 Secretary of Defense.

                        Subpart F_Agency Reports

9.51 Semi-annual compilation.
9.52 Inspector General report.

Appendix A to Part 9--Certification Regarding Lobbying
Appendix B to Part 9--Disclosure Form To Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121, 103 Stat. 750 (31 U.S.C. 
1352); Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5 U.S.C. 
301.

    Source: 68 FR 10912, Mar. 6, 2003, unless otherwise noted.



                            Subpart A_General



Sec.  9.1  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative agreement to pay any 
person for influencing or attempting to influence an officer or employee 
of any agency, a Member of Congress, an officer or employee of Congress, 
or an employee of a Member of Congress in connection with any of the 
following covered Federal actions: the awarding of any Federal contract, 
the making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A to this part, that the 
person has not made, and will not make, any payment prohibited by 
paragraph (a) of this section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B to this part, if such 
person has made or has agreed to make any payment using non appropriated 
funds (to include profits from any covered Federal action), which would 
be prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A to this part, 
whether that person has made or has agreed to make any payment to 
influence or attempt to influence an officer or employee of any agency, 
a Member of Congress, an officer or employee of Congress, or an employee 
of a Member of Congress in connection with that loan insurance or 
guarantee.
    (e) Each person who requests or receives from an agency a commitment

[[Page 127]]

providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B to this 
part, if that person has made or has agreed to make any payment to 
influence or attempt to influence an officer or employee of any agency, 
a Member of Congress, an officer or employee of Congress, or an employee 
of a Member of Congress in connection with that loan insurance or 
guarantee.



Sec.  9.2  Definitions.

    For purposes of this part:
    (a) Agency has the same meaning as provided in 5 U.S.C. 552(f), and 
includes Federal executive departments and agencies as well as 
independent regulatory commissions and Government corporations, as 
defined in 31 U.S.C. 9101(1).
    (b) The term covered Federal action:
    (1) Means any of the following Federal actions:
    (i) The awarding of any Federal contract;
    (ii) The making of any Federal grant;
    (iii) The making of any Federal loan;
    (iv) The entering into of any cooperative agreement; and
    (v) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.
    (2) Does not include receiving from an agency a commitment providing 
for the United States to insure or guarantee a loan. Loan guarantees and 
loan insurance are addressed independently within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR) (48 CFR Chapter 1) and any other acquisition contract for real or 
personal property or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance that provides services instead of money, or 
other assistance in the form of revenue sharing, loans, loan guarantees, 
loan insurance, interest subsidies, insurance, or direct United States 
cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definition 
of Indian tribe in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee or loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual appointed to a position in the Government pursuant 
to title 5 of the United States Code, including any position by 
temporary appointment or any appointment as an acting official as 
outlined in section 1511(c) of the Homeland Security Act;
    (2) A member of the uniformed services as defined in 37 U.S.C. 
101(3);
    (3) A special Government employee as defined in section 18 U.S.C. 
202; and
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act at 5 U.S.C. App. 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society,

[[Page 128]]

State, and local government, regardless of whether such entity is 
operated for profit or not for profit. This term excludes an Indian 
tribe, tribal organization, or any other Indian organization with 
respect to expenditures specifically permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to professional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and sub grantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec.  9.3  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b)(1) Each person shall file a certification, and a disclosure 
form, if required, upon receipt by such person of:
    (i) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (ii) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000.
    (2) A filing described in paragraph (b)(1) of this section shall not 
be required if such person previously filed a certification, and a 
disclosure form required under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraph (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action;
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.

[[Page 129]]

    (d)(1) The requirements of paragraph (d)(2) of this section apply to 
any person who requests or receives from a person referred to in 
paragraph (a) or (b) of this section:
    (i) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (ii) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (iii) A contract or subcontract exceeding $100,000 at any tier under 
a Federal loan exceeding $150,000; or
    (iv) A contract or subcontract exceeding $100,000 at any tier under 
a Federal cooperative agreement.
    (2) A person described in paragraph (d)(1) of this section shall 
file a certification, and a disclosure form, if required, to the next 
tier.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraph 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 31 U.S.C. 
1352.
    (g) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C of this part.



                  Subpart B_Activities by Own Employees



Sec.  9.11  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec.  
9.1(a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec.  9.15  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
9.1(a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal,

[[Page 130]]

amendment, or modification of a Federal contract, grant, loan, or 
cooperative agreement if payment is for professional or technical 
services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) For purposes of paragraph (a) of this section, professional and 
technical services shall be limited to advice and analysis directly 
applying any professional or technical discipline. For example, drafting 
of a legal document accompanying a bid or proposal by a lawyer is 
allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec.  9.20  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C_Activities by Other than Own Employees



Sec.  9.23  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec.  
9.1(a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec.  9.3(a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, professional and 
technical services shall be limited to advice and analysis directly 
applying any professional or technical discipline. For example, drafting 
of a legal document accompanying a bid or proposal by a lawyer is 
allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a

[[Page 131]]

professional (such as a licensed lawyer) or a technical person (such as 
a licensed accountant) are not allowable under this section unless they 
provide advice and analysis directly applying their professional or 
technical expertise and unless the advice or analysis is rendered 
directly and solely in the preparation, submission or negotiation of a 
covered Federal action. Thus, for example, communications with the 
intent to influence made by a lawyer that do not provide legal advice or 
analysis directly and solely related to the legal aspects of his or her 
client's proposal, but generally advocate one proposal over another are 
not allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal action include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec.  9.31  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B to this part) to be filed or amended if required herein, 
shall be subject to a civil penalty of not less than $10,000 and not 
more than $100,000 for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec.  9.32  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803 
(except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar 
as these provisions are not inconsistent with the requirements in this 
part.



Sec.  9.33  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.

[[Page 132]]



                          Subpart E_Exemptions



Sec.  9.41  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F_Agency Reports



Sec.  9.51  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B to this part) and, on May 31 and November 30 of 
each year, submit to the Secretary of the Senate and the Clerk of the 
House of Representatives a report containing a compilation of the 
information contained in the disclosure reports received during the six-
month period ending on March 31 or September 30, respectively, of that 
year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec.  9.52  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year an evaluation of the compliance of that agency 
with, and the effectiveness of, the requirements in this part. The 
evaluation may include any recommended changes that may be necessary to 
strengthen or improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.



       Sec. Appendix A to Part 9--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

 I. The undersigned certifies, to the best of his or her knowledge and 
                              belief, that:

    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or

[[Page 133]]

an employee of a Member of Congress in connection with the awarding of 
any Federal contract, the making of any Federal grant, the making of any 
Federal loan, the entering into of any cooperative agreement, and the 
extension, continuation, renewal, amendment, or modification of any 
Federal contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form--LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all sub awards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 31 U.S.C. 1352. Any 
person who fails to file the required certification shall be subject to 
a civil penalty of not less than $10,000 and not more than $100,000 for 
each such failure.

          II. Statement for Loan Guarantees and Loan Insurance:

The undersigned states, to the best of his or her knowledge and belief, 
that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering 
into this transaction imposed by 31 U.S.C. 1352. Any person who fails to 
file the required statement shall be subject to a civil penalty of not 
less than $10,000 and not more than $100,000 for each such failure.

[[Page 134]]

        Appendix B to Part 9--Disclosure Form To Report Lobbying
        
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



PART 11_CLAIMS--Table of Contents



                        Subpart A_Debt Collection

Sec.
11.1 General application.
11.2 Definitions.
11.3 Demand for payment.
11.4 Collection by administrative offset.
11.5 Administrative wage garnishment.
11.6 Reporting debts.
11.7 Private collection agencies.
11.8 Suspension or revocation of eligibility for loans and loan 
          guarantees, licenses, permits, or privileges.
11.9 Collection in installments.
11.10 Interest, penalty charges, and administrative costs.
11.11 Compromise.
11.12 Suspending or terminating collection activity.
11.13 Referrals to the Department of Justice.
11.14 Receipt of offset requests by other Federal agencies.
11.15 Applying the debt against DHS payments.

Subpart B [Reserved]

    Authority: 5 U.S.C. 301, 5514; 26 U.S.C. 6402, 31 U.S.C. 3701, 3711, 
3716, 3717, 3718, 3720A,

[[Page 137]]

3720B, 3720D; Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.).

    Source: 72 FR 4190, Jan. 30, 2007, unless otherwise noted.



                        Subpart A_Debt Collection



Sec.  11.1  General application.

    (a) Application of Debt Collection Standards. The provisions of 31 
CFR parts 285, 900-904, as amended by the Secretary of the Treasury and 
the Attorney General, are applicable to debts and debt procedures within 
the jurisdiction of the Department of Homeland Security.
    (b) Authority. The Chief Financial Officer of the Department of 
Homeland Security is delegated authority to administer this subpart and 
to redelegate authority under this subpart.
    (c) Application to DHS. This subpart provides procedures for the 
collection of DHS debts, and for collection of other debts owed to the 
United States when a request for offset of a DHS payment is received by 
the DHS from another federal agency. This subpart applies to all of DHS, 
including all of its components. It applies to the DHS when collecting a 
DHS debt, to persons who owe DHS debts, and to Federal agencies 
requesting offset of a payment issued by the DHS as a payment agency 
(including salary payments to DHS employees).
    (d) Exclusions. This subpart does not apply to debt arising from 
taxation under the Internal Revenue Act of 1986, as amended, or to any 
debt excepted from the FCCS, 31 CFR parts 900 through 904.
    (e) Non-exclusive procedure or remedy. Nothing in this subpart 
precludes collection or disposition of any debt under statutes and 
regulations other than those described in this subpart. To the extent 
that the provisions of laws or other regulations apply, including the 
remission or mitigation of fines, penalties, forfeitures and debts 
arising under the tariff laws of the United States, DHS components are 
authorized to collect debts under those laws and regulations. DHS 
components and other Federal agencies may simultaneously use multiple 
collection remedies to collect a debt, except as prohibited by law.
    (f) Additional policies and procedures. DHS components may, but are 
not required to, promulgate additional policies and procedures 
consistent with this subpart and other applicable Federal law, policies, 
and procedures.
    (g) Duplication not required. Nothing in this subpart requires DHS 
to duplicate notices or administrative proceedings required by contract, 
this subpart, or other laws or regulations.
    (h) No private rights created. This subpart does not create any 
right or benefit, substantive or procedural, enforceable at law or in 
equity by a party against the United States, its agencies, its officers, 
or any other person, nor shall the failure of any DHS component to 
comply with any of the provisions of this subpart or 31 CFR parts 285, 
900-904 be a defense to the collection of any debt or enforcement of any 
other law.



Sec.  11.2  Definitions.

    In addition to the definitions provided in 31 CFR parts 285, 900-
904, as used in this subpart:
    (a) Department of Homeland Security or DHS means the United States 
Department of Homeland Security and includes the Secretary and any DHS 
entity which reports directly or indirectly to the Secretary.
    (b) DHS debt means a debt owed to DHS by a person.
    (c) Secretary means the Secretary of Homeland Security.



Sec.  11.3  Demand for payment.

    (a) Notice requirements. Generally, before DHS starts the collection 
actions described in this subpart, DHS sends a written notice to the 
debtor under 31 CFR 901.2. The notice provided under this section 
includes notice of any and all actions DHS may take to offset the debt, 
including any notices required under 31 CFR parts 285, 900-904.
    (b) Exceptions to notice requirements. DHS may omit from any notice 
to a debtor any provision that is not legally required given the 
collection remedies to be applied to a particular debt.



Sec.  11.4  Collection by administrative offset.

    (a) General Provisions for Offset. DHS will collect debts by 
administrative offset pursuant to 31 CFR parts 900-904.

[[Page 138]]

    (b) Centralized Offset through the Treasury Offset Program. DHS 
adopts the provisions of 31 CFR 901.3.
    (c) Non-centralized Offset for DHS Debts. When centralized offset is 
not available or appropriate, DHS may collect delinquent DHS debts 
through non-centralized offset. In these cases, DHS may offset a payment 
internally or make a request directly to a Federal payment agency to 
offset a payment owed to the debtor. Before requesting a payment 
authorizing agency to conduct a non-centralized administrative offset, 
DHS will provide the debtor with the due process set forth in 31 CFR 
901.3(b)(4) and the notice requirements of 31 CFR 901.2 (unless the due 
process and notice requirements are not required under that part). DHS 
will provide the payment authorizing agency written certification that 
the debtor owes the past due, legally enforceable delinquent debt in the 
amount stated, and that DHS has fully complied with its regulations 
concerning administrative offset.
    (d) Hearing Procedures for Federal Employees--(1) Request for a 
hearing. A Federal employee who has received a notice that his or her 
DHS debt will be collected by means of salary offset may request a 
hearing concerning the existence or amount of the debt. The Federal 
employee also may request a hearing concerning the amount proposed to be 
deducted from the employee's pay each pay period. The employee must send 
any request for hearing, in writing, to the office designated in the 
notice described in section 11.4(c). The request must be received by the 
designated office on or before the 15th calendar day following the 
employee's receipt of the notice. The employee must sign the request and 
specify whether an oral or paper hearing is requested. If an oral 
hearing is requested, the employee must explain why the matter cannot be 
resolved by review of the documentary evidence alone. All travel 
expenses incurred by the Federal employee in connection with an in-
person hearing will be borne by the employee.
    (2) Failure to submit timely request for hearing. If the employee 
fails to submit a request for hearing within the time period described 
in paragraph (d)(1) of this section, the employee will have waived the 
right to a hearing, and salary offset may be initiated. However, DHS 
should accept a late request for hearing if the employee can show that 
the late request was the result of circumstances beyond the employee's 
control or because of a failure to receive actual notice of the filing 
deadline.
    (3) Hearing official. DHS must obtain the services of a hearing 
official who is not under the supervision or control of the Secretary. 
The DHS Chief Financial Officer will coordinate DHS efforts to obtain 
the services of a hearing official.
    (4) Notice of hearing. After the employee requests a hearing, the 
designated hearing official informs the employee of the form of the 
hearing to be provided. For oral hearings, the notice sets forth the 
date, time and location of the hearing. For paper hearings, the notice 
provides the employee the date by which he or she should submit written 
arguments to the designated hearing official. The hearing official gives 
the employee reasonable time to submit documentation in support of the 
employee's position. The hearing official schedules a new hearing date 
if requested by both parties. The hearing official gives both parties 
reasonable notice of the time and place of a rescheduled hearing.
    (5) Oral hearing. The hearing official conducts an oral hearing if 
he or she determines the matter cannot be resolved by review of 
documentary evidence alone (for example, when an issue of credibility or 
veracity is involved). The hearing need not take the form of an 
evidentiary hearing, but may be conducted in a manner determined by the 
hearing official, including but not limited to:
    (i) Informal conferences with the hearing official, in which the 
employee and agency representative will be given full opportunity to 
present evidence, witnesses and argument;
    (ii) Informal meetings with an interview of the employee by the 
hearing official; or
    (iii) Formal written submissions, with an opportunity for oral 
presentation.
    (6) Paper hearing. If the hearing official determines an oral 
hearing is not

[[Page 139]]

necessary, he or she makes the determination based upon a review of the 
available written record, including any documentation submitted by the 
employee in support of his or her position.
    (7) Failure to appear or submit documentary evidence. In the absence 
of good cause shown (for example, excused illness), if the employee 
fails to appear at an oral hearing or fails to submit documentary 
evidence as required for a paper hearing, the employee waives the right 
to a hearing, and salary offset may be initiated. Further, the employee 
is deemed to admit the existence and amount of the debt as described in 
the notice of intent to offset. If a DHS representative does not appear 
at an oral hearing, the hearing official shall proceed with the hearing 
as scheduled, and make his or her determination based upon the oral 
testimony presented and the documentary evidence submitted by both 
parties.
    (8) Burden of proof. DHS has the initial burden to prove the 
existence and amount of the debt. Thereafter, if the employee disputes 
the existence or amount of the debt, the employee must prove by a 
preponderance of the evidence that no debt exists or that the amount of 
the debt is incorrect. In addition, the employee may present evidence 
that the proposed terms of the repayment schedule are unlawful, would 
cause a financial hardship to the employee, or that collection of the 
debt may not be pursued due to operation of law.
    (9) Record. The hearing official maintains a summary record of any 
hearing provided by this subpart. Witnesses testify under oath or 
affirmation in oral hearings.
    (10) Date of decision. The hearing official issues a written opinion 
stating his or her decision, based upon documentary evidence and 
information developed at the hearing, as soon as practicable after the 
hearing but not later than 60 days after the date on which the request 
for hearing was received by DHS. If the employee requests a delay in the 
proceedings, the deadline for the decision may be postponed by the 
number of days by which the hearing was postponed. When a decision is 
not timely rendered, DHS waives penalties applied to the debt for the 
period beginning with the date the decision is due and ending on the 
date the decision is issued.
    (11) Content of decision. The written decision includes:
    (i) A statement of the facts presented to support the origin, 
nature, and amount of the debt;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, if applicable.
    (12) Final agency action. The hearing official's decision is final.
    (f) Waiver not precluded. Nothing in this subpart precludes an 
employee from requesting waiver of an overpayment under 5 U.S.C. 5584 or 
8346(b), 10 U.S.C. 2774, 32 U.S.C. 716, or other statutory authority.
    (g) Salary offset process--(1) Determination of disposable pay. The 
Chief Financial Officer consults with the appropriate DHS payroll office 
to determine the amount of a DHS employee's disposable pay and will 
implement salary offset when requested to do so by a DHS component or 
another federal agency. If the debtor is not employed by DHS, the agency 
employing the debtor will determine the amount of the employee's 
disposable pay and implement salary offset upon request.
    (2) Amount of salary offset. The amount to be offset from each 
salary payment will be up to 15 percent of a debtor's disposable pay, as 
follows:
    (i) If the amount of the debt is equal to or less than 15 percent of 
the disposable pay, such debt generally is collected in one lump sum 
payment; or
    (ii) Installment deductions are made over a period of no greater 
than the anticipated period of employment. An installment deduction will 
not exceed 15 percent of the disposable pay from which the deduction is 
made unless the employee has agreed in writing to the deduction of a 
greater amount or the creditor agency has determined that smaller 
deductions are appropriate based on the employee's ability to pay.
    (3) Final salary payment. After the employee has separated either 
voluntarily or involuntarily from the payment agency, the payment agency 
may make a lump sum deduction exceeding 15 percent of disposable pay 
from any

[[Page 140]]

final salary or other payments pursuant to 31 U.S.C. 3716 in order to 
satisfy a debt.
    (h) Payment agency's responsibilities. (1) As required by 5 CFR 
550.1109, if the employee separates from the payment agency from which 
DHS requested salary offset, the payment agency must certify the total 
amount of its collection and notify DHS and the employee of the amounts 
collected. If the payment agency is aware that the employee is entitled 
to payments from the Civil Service Retirement Fund and Disability Fund, 
the Federal Employee Retirement System, or other similar payments, it 
must provide written notification to the agency responsible for making 
such retirement payments that the debtor owes a debt, the amount of the 
debt, and that DHS has complied with the provisions of this section. DHS 
must submit a properly certified claim to the new payment agency before 
the collection can be made.
    (2) If the employee is already separated from employment and all 
payments due from his or her former payment agency have been made, DHS 
may request that money due and payable to the employee from the Civil 
Service Retirement Fund and Disability Fund, the Federal Employee 
Retirement System, or other similar funds, is administratively offset to 
collect the debt. Generally, DHS will collect such monies through the 
Treasury Offset Program as described in this section.
    (3) When an employee transfers to another agency, DHS should resume 
collection with the employee's new payment agency in order to continue 
salary offset.



Sec.  11.5  Administrative wage garnishment.

    DHS may collect debts from a debtor's wages by means of 
administrative wage garnishment in accordance with the requirements of 
31 U.S.C. 3720D under the procedures established in 31 CFR 285.11.



Sec.  11.6  Reporting debts.

    DHS will report delinquent debts to credit bureaus and other 
automated databases in accordance with 31 U.S.C. 3711(e), 31 CFR 901.4, 
and the Office of Management and Budget Circular A-129, ``Policies for 
Federal Credit Programs and Non-tax Receivables,'' which may be found at 
http://www.fms.treas.gov/debt. At least sixty (60) days prior to 
reporting a delinquent debt to a consumer reporting agency, DHS sends a 
notice to the debtor in accordance with 6 CFR 11.3. DHS may authorize 
the Treasury Department's Financial Management Service to report to 
credit bureaus those delinquent debts that have been transferred to the 
Financial Management Service for administrative offset.



Sec.  11.7  Private collection agencies.

    DHS will transfer delinquent DHS debts to the Treasury Department's 
Financial Management Service to obtain debt collection services provided 
by private collection agencies.



Sec.  11.8  Suspension or revocation of eligibility for loans and loan guarantees, licenses, permits, or privileges.

    The authority to extend financial assistance in the form of a loan, 
loan guarantee, or loan insurance to any person delinquent on a nontax 
debt owed to DHS is delegated to the Chief Financial Officer.



Sec.  11.9  Collection in installments.

    DHS may accept payment of a DHS debt in regular installments, in 
accordance with the provisions of 31 CFR 901.8 and policies and 
procedures adopted by the Chief Financial Officer (CFO). The CFO will 
consult the Office of General Counsel regarding a legally enforceable 
written agreement from the debtor.



Sec.  11.10  Interest, penalty charges, and administrative costs.

    (a) Assessment and notice. DHS shall assess interest, penalties and 
administrative costs on DHS debts in accordance with 31 U.S.C. 3717 and 
31 CFR 901.9. Administrative costs of processing and handling a 
delinquent debt shall be determined by DHS.
    (b) Waiver of interest, penalties, and administrative costs. DHS may 
waive interest, penalties, and administrative costs, or any portion 
thereof, under the criteria in the FCCS, or when it determines the 
collection of these charges

[[Page 141]]

would be against equity and good conscience or not in the best interests 
of the United States. The authority to waive interest, penalties and 
administrative costs is delegated to the Chief Financial Officer. The 
DHS Chief Financial Officer shall issue written guidance on maintaining 
records of waivers.
    (c) Accrual during suspension of debt collection. Interest and 
related charges will not accrue during the period a hearing official 
does not render a timely decision.



Sec.  11.11  Compromise.

    DHS may compromise a debt in accordance with the provisions of 31 
CFR part 902. The Chief Financial Officer is authorized to compromise 
debts owed to DHS. No debt over $10,000 may be compromised without the 
concurrence of the Office of the General Counsel.



Sec.  11.12  Suspending or terminating collection activity.

    DHS will suspend or terminate collection activity, or discharge 
indebtedness, in accordance with 31 CFR part 903. The Chief Financial 
Officer is delegated authority to suspend or terminate collection 
activity, or to discharge indebtedness regarding debts owed to DHS, but 
for any such action involving a debt over $10,000, the Chief Financial 
Officer must obtain the concurrence of the Office of the General 
Counsel. The Chief Financial Officer is authorized to act on behalf of 
the Secretary in selling a debt, and in determining whether or not it is 
in the best interests of the United States to do so.



Sec.  11.13  Referrals to the Department of Justice.

    Referrals of debts to the Department of Justice for collection will 
be by the General Counsel.



Sec.  11.14  Receipt of offset requests by other Federal agencies.

    Other Federal agencies send non-centralized offset requests to DHS 
at: U.S. Department of Homeland Security, Attn: Chief Financial Officer, 
Mail Stop 0200, Washington, DC 20528-0200. Those agencies must comply 
with 31 CFR 901.3 when forwarding the requests to DHS. DHS does not 
review the merits of the creditor agency's determination with regard to 
the existence or the amount of the debt. When two or more agencies are 
seeking offsets from payments made to the same person, or when two or 
more debts are owed to a single creditor agency, DHS may determine the 
order in which the debts will be collected or whether one or more debts 
should be collected by offset simultaneously. For the purposes of this 
section, debts owed to DHS generally take precedence over debts owed to 
other agencies, but DHS may pay a debt to another agency prior to 
collecting for DHS. DHS determines the order of debt collection based 
upon the best interests of the United States.



Sec.  11.15  Applying the debt against DHS payments.

    (a) Notice to the Debtor. DHS sends a written notice to the debtor 
indicating a certified debt claim was received from the creditor agency, 
the amount of the debt claimed to be owed by the creditor agency, the 
estimated date the offset will begin (if more than one payment), and the 
amount of the deduction(s). For employees, DHS generally begins 
deductions from pay at the next officially established pay interval. 
Deductions continue until DHS knows the debt is paid in full or until 
otherwise instructed by the creditor agency. Alternatively, the amount 
offset may be an amount agreed upon, in writing, by the debtor and the 
creditor agency. If a DHS employee retires or resigns, or if his or her 
employment ends before collection of the debt is complete, DHS continues 
to offset, under 31 U.S.C. 3716, up to 100% of an employee's subsequent 
payments until the debt is paid or otherwise resolved. Such payments 
include a debtor's final salary payment, lump-sum leave payment, and 
other payments payable to the debtor by DHS. See 31 U.S.C. 3716 and 5 
CFR 550.1104(l) and 550.1104(m). If the employee is separated from DHS 
before the debt is paid in full, DHS will certify to the creditor agency 
the total amount of its collection. If DHS is aware the employee is 
entitled to payments from the Civil Service Retirement and Disability 
Fund, Federal Employee Retirement System, or other

[[Page 142]]

similar payments, DHS provides written notice to the agency making such 
retirement payments that the debtor owes a debt (including the amount) 
and that the provisions of 5 CFR 550.1109 have been fully complied with. 
The creditor agency is responsible for submitting a certified claim to 
the agency responsible for making such payments before collection may 
begin. Generally, creditor agencies will collect such monies through the 
Treasury Offset Program as described in section 11.4.
    (b) Notice to the debtor. DHS provides to the debtor a copy of any 
notices sent to the creditor agency under this subpart.
    (c) Transfer of employee debtor to another Federal agency. If an 
employee debtor transfers to another Federal agency before the debt is 
paid in full, DHS notifies the creditor agency and provides it a 
certification of the total amount of its collection on the debt. The 
creditor agency is responsible for submitting a certified claim to the 
debtor's new employing agency before collection may begin.

Subpart B [Reserved]



PART 13_PROGRAM FRAUD CIVIL REMEDIES--Table of Contents



Sec.
13.1 Basis, purpose, scope and effect.
13.2 Definitions.
13.3 Basis for civil penalties and assessments.
13.4 Investigation.
13.5 Review by the Reviewing Official.
13.6 Prerequisites for issuing a Complaint.
13.7 Complaint.
13.8 Service of Complaint.
13.9 Answer.
13.10 Default upon failure to answer.
13.11 Referral of Complaint and answer to the ALJ.
13.12 Notice of hearing.
13.13 Parties to the hearing.
13.14 Separation of functions.
13.15 Ex parte contacts.
13.16 Disqualification of Reviewing Official or ALJ.
13.17 Rights of parties.
13.18 Authority of the ALJ.
13.19 Prehearing conferences.
13.20 Disclosure of Documents.
13.21 Discovery.
13.22 Exchange of witness lists, Statements, and exhibits.
13.23 Subpoenas for attendance at hearing.
13.24 Protective order.
13.25 Fees.
13.26 Filing, form and service of papers.
13.27 Computation of time.
13.28 Motions.
13.29 Sanctions.
13.30 The hearing and burden of proof.
13.31 Determining the amount of penalties and assessments.
13.32 Location of hearing.
13.33 Witnesses.
13.34 Evidence.
13.35 The record.
13.36 Post-hearing briefs.
13.37 Initial Decision.
13.38 Reconsideration of Initial Decision.
13.39 Appeal to Authority Head.
13.40 Stays ordered by the Department of Justice.
13.41 Stay pending appeal.
13.42 Judicial review.
13.43 Collection of civil penalties and assessments.
13.44 Right to administrative offset.
13.45 Deposit in Treasury of United States.
13.46 Compromise or settlement.
13.47 Limitations.

    Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C., Ch. 1, 
sections 101 et seq.); 5 U.S.C. 301; 31 U.S.C. 3801-3812.

    Source: 70 FR 59211, Oct. 12, 2005, unless otherwise noted.



Sec.  13.1  Basis, purpose, scope and effect.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, 31 U.S.C. 3801-3812. section 3809 of title 31, United States 
Code, requires each authority to promulgate regulations necessary to 
implement the provisions of the statute.
    (b) Purpose. This part:
    (1) Establishes administrative procedures for imposing civil 
penalties and assessments against Persons who Make, submit, or present, 
or cause to be Made, submitted, or presented, false, fictitious, or 
fraudulent Claims or written Statements to the Authority or to certain 
others; and
    (2) Specifies the hearing and appeal rights of Persons subject to 
allegations of liability for such penalties and assessments.
    (c) Scope. This part applies to all components of the Department of 
Homeland Security.
    (d) Effect. (1) This part applies to program fraud cases initiated 
by any component of the Department of Homeland Security on or after 
October 12, 2005.

[[Page 143]]

    (2) Program fraud cases initiated by any component of the Department 
of Homeland Security before October 12, 2005, but not completed before 
October 12, 2005, will continue to completion under the rules and 
procedures in effect before this part.



Sec.  13.2  Definitions.

    The following definitions have general applicability throughout this 
part:
    (a) ALJ means an Administrative Law Judge in the Authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the Authority pursuant to 5 
U.S.C. 3344. An ALJ will preside at any hearing convened under the 
regulations in this part.
    (b) Authority means the Department of Homeland Security.
    (c) Authority Head means the Deputy Secretary, Department of 
Homeland Security, or another officer designated by the Deputy 
Secretary.
    (d) Benefit means, in the context of a Statement, anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status, or loan guarantee.
    (e) Claim means any request, demand, or submission:
    (1) Made to the Authority for property, services, or money 
(including money representing grants, loans, insurance, or Benefits);
    (2) Made to a recipient of property, services, or money from the 
Authority or to a party to a contract with the Authority:
    (i) For property or services if the United States:
    (A) Provided such property or services;
    (B) Provided any portion of the funds for the purchase of such 
property or services; or
    (C) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (ii) For the payment of money (including money representing grants, 
loans, insurance, or Benefits) if the United States:
    (A) Provided any portion of the money requested or demanded; or
    (B) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to the Authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    (f) Complaint means the administrative Complaint served by the 
Reviewing Official on the Defendant under Sec.  13.7.
    (g) Defendant means any Person alleged in a Complaint under Sec.  
13.7 to be liable for a civil penalty or assessment under Sec.  13.3.
    (h) Government means the Government of the United States.
    (i) Individual means a natural Person.
    (j) Initial Decision means the written decision of the ALJ required 
by Sec.  13.10 or Sec.  13.37, and includes a revised Initial Decision 
issued following a remand or a motion for reconsideration.
    (k) Investigating Official means the Inspector General of the 
Department of Homeland Security or an officer or employee of the Office 
of the Inspector General designated by the Inspector General and 
eligible under 31 U.S.C. 3801(a)(4)(B).
    (l) Knows or Has Reason to Know, means that a Person, with respect 
to a Claim or Statement:
    (1) Has actual knowledge that the Claim or Statement is false, 
fictitious, or fraudulent;
    (2) Acts in deliberate ignorance of the truth or falsity of the 
Claim or Statement; or
    (3) Acts in reckless disregard of the truth or falsity of the Claim 
or Statement.
    (m) Makes includes presents, submits, and causes to be made, 
presented, or submitted. As the context requires, Making or Made will 
likewise include the corresponding forms of such terms.
    (n) Person means any Individual, partnership, corporation, 
association, or private organization, and includes the plural of that 
term.
    (o) Representative means an attorney who is a member in good 
standing of the bar of any State, Territory, or possession of the United 
States, the District of Columbia, or the Commonwealth of Puerto Rico. 
This definition is not intended to foreclose pro se appearances. That 
is, an Individual may appear for himself or herself, and a corporation 
or other entity may appear by

[[Page 144]]

an owner, officer, or employee of the corporation or entity.
    (p) Reviewing Official means the General Counsel of the Department 
of Homeland Security, or other officer or employee of the Department who 
is designated by the General Counsel and eligible under 31 U.S.C. 
3801(a)(8).
    (q) Statement means any representation, certification, affirmation, 
Document, record, or accounting or bookkeeping entry Made:
    (1) With respect to a Claim or to obtain the approval or payment of 
a Claim (including relating to eligibility to Make a Claim); or
    (2) With respect to (including relating to eligibility for):
    (i) A contract with, or bid or proposal for a contract with the 
Authority, or any State, political subdivision of a State, or other 
party, if the United States Government provides any portion of the money 
or property under such contract or for such grant, loan, or Benefit, or 
if the Government will reimburse such State, political subdivision, or 
party for any portion of the money or property under such contract or 
for such grant, loan, or Benefit; or
    (ii) A grant, loan, or Benefit from, the Authority, or any State, 
political subdivision of a State, or other party, if the United States 
Government provides any portion of the money or property under such 
contract or for such grant, loan, or Benefit, or if the Government will 
reimburse such State, political subdivision, or party for any portion of 
the money or property under such contract or for such grant, loan, or 
Benefit.



Sec.  13.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
a Person will be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,500 for each 
Claim (as adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Public Law 101-140), as amended by the 
Debt Collection Improvement Act of 1996 (Public Law 104-134)) if such 
Person Makes a Claim that such Person Knows or Has Reason to Know:
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written Statement that asserts 
a material fact that is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written Statement that:
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a Statement in which the Person Making such Statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services that 
the Person has not provided as claimed.
    (2) Each voucher, invoice, Claim form, or other Individual request 
or demand for property, services, or money constitutes a separate Claim.
    (3) A Claim will be considered Made to the Authority, recipient, or 
party when such Claim is actually Made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the Authority, recipient, or party.
    (4) Each Claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has Made any payment (including transferred 
property or provided services) on a Claim, a Person subject to a civil 
penalty under paragraph (a)(1) of this section will also be subject to 
an assessment of not more than twice the amount of such Claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment will be in lieu of damages 
sustained by the Government because of such Claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, a Person will be subject, in addition to any other remedy that 
may be prescribed by law, to a civil penalty of not more than $5,500 (as 
adjusted in accordance with the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (Public Law 101-140), as amended by the Debt 
Collection Improvement Act of 1996 (Public Law 104-134)) if such Person 
Makes a written Statement that:
    (i) The Person Knows or Has Reason to Know:

[[Page 145]]

    (A) Asserts a material fact that is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the Person Making the Statement has a duty to include in such 
Statement; and
    (ii) Contains, or is accompanied by, an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
Statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate Statement.
    (3) A Statement will be considered Made to the Authority when such 
Statement is actually Made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the Authority.
    (c) Specific intent not required. No proof of specific intent to 
defraud is required to establish liability under this section.
    (d) More than one Person liable. (1) In any case in which it is 
determined that more than one Person is liable for Making a Claim or 
Statement under this section, each such Person may be held liable for a 
civil penalty under this section.
    (2) In any case in which it is determined that more than one Person 
is liable for Making a Claim under this section on which the Government 
has Made payment (including transferred property or provided services), 
an assessment may be imposed against any such Person or jointly and 
severally against any combination of such Persons.



Sec.  13.4  Investigation.

    (a) If an Investigating Official concludes that a subpoena pursuant 
to the Authority conferred by 31 U.S.C. 3804(a) is warranted:
    (1) The subpoena so issued will notify the Person to whom it is 
addressed of the Authority under which the subpoena is issued and will 
identify the records or Documents sought;
    (2) The Investigating Official may designate a Person to act on his 
or her behalf to receive the Documents sought; and
    (3) The Person receiving such subpoena will be required to tender to 
the Investigating Official or the Person designated to receive the 
Documents a certification that the Documents sought have been produced, 
or that such Documents are not available and the reasons therefore, or 
that such Documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the Investigating Official concludes that an action under the 
Act may be warranted, the Investigating Official will submit a report 
containing the findings and conclusions of such investigation to the 
Reviewing Official.
    (c) Nothing in this section will preclude or limit an Investigating 
Official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
defer or postpone a report or referral to the Reviewing Official to 
avoid interference with a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
Investigating Official to report violations of criminal law to the 
Attorney General.



Sec.  13.5  Review by the Reviewing Official.

    (a) If, based on the report of the Investigating Official under 
Sec.  13.4(b), the Reviewing Official determines that there is adequate 
evidence to believe that a Person is liable under Sec.  13.3, the 
Reviewing Official will transmit to the Attorney General a written 
notice of the Reviewing Official's intention to issue a Complaint under 
Sec.  13.7.
    (b) Such notice will include:
    (1) A Statement of the Reviewing Official's reasons for issuing a 
Complaint;
    (2) A Statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the Claims or Statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other Benefits requested or demanded in violation of Sec.  
13.3;
    (5) A Statement of any exculpatory or mitigating circumstances that 
may relate to the Claims or Statements known by the Reviewing Official 
or the Investigating Official; and

[[Page 146]]

    (6) A Statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec.  13.6  Prerequisites for issuing a Complaint.

    (a) The Reviewing Official may issue a Complaint under Sec.  13.7 
only if:
    (1) The Department of Justice approves the issuance of a Complaint 
in a written Statement described in 31 U.S.C. 3803(b)(1); and
    (2) In the case of allegations of liability under Sec.  13.3(a) with 
respect to a Claim, the Reviewing Official determines that, with respect 
to such Claim or a group of related Claims submitted at the same time 
such Claim is submitted (as defined in paragraph (b) of this section), 
the amount of money or the value of property or services demanded or 
requested in violation of Sec.  13.3(a) does not exceed $150,000.
    (b) For the purposes of this section, a related group of Claims 
submitted at the same time will include only those Claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section will be construed to limit the Reviewing 
Official's authority to join in a single Complaint against a Person's 
Claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec.  13.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a Complaint in accordance with 31 U.S.C. 3803(b)(1), the 
Reviewing Official may serve a Complaint on the Defendant, as provided 
in Sec.  13.8.
    (b) The Complaint will state:
    (1) The allegations of liability against the Defendant, including 
the statutory basis for liability, an identification of the Claims or 
Statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such Claims or Statements;
    (2) The maximum amount of penalties and assessments for which the 
Defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific Statement of the Defendant's right to request a 
hearing by filing an answer and to be represented by a Representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
Complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in Sec.  
13.10.
    (5) That the Defendant may obtain copies of relevant material and 
exculpatory information pursuant to the process outlined in Sec.  13.20.
    (c) At the same time the Reviewing Official serves the Complaint, he 
or she will serve the Defendant with a copy of the regulations in this 
part.



Sec.  13.8  Service of Complaint.

    (a) Service of a Complaint must be Made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service of a Complaint is complete upon 
receipt.
    (b) Proof of service, stating the name and address of the Person on 
whom the Complaint was served, and the manner and date of service, may 
be Made by:
    (1) Affidavit of the Individual serving the Complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the Defendant or his or her 
Representative; or
    (4) In case of service abroad, authentication in accordance with the 
Convention on Service Abroad of Judicial and Extrajudicial Documents in 
Commercial and Civil Matters.



Sec.  13.9  Answer.

    (a) The Defendant may request a hearing by serving an answer on the 
Reviewing Official within 30 days of service of the Complaint. Service 
of an answer will be Made by delivering a copy to the Reviewing Official 
or by placing a copy in the United States mail, postage prepaid and 
addressed to the Reviewing Official. Service of an

[[Page 147]]

answer is complete upon such delivery or mailing. An answer will be 
deemed to be a request for hearing.
    (b) In the answer, the Defendant:
    (1) Will admit or deny each of the allegations of liability Made in 
the Complaint;
    (2) Will state any defense on which the Defendant intends to rely;
    (3) May state any reasons why the Defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Will state the name, address, and telephone number of the Person 
authorized by the Defendant to act as Defendant's Representative, if 
any.
    (c) If the Defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the Defendant may, before the expiration of 30 days from service of the 
Complaint, serve on the Reviewing Official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to serve an answer meeting the requirements of 
paragraph (b) of this section. The Reviewing Official will file promptly 
the Complaint, the general answer denying liability, and the request for 
an extension of time as provided in Sec.  13.11. For good cause shown, 
the ALJ may grant the Defendant up to 30 additional days from the 
original due date within which to serve an answer meeting the 
requirements of paragraph (b) of this section.



Sec.  13.10  Default upon failure to answer.

    (a) If the Defendant does not answer within the time prescribed in 
Sec.  13.9(a), the Reviewing Official may refer the Complaint to an ALJ 
by filing the Complaint and a Statement that Defendant has failed to 
answer on time.
    (b) Upon the referral of the Complaint, the ALJ will promptly serve 
on Defendant in the manner prescribed in Sec.  13.8, a notice that an 
Initial Decision will be issued under this section.
    (c) In addition, the ALJ will assume the facts alleged in the 
Complaint to be true, and, if such facts establish liability under Sec.  
13.3, the ALJ will issue an Initial Decision imposing the maximum amount 
of penalties and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to 
answer on time, the Defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the Initial Decision will become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an Initial Decision becomes final, the Defendant 
files a motion seeking to reopen on the grounds that extraordinary 
circumstances prevented the Defendant from answering, the Initial 
Decision will be stayed pending the ALJ's decision on the motion.
    (f) If, on such motion, the Defendant can demonstrate extraordinary 
circumstances excusing the failure to answer on time, the ALJ will 
withdraw the Initial Decision in paragraph (c) of this section, if such 
a decision has been issued, and will grant the Defendant an opportunity 
to answer the Complaint.
    (g) A decision of the ALJ denying a Defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec.  13.38.
    (h) The Defendant may appeal to the Authority Head the decision 
denying a motion to reopen by filing a notice of appeal in accordance 
with Sec.  13.26 within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal will stay the Initial Decision until 
the Authority Head decides the issue.
    (i) If the Defendant files a timely notice of appeal with the 
Authority Head, the ALJ will forward the record of the proceeding to the 
Authority Head.
    (j) The Authority Head will decide expeditiously whether 
extraordinary circumstances excuse the Defendant's failure to answer on 
time based solely on the record before the ALJ.
    (k) If the Authority Head decides that extraordinary circumstances 
excused the Defendant's failure to answer on time, the Authority Head 
will remand the case to the ALJ with instructions to grant the Defendant 
an opportunity to answer.
    (l) If the Authority Head decides that the Defendant's failure to 
answer on time is not excused, the Authority Head will reinstate the 
Initial Decision of the ALJ, which will become final

[[Page 148]]

and binding upon the parties 30 days after the Authority Head issues 
such decision.



Sec.  13.11  Referral of Complaint and answer to the ALJ.

    Upon receipt of an answer, the Reviewing Official will refer the 
matter to an ALJ by filing the Complaint and answer in accordance with 
Sec.  13.26.



Sec.  13.12  Notice of hearing.

    (a) When the ALJ receives the Complaint and answer, the ALJ will 
promptly serve a notice of hearing upon the Defendant in the manner 
prescribed by Sec.  13.8.
    (b) Such notice will include:
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the Representative of 
the Government and of the Defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec.  13.13  Parties to the hearing.

    (a) The parties to the hearing will be the Defendant and the 
Authority.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec.  13.14  Separation of functions.

    (a) The Investigating Official, the Reviewing Official, and any 
employee or agent of the Authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case:
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the Initial Decision or the review of 
the Initial Decision by the Authority Head, except as a witness or a 
Representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ will not be responsible to, or subject to the 
supervision or direction of, the Investigating Official or the Reviewing 
Official.
    (c) Except as provided in paragraph (a) of this section, the 
Representative for the Government may be employed anywhere in the 
Authority, including in the offices of either the Investigating Official 
or the Reviewing Official.



Sec.  13.15  Ex parte contacts.

    No party or Person (except employees of the ALJ's office) will 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a Person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec.  13.16  Disqualification of Reviewing Official or ALJ.

    (a) A Reviewing Official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file a motion for disqualification of a Reviewing 
Official or an ALJ. Such motion will be accompanied by an affidavit 
alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit will be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections will be deemed waived.
    (d) Such affidavit will state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It will be accompanied by a certificate of the Representative of 
record that it is Made in good faith.
    (e)(1) If the ALJ determines that a Reviewing Official is 
disqualified, the ALJ will dismiss the Complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case will be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the Authority Head may 
determine the matter only as part of his or

[[Page 149]]

her review of the Initial Decision upon appeal, if any.



Sec.  13.17  Rights of parties.

    Except as otherwise limited by this part, all parties may:
    (a) Be accompanied, represented, and advised by a Representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which will be Made part of 
the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec.  13.18  Authority of the ALJ.

    (a) The ALJ will conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is Made.
    (b) The ALJ has the authority to:
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of Documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
Representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
Person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to Make any determinations 
regarding the validity of treaties or other international agreements, 
Federal statutes or regulations, or Departmental Orders or Directives.



Sec.  13.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ will schedule at least one 
prehearing conference at a reasonable time in advance of the hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite Statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of Documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.

[[Page 150]]



Sec.  13.20  Disclosure of Documents.

    (a) Upon written request to the Reviewing Official, the Defendant 
may review, at a time and place convenient to the Authority, any 
relevant and material Documents, transcripts, records, and other 
materials that relate to the allegations set out in the Complaint and 
upon which the findings and conclusions of the Investigating Official 
under Sec.  13.4(b) are based, unless such Documents are subject to a 
privilege under Federal law. Special arrangements as to confidentiality 
may be required by the Reviewing Official, who may also assert privilege 
or other related doctrines. Upon payment of fees for duplication, the 
Defendant may obtain copies of such Documents.
    (b) Upon written request to the Reviewing Official, the Defendant 
also may obtain a copy of all exculpatory information in the possession 
of the Reviewing Official or Investigating Official relating to the 
allegations in the Complaint, even if it is contained in a Document that 
would otherwise be privileged. If the Document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the Reviewing 
Official as described in Sec.  13.5 is not discoverable under any 
circumstances.
    (d) The Defendant may file a motion to compel disclosure of the 
Documents subject to the provisions of this section. Such a motion may 
only be filed following the serving of an answer pursuant to Sec.  13.9.



Sec.  13.21  Discovery.

    (a) In general. (1) The following types of discovery are authorized:
    (i) Requests for production of Documents for inspection and copying;
    (ii) Requests for admissions of the authenticity of any relevant 
Document or of the truth of any relevant fact;
    (iii) Written interrogatories; and
    (iv) Depositions.
    (2) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ will regulate the timing of 
discovery.
    (b) Documents defined. (1) For the purpose of this section and 
Sec. Sec.  13.22 and 13.23, the term Documents includes information, 
documents, reports, answers, records, accounts, papers, and other data 
and documentary evidence.
    (2) Nothing in this part will be interpreted to require the creation 
of a Document.
    (c) Motions for discovery. (1) A party seeking discovery may file a 
motion. Such a motion will be accompanied by a copy of the request for 
production of Documents, request for admissions, or interrogatories or, 
in the case of depositions, a summary of the scope of the proposed 
deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion or a motion for protective order as provided in Sec.  13.24.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought:
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec.  13.24.
    (d) Depositions. (1) If a motion for deposition is granted, the ALJ 
will issue a subpoena for the deponent, which may require the deponent 
to produce Documents. The subpoena will specify the time and place at 
which the deposition will be held. Deposition requests for senior level 
DHS officials (including career and non-career senior executive level 
employees) shall not be approved absent showing of compelling need that 
cannot be met by any other means.
    (2) The party seeking to depose will serve the subpoena in the 
manner prescribed in Sec.  13.8.
    (3) The deponent may file a motion to quash the subpoena or a motion 
for a protective order within ten days of service. If the ALJ has not 
acted on such a motion by the return date, such date will be suspended 
pending the ALJ's final action on the motion.
    (4) The party seeking to depose will provide for the taking of a 
verbatim

[[Page 151]]

transcript of the deposition, which it will Make available to all other 
parties for inspection and copying.
    (e) Each party will bear its own costs of discovery.



Sec.  13.22  Exchange of witness lists, Statements, and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties will exchange witness lists, copies 
of prior Statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written Statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec.  13.33(b). At the time the above Documents are exchanged, any party 
that intends to rely on the transcript of deposition testimony in lieu 
of live testimony at the hearing, if permitted by the ALJ, will provide 
each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ will not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
of any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
Documents exchanged in accordance with paragraph (a) of this section 
will be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec.  13.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
Individual at the hearing may request that the ALJ issue a subpoena. 
Requests for witness testimony of senior level DHS officials (including 
career and non-career senior executive level employees) shall not be 
approved absent a showing of compelling need that cannot be met by any 
other means.
    (b) A subpoena requiring the attendance and testimony of an 
Individual may also require the Individual to produce Documents at the 
hearing.
    (c) A party seeking a subpoena will file a written request therefore 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request will be 
accompanied by a proposed subpoena, which will specify and Documents to 
be produced and will designate the witnesses and describe the address 
and location thereof with sufficient particularity to permit such 
witnesses to be found.
    (d) The subpoena will specify the time and place at which the 
witness is to appear and any Documents the witness is to produce.
    (e) The party seeking the subpoena will serve it in the manner 
prescribed in Sec.  13.8. A subpoena on a party or upon an Individual 
under the control of party may be served by first class mail.
    (f) A party or the Individual to whom the subpoena is directed may 
file a motion to quash the subpoena within ten days after service or on 
or before the time specified in the subpoena for compliance if it is 
less than ten days after service. If the ALJ has not acted on such a 
motion by the return date, such date will be suspended pending the ALJ's 
final action on the motion.



Sec.  13.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may Make any order that 
justice requires to protect a party or Person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except Persons 
designated by the ALJ;

[[Page 152]]

    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; and
    (9) That the parties simultaneously submit to the ALJ specified 
Documents or information enclosed in sealed envelopes to be opened as 
directed by the ALJ.



Sec.  13.25  Fees.

    The party requesting a subpoena will pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage will accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the Authority, a 
check for witness fees and mileage need not accompany the subpoena.



Sec.  13.26  Filing, form and service of papers.

    (a) Filing and form. (1) Documents filed with the ALJ will include 
an original and two copies.
    (2) Every pleading and paper filed in the proceeding will contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, and a designation of the paper (e.g., Motion to Quash 
Subpoena).
    (3) Every pleading and paper will be signed by, and will contain the 
address and telephone number of, the party or the Person on whose behalf 
the paper was filed, or his or her Representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
Representative or by proof that the Document was sent by certified or 
registered mail.
    (b) Service. A party filing a Document will, at the time of filing, 
serve a copy of such Document on every other party. Service upon any 
party of any Document other than those required to be served as 
prescribed in Sec.  13.8 will be Made by delivering a copy, or by 
placing a copy of the Document in the United States mail, postage 
prepaid and addressed, to the party's last known address. When a party 
is represented by a Representative, service will be Made upon such 
Representative in lieu of the actual party.
    (c) Proof of service. A certificate of the Individual serving the 
Document by Personal delivery or by mail, setting forth the manner of 
service, will be proof of service.



Sec.  13.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal Government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal Government will be excluded from the computation.
    (c) Where a Document has been served or issued by placing it in the 
United States mail, an additional five days will be added to the time 
permitted for any responses.



Sec.  13.28  Motions.

    (a) Any application to the ALJ for an order or ruling will be by 
motion. Motions will state the relief sought, the authority relied upon, 
and the facts alleged, and will be filed and served on all other 
parties.
    (b) Except for motions Made during a prehearing conference or at the 
hearing, all motions will be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing response thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.

[[Page 153]]

    (e) The ALJ will Make a reasonable effort to dispose of all 
outstanding motions before the hearing begins.
    (f) Except as provided by Sec. Sec.  13.21(e)(3) and 13.23(f), which 
concern subpoenas, the filing or pendency of a motion will not 
automatically alter or extend a deadline or return date.



Sec.  13.29  Sanctions.

    (a) The ALJ may sanction a Person, including any party or 
Representative, for:
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Sanctions include but are not limited to those specifically set 
forth in paragraphs (c), (d), and (e) of this section. Any such sanction 
will reasonably relate to the severity and nature of the failure or 
misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may:
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part begun by service of a notice of hearing, the ALJ may dismiss the 
action or may issue an Initial Decision imposition penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other Document that is not filed in a timely fashion.



Sec.  13.30  The hearing and burden of proof.

    (a) The ALJ will conduct a hearing on the record in order to 
determine whether the Defendant is liable for a civil penalty or 
assessment under Sec.  13.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The Authority will prove Defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The Defendant will prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing will be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec.  13.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the Authority Head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, ordinarily double damages 
and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the Authority Head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false fictitious, of fraudulent Claims or 
Statements) charged in the Complaint:
    (1) The number of false, fictitious, or fraudulent Claims or 
Statements;
    (2) The time period over which such Claims or Statements were Made;
    (3) The degree of the Defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
Benefit falsely claimed;

[[Page 154]]

    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the Defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the Defendant attempted to conceal the misconduct;
    (10) The degree to which the Defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
Defendant, the extent to which the Defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the Defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the Defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the Defendant's sophistication with respect to it, including the extent 
of the Defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the Defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
State, directly or indirectly; and
    (16) The need to deter the Defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section will be construed to limit the ALJ or 
the Authority Head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec.  13.32  Location of hearing.

    (a) The hearing may be held:
    (1) In any judicial district of the United States in which the 
Defendant resides or transacts business;
    (2) In any judicial district of the United States in which the Claim 
or Statement in issue was Made; or
    (3) In such other place as may be agreed upon by the Defendant and 
the ALJ.
    (b) Each party will have the opportunity to present written and oral 
argument with respect to the location of the hearing.
    (c) The hearing will be held at the place and at the time ordered by 
the ALJ.



Sec.  13.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing will be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written Statement or deposition. Any such written Statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner that allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written Statements of witnesses proposed to testify at the hearing 
and deposition transcripts will be exchanged as provided in Sec.  
13.22(a).
    (c) The ALJ will exercise reasonable control over the mode and order 
of interrogating witnesses and presenting evidence so as to:
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth;
    (2) Avoid needless consumption of time; and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ will permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted

[[Page 155]]

by the ALJ, cross-examination on matters outside the scope of direct 
examination will be conducted in the manner of direct examination and 
may proceed by leading questions only if the witness is a hostile 
witness, an adverse party, or a witness identified with an adverse 
party.
    (f) Upon motion of any party, the ALJ will order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of:
    (1) A party who is an Individual;
    (2) In the case of a party that is not an Individual, an officer or 
employee of the party;
    (i) Appearing for the entity pro se; or
    (ii) Designated by the party's Representative; or
    (3) An Individual whose presence is shown by a party to be essential 
to the presentation of its case, including an Individual employed by the 
Government engaged in assisting the Representative for the Government.



Sec.  13.34  Evidence.

    (a) The ALJ will determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ will not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ will exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement will be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ will permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All Documents and other evidence offered or taken for the record 
will be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec.  13.24.



Sec.  13.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
Authority Head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec.  13.24.



Sec.  13.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ will fix the 
time for filing such briefs. Such briefs may be accompanied by proposed 
findings of fact and conclusions of law. The ALJ may permit the parties 
to file reply briefs.



Sec.  13.37  Initial Decision.

    (a) The ALJ will issue an Initial Decision based only on the record, 
which will contain findings of fact, conclusions of law, and the amount 
of any penalties and assessments imposed.
    (b) The findings of fact will include a finding on each of the 
following issues:
    (1) Whether the Claims or Statements identified in the Complaint, or 
any portions thereof, violate Sec.  13.3;
    (2) If the Person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec.  13.31.
    (c) The ALJ will promptly serve the Initial Decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ will at the same time 
serve all parties with a Statement describing the right of any Defendant 
determined to be liable for a civil penalty or assessment to file a 
motion for reconsideration with the

[[Page 156]]

ALJ or a notice of appeal with the Authority Head. If the ALJ fails to 
meet the deadline contained in this paragraph, he or she will notify the 
parties of the reason for the delay and will set a new deadline.
    (d) Unless the Initial Decision of the ALJ is timely appealed to the 
Authority Head, or a motion for reconsideration of the Initial Decision 
is timely filed, the Initial Decision will constitute the final decision 
of the Authority Head and will be final and binding on the parties 30 
days after it is issued by the ALJ.



Sec.  13.38  Reconsideration of Initial Decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the Initial Decision within 20 
days of receipt of the Initial Decision. If service was Made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion will be accompanied by a supporting brief.
    (c) Responses to such motions will be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an Initial 
Decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised Initial Decision.
    (f) If the ALJ denies a motion for reconsideration, the Initial 
Decision will constitute the final decision of the Authority Head and 
will be final and binding on the parties 30 days after the ALJ denies 
the motion, unless the Initial Decision is timely appealed to the 
Authority Head in accordance with Sec.  13.39.
    (g) If the ALJ issues a revised Initial Decision, that decision will 
constitute the final decision of the Authority Head and will be final 
and binding on the parties 30 days after it is issued, unless it is 
timely appealed to the Authority Head in accordance with Sec.  13.39.



Sec.  13.39  Appeal to Authority Head.

    (a) Any Defendant who has served a timely answer and who is 
determined in an Initial Decision to be liable for a civil penalty or 
assessment may appeal such decision to the Authority Head by filing a 
notice of appeal in accordance with this section and Sec.  13.26.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an Initial Decision. However, if another party 
files a motion for reconsideration under Sec.  13.38, consideration of 
the appeal will be stayed automatically pending resolution of the motion 
for reconsideration.
    (2) If a Defendant files a timely motion for reconsideration, a 
notice of appeal may be filed within 30 days after the ALJ denies the 
motion or issues a revised Initial Decision, whichever applies.
    (3) The Authority Head may extend the initial 30-day period for an 
additional 30 days if the Defendant files with the Authority Head a 
request for an extension within the initial 30-day period and shows good 
cause.
    (c) If the Defendant files a timely notice of appeal and the time 
for filing motions for reconsideration under Sec.  13.38 has expired, 
the ALJ will forward two copies of the notice of appeal to the Authority 
Head, and will forward or Make available the record of the proceeding to 
the Authority Head.
    (d) A notice of appeal will be accompanied by a written brief 
specifying exceptions to the Initial Decision and reasons supporting the 
exceptions.
    (e) The Representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the Authority 
Head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the Initial Decision, the Authority Head will not 
consider any objection that was not raised before the ALJ unless a 
demonstration is Made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the Authority 
Head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure

[[Page 157]]

to present such evidence at such hearing, the Authority Head will remand 
the matter to the ALJ for consideration of such additional evidence.
    (j) The Authority Head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment determined by the ALJ in any 
Initial Decision.
    (k) The Authority Head will promptly serve each party to the appeal 
with a copy of the decision of the Authority Head and with a Statement 
describing the right of any Person determined to be liable for a penalty 
or assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a Defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the Authority Head 
serves the Defendant with a copy of the Authority Head's decision, a 
determination that a Defendant is liable under Sec.  13.3 is final and 
is not subject to judicial review.



Sec.  13.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the Authority Head a 
written finding that continuation of the administrative process 
described in this part with respect to a Claim or Statement may 
adversely affect any pending or potential criminal or civil action 
related to such Claim or Statement, the Authority Head will stay the 
process immediately. The Authority Head may order the process resumed 
only upon receipt of the written authorization of the Attorney General.



Sec.  13.41  Stay pending appeal.

    (a) An Initial Decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the Authority Head.
    (b) No administrative stay is available following a final decision 
of the Authority Head.



Sec.  13.42  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the Authority Head imposing penalties or assessments under 
this part and specifies the procedures for such review.



Sec.  13.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec.  13.44  Right to administrative offset.

    The amount of any penalty or assessment that has become final, or 
for which a judgment has been entered under Sec.  13.42 or Sec.  13.43, 
or any amount agreed upon in a compromise or settlement under Sec.  
13.46, may be collected by administrative offset under 31 U.S.C. 3716, 
except that an administrative offset may not be Made under that 
subsection against a refund of an overpayment of Federal taxes, then or 
later owing by the United States to the Defendant.



Sec.  13.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part will be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec.  13.46  Compromise or settlement.

    (a) Parties may Make offers of compromise or settlement at any time.
    (b) The Reviewing Official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
Reviewing Official is permitted to issue a Complaint and before the date 
on which the ALJ issues an Initial Decision.
    (c) The Authority Head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an Initial Decision, except during the pendency of any review 
under Sec.  13.42 or during the pendency of any action to collect 
penalties and assessments under Sec.  13.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec.  13.42 or of

[[Page 158]]

any action to recover penalties and assessments under 31 U.S.C. 3806.
    (e) The Investigating Official may recommend settlement terms to the 
Reviewing Official, the Authority Head, or the Attorney General, as 
appropriate. The Reviewing Official may recommend settlement terms to 
the Authority Head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing and signed by 
all parties and their Representatives.



Sec.  13.47  Limitations.

    (a) The notice of hearing with respect to a Claim or Statement must 
be served in the manner specified in Sec.  13.8 within 6 years after the 
date on which such Claim or Statement is Made.
    (b) If the Defendant fails to serve a timely answer, service of a 
notice under Sec.  13.10(b) will be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.



PART 15_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF HOMELAND SECURITY--Table of Contents



Sec.
15.1 Purpose.
15.2 Application.
15.3 Definitions.
15.10 Self-evaluation.
15.11 Notice.
15.30 General prohibitions against discrimination.
15.40 Employment.
15.49 Program accessibility; discrimination prohibited.
15.50 Program accessibility; existing facilities.
15.51 Program accessibility; new construction and alterations.
15.60 Communications.
15.70 Compliance procedures.

    Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5 
U.S.C. 301; 29 U.S.C. 794.

    Source: 68 FR 10886, Mar. 6, 2003, unless otherwise noted.



Sec.  15.1  Purpose.

    The purpose of this part is to effectuate section 504 of the 
Rehabilitation Act of 1973 (``Section 504''), as amended by section 119 
of the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978, which prohibits discrimination on the 
basis of disability in programs or activities conducted by Executive 
agencies. The provisions established by this part shall be effective for 
all components of the Department, including all Department components 
that are transferred to the Department, except to the extent that a 
Department component already has existing section 504 regulations.



Sec.  15.2  Application.

    This part applies to all programs or activities conducted by the 
Department of Homeland Security (Department), except for programs or 
activities conducted outside the United States that do not involve 
individuals with a disability in the United States.



Sec.  15.3  Definitions.

    For purposes of this part:
    (a) Auxiliary aids means services or devices that enable persons 
with impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Department. For example, auxiliary aids 
useful for persons with impaired vision include readers, materials in 
Braille, audio recordings and other similar services and devices. 
Auxiliary aids useful for persons with impaired hearing include 
telephone handset amplifiers, telephones compatible with hearing aids, 
telecommunications devices for deaf persons (TTYs), interpreters, 
notetakers, written materials and other similar services and devices.
    (b) Complete complaint means a written statement that contains the 
complainant's name and address, and describes the Department's alleged 
discriminatory action in sufficient detail to inform the Department of 
the nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes of individuals with 
disabilities shall also identify (where possible) the alleged victims of 
discrimination.

[[Page 159]]

    (c) Facility means all or any portion of a building, structure, 
equipment, road, walk, parking lot, rolling stock, or other conveyance, 
or other real or personal property.
    (d) Individual with a disability means any person who has a physical 
or mental impairment that substantially limits one or more of the 
individual's major life activities, has a record of such an impairment, 
or is regarded as having such an impairment. For purposes of this 
definition:
    (1) Physical or mental impairment includes:
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs, cardiovascular; reproductive, digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more of the individual's major life 
activities.
    (4) Is regarded as having an impairment means:
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Department as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (e)(1) of 
this section but is treated by the Department as having such an 
impairment.
    (e) Qualified individual with a disability means:
    (1) With respect to a Department program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, an individual with a disability who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
Department can demonstrate would result in a fundamental alteration in 
the nature of the program; and
    (2) With respect to any other program or activity, an individual 
with a disability who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) With respect to employment, an individual with a disability who 
satisfies the requisite skill, experience, education and other job-
related requirements of the employment position such individual holds or 
desires, and who, with or without reasonable accommodation, can perform 
the essential functions of such position.
    (f) Section 504 means section 504 of the Rehabilitation Act of 1973 
(29 U.S.C. 794), as amended. As used in this part, section 504 applies 
only to programs or activities conducted by Executive agencies and not 
to federally assisted programs.



Sec.  15.10  Self-evaluation.

    (a) Except as provided in paragraph (d) of this section, the 
Department shall, not later than March 7, 2005, evaluate its current 
policies and practices, and the effects thereof, to determine if they 
meet the requirements of this part. To the extent modification of any 
such policy and practice is required, the Department shall proceed to 
make the necessary modifications.
    (b) The Department shall provide an opportunity to interested 
persons, including individuals with a disability or organizations 
representing individuals

[[Page 160]]

with disabilities, to participate in the self-evaluation process.
    (c) The Department shall, until three years following the completion 
of the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified;
    (2) A description of any modifications made; and
    (3) A list of participants in the self-evaluation process.
    (d) If a component within the Department has already complied with 
the self-evaluation requirement of a regulation implementing section 
504, then the requirements of this section shall apply to only those 
programs and activities conducted by that component that were not 
included in the previous self-evaluation.



Sec.  15.11  Notice.

    The Department shall make available to all Department employees and 
interested persons information regarding the provisions of this part and 
its applicability to the programs or activities conducted by the 
Department, and make such information available to them in such a manner 
as is necessary to apprise them of the protections against 
discrimination assured them by section 504 and this part.



Sec.  15.30  General prohibitions against discrimination.

    (a) No qualified individual with a disability in the United States, 
shall, by reason of his or her disability, be excluded from the 
participation in, be denied benefits of, or otherwise be subjected to 
discrimination under any program or activity conducted by the 
Department.
    (b)(1) The Department, in providing any aid, benefit, or service, 
may not directly or through contractual, licensing, or other 
arrangements, on the basis of disability:
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits or services to 
individuals with a disability or to any class of individuals with a 
disability than is provided to others unless such action is necessary to 
provide qualified individuals with a disability with aid, benefits or 
services that are as effective as those provided to others;
    (v) Deny a qualified individual with a disability the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with a disability in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) For purposes of this part, aids, benefits, and services, to be 
equally effective, are not required to produce the identical result or 
level of achievement for individuals with a disability and for 
nondisabled persons, but must afford individuals with a disability equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement in the most integrated setting 
appropriate to the individual's needs.
    (3) Even if the Department is permitted, under paragraph (b)(1)(iv) 
of this section, to operate a separate or different program for 
individuals with a disability or for any class of individuals with a 
disability, the Department must permit any qualified individual with a 
disability who wishes to participate in the program that is not separate 
or different to do so.
    (4) The Department may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would:
    (i) Subject qualified individuals with a disability to 
discrimination on the basis of disability; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with a disability.

[[Page 161]]

    (5) The Department may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would:
    (i) Exclude individuals with a disability from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the Department; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with a 
disability.
    (6) The Department, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with a disability to 
discrimination on the basis of disability.
    (7) The Department may not administer a licensing or certification 
program in a manner that subjects qualified individuals with a 
disability to discrimination on the basis of disability, nor may the 
Department establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
a disability to discrimination on the basis of disability. However, the 
programs or activities of entities that are licensed or certified by the 
Department are not, themselves, covered by this part.
    (c) The exclusion of nondisabled persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with a disability or the exclusion of a specific class of individuals 
with a disability from a program limited by Federal statute or Executive 
order to a different class of individuals with a disability is not 
prohibited by this part.
    (d) The Department shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with a disability.



Sec.  15.40  Employment.

    No qualified individual with a disability shall, on the basis of 
that disability, be subjected to discrimination in employment under any 
program or activity conducted by the Department. The definitions, 
requirements and procedures of section 501 of the Rehabilitation Act of 
1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity 
Commission in 29 CFR part 1614, shall apply to employment of Federally 
conducted programs or activities.



Sec.  15.49  Program accessibility; discrimination prohibited.

    Except as otherwise provided in Sec.  15.50, no qualified individual 
with a disability shall, because the Department's facilities are 
inaccessible to or unusable by individuals with a disability, be denied 
the benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the Department.



Sec.  15.50  Program accessibility; existing facilities.

    (a) General. The Department shall operate each program or activity 
so that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with a disability. This 
paragraph (a) does not require the Department:
    (1) To make structural alterations in each of its existing 
facilities in order to make them accessible to and usable by individuals 
with a disability where other methods are effective in achieving 
compliance with this section; or
    (2) To take any action that it can demonstrate would result in a 
fundamental alteration in the nature of a program or activity or in 
undue financial and administrative burdens. In those circumstances where 
Department personnel believe that the proposed action would 
fundamentally alter the program or activity or would result in undue 
financial and administrative burdens, the Department has the burden of 
proving that compliance with this paragraph (a) of this section would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the Secretary of 
Homeland Security (or his or her designee) after considering all agency 
resources available for use in the funding and operation of the 
conducted program or activity and must be accompanied by a written 
statement of the reasons for reaching that conclusion. If an action 
would result in such an alteration or such burdens, the Department shall

[[Page 162]]

take any other action that would not result in such an alteration or 
such burdens but would nevertheless ensure that individuals with a 
disability receive the benefits and services of the program or activity.
    (b) Methods. The Department may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with a disability. The Department, in making alterations to 
existing buildings, shall meet accessibility requirements to the extent 
required by the Architectural Barriers Act of 1968, as amended (42 
U.S.C. 4151-4157), and any regulations implementing it. In choosing 
among available methods for meeting the requirements of this section, 
the Department shall give priority to those methods that offer programs 
and activities to qualified individuals with a disability in the most 
integrated setting appropriate.
    (c) Time period for compliance. The Department shall comply with the 
obligations established under this section not later than May 5, 2003, 
except that where structural changes in facilities are undertaken, such 
changes shall be made not later than March 6, 2006, but in any event as 
expeditiously as possible. If a component within the Department has 
already complied with the accessibility requirements of a regulation 
implementing section 504, then the provisions of this paragraph shall 
apply only to facilities for that agency's programs and activities that 
were not previously made readily accessible to and usable by individuals 
with disabilities in compliance with that regulation.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Department shall develop not later than September 8, 2003, a transition 
plan setting forth the steps necessary to complete such changes. The 
Department shall provide an opportunity to interested persons, including 
individuals with disabilities or organizations representing individuals 
with disabilities, to participate in the development of the transition 
plan by submitting comments (both telephonic and written). A copy of the 
transition plan shall be made available for public inspection. If a 
component of the Department has already complied with the transition 
plan requirement of a regulation implementing section 504, then the 
requirements of this paragraph shall apply only to the agency's 
facilities for programs and activities that were not included in the 
previous transition plan. The plan shall at a minimum:
    (1) Identify physical obstacles in the Department's facilities that 
limit the physical accessibility of its programs or activities to 
individuals with disabilities;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec.  15.51  Program accessibility; new construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Department shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with a disability. The definitions, requirements, and 
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as 
established in 41 CFR 101-19.600 through 101-19.607 apply to buildings 
covered by this section.



Sec.  15.60  Communications.

    (a) The Department shall take appropriate steps to effectively 
communicate with applicants, participants, personnel of other Federal 
entities, and members of the public.

[[Page 163]]

    (1) The Department shall furnish appropriate auxiliary aids where 
necessary to afford an individual with a disability an equal opportunity 
to participate in, and enjoy the benefits of, a program or activity 
conducted by the Department.
    (i) In determining what type of auxiliary aid is necessary, the 
Department shall give primary consideration to the requests of the 
individual with a disability.
    (ii) The Department need not provide individually prescribed 
devices, readers for personal use or study, or other devices of a 
personal nature to applicants or participants in programs.
    (2) Where the Department communicates with applicants and 
beneficiaries by telephone, the Department shall use telecommunication 
devices for deaf persons (TTYs) or equally effective telecommunication 
systems to communicate with persons with impaired hearing.
    (b) The Department shall make available to interested persons, 
including persons with impaired vision or hearing, information as to the 
existence and location of accessible services, activities, and 
facilities.
    (c) The Department shall post notices at a primary entrance to each 
of its inaccessible facilities, directing users to an accessible 
facility, or to a location at which they can obtain information about 
accessible facilities. The international symbol for accessibility shall 
be used at each primary entrance of an accessible facility.
    (d) This section does not require the Department to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens.
    (e) In those circumstances where Department personnel believe that 
the proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the 
Department has the burden of proving that compliance with this section 
would result in such alteration or burdens. The decision that compliance 
would result in such alteration or burdens must be made by the Secretary 
of Homeland Security (or his or her designee) after considering all 
resources available for use in the funding and operation of the 
conducted program or activity and must be accompanied by a written 
statement of the reasons for reaching that conclusion. If an action 
required to comply with this section would result in such an alteration 
or such burdens, the Department shall take any other action that would 
not result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with a 
disability receive the benefits and services of the program or activity.



Sec.  15.70  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
disability in programs and activities conducted by the Department.
    (b) The Department shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1614.
    (c) All other complaints alleging violations of section 504 may be 
sent to the Officer for Civil Rights and Civil Liberties, Department of 
Homeland Security, Washington, DC 20528. The Officer for Civil Rights 
and Civil Liberties shall be responsible for coordinating implementation 
of this section.
    (d)(1) Any person who believes that he or she has been subjected to 
discrimination prohibited by this part may by him or herself, or by his 
or her authorized representative, file a complaint. Any person who 
believes that any specific class of persons has been subjected to 
discrimination prohibited by this part and who is a member of that class 
or the authorized representative of a member of that class may file a 
complaint.
    (2) The Department shall accept and investigate all complete 
complaints over which it has jurisdiction.
    (3) All complete complaints must be filed within 180 days of the 
alleged act of discrimination. The Department may extend this time 
period for good cause.

[[Page 164]]

    (e) If the Department receives a complaint over which it does not 
have jurisdiction, it shall promptly notify the complainant and shall 
make reasonable efforts to refer the complaint to the appropriate entity 
of the Federal government.
    (f) The Department shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with disabilities.
    (g)(1) Not later than 180 days from the receipt of a complete 
complaint over which it has jurisdiction, the Department shall notify 
the complainant of the results of the investigation in a letter 
containing:
    (i) Findings of fact and conclusions of law;
    (ii) A description of a remedy for each violation found; and
    (iii) A notice of the right to appeal.
    (2) Department employees are required to cooperate in the 
investigation and attempted resolution of complaints. Employees who are 
required to participate in any investigation under this section shall do 
so as part of their official duties and during the course of regular 
duty hours.
    (3) If a complaint is resolved informally, the terms of the 
agreement shall be reduced to writing and made part of the complaint 
file, with a copy of the agreement provided to the complainant. The 
written agreement shall describe the subject matter of the complaint and 
any corrective action to which the parties have agreed.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant not later than 60 days after 
receipt from the Department of the letter required by paragraph (g)(1) 
of this section. The Department may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Officer 
for Civil Rights and Civil Liberties, or designee thereof, who will 
issue the final agency decision which may include appropriate corrective 
action to be taken by the Department.
    (j) The Department shall notify the complainant of the results of 
the appeal within 30 days of the receipt of the appeal. If the 
Department determines that it needs additional information from the 
complainant, it shall have 30 days from the date it received the 
additional information to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended for an individual case when the Officer for Civil Rights 
and Civil Liberties determines that there is good cause, based on the 
particular circumstances of that case, for the extension.
    (l) The Department may delegate its authority for conducting 
complaint investigations to other Federal agencies and may contract with 
nongovernment investigators to perform the investigation, but the 
authority for making the final determination may not be delegated to 
another agency.



PART 17_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                         Subpart A_Introduction

Sec.
17.100 Purpose and effective date.
17.105 Definitions.
17.110 Remedial and affirmative action and self-evaluation.
17.115 Assurance required.
17.120 Transfers of property.
17.125 Effect of other requirements.
17.130 Effect of employment opportunities.
17.135 Designation of responsible employee and adoption of grievance 
          procedures.
17.140 Dissemination of policy.

                           Subpart B_Coverage

17.200 Application.
17.205 Educational institutions and other entities controlled by 
          religious organizations.
17.210 Military and merchant marine educational institutions.
17.215 Membership practices of certain organizations.
17.220 Admissions.
17.225 Educational institutions eligible to submit transition plans.
17.230 Transition plans.

[[Page 165]]

17.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

17.300 Admission.
17.305 Preference in admission.
17.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

17.400 Education programs or activities.
17.405 Housing.
17.410 Comparable facilities.
17.415 Access to course offerings.
17.420 Access to schools operated by LEAs.
17.425 Counseling and use of appraisal and counseling materials.
17.430 Financial assistance.
17.435 Employment assistance to students.
17.440 Health and insurance benefits and services.
17.445 Marital or parental status.
17.450 Athletics.
17.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

17.500 Employment.
17.505 Employment criteria.
17.510 Recruitment.
17.515 Compensation.
17.520 Job classification and structure.
17.525 Fringe benefits.
17.530 Marital or parental status.
17.535 Effect of state or local law or other requirements.
17.540 Advertising.
17.545 Pre-employment inquiries.
17.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

17.600 Notice of covered programs.
17.605 Enforcement procedures.
17.635 Forms and instructions; coordination.

    Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 5 
U.S.C. 301; 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 68 FR 10892, Mar. 6, 2003, unless otherwise noted.



                         Subpart A_Introduction



Sec.  17.100  Purpose and effective date.

    (a) The purpose of these Title IX regulations is to effectuate Title 
IX of the Education Amendments of 1972, as amended (except sections 904 
and 906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 
1687, 1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be March 6, 2003.
    (b) The provisions established by this part shall be effective for 
all components of the Department, including all Department components 
that are transferred to the Department, except to the extent that a 
Department component already has existing Title IX regulations.



Sec.  17.105  Definitions.

    As used in these Title IX regulations, the term:
    (a) Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    (b) Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    (c) Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    (d) Department means Department of Homeland Security.
    (e) Designated agency official means the Officer for Civil Rights 
and Civil Liberties, or the designee thereof.
    (f) Educational institution means a local educational agency (LEA) 
as defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient

[[Page 166]]

that is an institution of graduate higher education, an institution of 
undergraduate higher education, an institution of professional 
education, or an institution of vocational education, as defined in this 
section.
    (g) Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    (h) Institution of graduate higher education means an institution 
that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    (i) Institution of professional education means an institution 
(except any institution of undergraduate higher education) that offers a 
program of academic study that leads to a first professional degree in a 
field for which there is a national specialized accrediting agency 
recognized by the Secretary of Education.
    (j) Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree;
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    (k) Institution of vocational education means a school or 
institution (except an institution of professional or graduate or 
undergraduate higher education) that has as its primary purpose 
preparation of students to pursue a technical, skilled, or semi-skilled 
occupation or trade, or to pursue study in a technical field, whether or 
not the school or institution offers certificates, diplomas, or degrees 
and whether or not it offers full-time study.
    (l) Recipient means any State or political subdivision thereof or 
any instrumentality of a State or political subdivision thereof, any 
public or private agency, institution, or organization, or other entity, 
or any person, to whom Federal financial assistance is extended directly 
or through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.

[[Page 167]]

    (m) Reviewing authority means that component of the Department 
delegated authority to review the decisions of hearing officers in cases 
arising under these Title IX regulations.
    (n) Secretary means Secretary of the Department of Homeland 
Security.
    (o) Student means a person who has gained admission.
    (p) Title IX means Title IX of the Education Amendments of 1972, 
Public Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 
1681-1688) (except sections 904 and 906 thereof), as amended by section 
3 of Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    (q) Title IX regulations means the provisions of this part.
    (r) Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972 (20 U.S.C. 1681(a)(2)), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.



Sec.  17.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of March 6, 2003:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec.  17.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the

[[Page 168]]

applicant or recipient to whom such assurance applies fails to commit 
itself to take whatever remedial action is necessary in accordance with 
Sec.  17.110(a) to eliminate existing discrimination on the basis of sex 
or to eliminate the effects of past discrimination whether occurring 
prior to or subsequent to the submission to the designated agency 
official of such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec.  17.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec.  17.205 through 17.235(a).



Sec.  17.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec.  17.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.

[[Page 169]]



Sec.  17.135  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec.  17.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec.  17.300 through 17.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec.  17.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of March 6, 2003 or of 
the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B_Coverage



Sec.  17.200  Application.

    Except as provided in Sec. Sec.  17.205 through 17.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.

[[Page 170]]



Sec.  17.205  Educational institutions and other entities controlled by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec.  17.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec.  17.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1986 (26 U.S.C. 501(a)), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec.  17.220  Admissions.

    (a) General. Admissions to educational institutions prior to June 
24, 1973, are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec.  17.225, 17.230, and 17.300 through 17.310, each 
administratively separate unit shall be deemed to be an educational 
institution.
    (c) Application of Sec. Sec.  17.300 through 17.310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  17.300 
through 17.310 apply to each recipient. A recipient to which Sec. Sec.  
17.300 through 17.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec.  17.300 through 
17.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec.  17.300 through 17.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. Sections 
17.300 through 17.310 do not apply to any public institution of 
undergraduate higher education that traditionally and continually from 
its establishment has had a policy of admitting students of only one 
sex.



Sec.  17.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  17.300 through 17.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this

[[Page 171]]

section applies shall not discriminate on the basis of sex in admission 
or recruitment in violation of Sec. Sec.  17.300 through 17.310.



Sec.  17.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  17.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec.  17.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec.  17.300 through 
17.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec.  17.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec.  17.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.

[[Page 172]]

    (c) For purposes of these Title IX regulations, program or activity 
or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in 20 U.S.C. 8801), 
system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship:
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a program or activity subject to these 
Title IX regulations if the college, university, or other institution 
receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec.  17.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Sec. Sec.  17.300 through 17.310 apply, except as 
provided in Sec. Sec.  17.225 and 17.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec.  17.300 through 17.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking

[[Page 173]]

applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec.  17.300 through 17.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec.  17.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec.  17.305  Preference in admission.

    A recipient to which Sec. Sec.  17.300 through 17.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec.  17.300 through 17.310.



Sec.  17.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
17.300 through 17.310 apply shall not discriminate on the basis of sex 
in the recruitment and admission of students. A recipient may be 
required to undertake additional recruitment efforts for one sex as 
remedial action pursuant to Sec.  17.110(a), and may choose to undertake 
such efforts as affirmative action pursuant to Sec.  17.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  17.300 through 17.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec.  17.300 through 17.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec.  17.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
17.400 through 17.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Sec. Sec.  17.300 through 17.310 do not 
apply, or an entity, not a recipient, to which Sec. Sec.  17.300 through 
17.310 would not apply if the entity were a recipient.

[[Page 174]]

    (b) Specific prohibitions. Except as provided in Sec. Sec.  17.400 
through 17.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees; or
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec.  17.405  Housing.

    (a) General. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall

[[Page 175]]

take such reasonable action as may be necessary to assure itself that 
such housing as is provided to students of one sex, when compared to 
that provided to students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec.  17.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec.  17.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to physical education classes and activities at 
the elementary school level, the recipient shall comply fully with this 
section as expeditiously as possible, but in no event later than one 
year from March 6, 2003. With respect to physical education classes and 
activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from March 6, 2003.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec.  17.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec.  17.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis

[[Page 176]]

of sex. Where the use of a counseling test or other instrument results 
in a substantially disproportionate number of members of one sex in any 
particular course of study or classification, the recipient shall take 
such action as is necessary to assure itself that such disproportion is 
not the result of discrimination in the instrument or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec.  17.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex.
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec.  17.450.



Sec.  17.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec.  
17.500 through 17.550.

[[Page 177]]



Sec.  17.440  Health and insurance benefits and services.

    Subject to Sec.  17.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec.  17.500 through 17.550 if it were provided to 
employees of the recipient. This section shall not prohibit a recipient 
from providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.



Sec.  17.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec.  17.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec.  17.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.

[[Page 178]]

    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services; and
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from March 
6, 2003. A recipient that operates or sponsors interscholastic, 
intercollegiate, club, or intramural athletics at the secondary or 
postsecondary school level shall comply fully with this section as 
expeditiously as possible but in no event later than three years from 
March 6, 2003.



Sec.  17.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec.  17.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefore, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec.  17.500 
through 17.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. Sections 17.500 through 17.550 apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;

[[Page 179]]

    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec.  17.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec.  17.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec.  17.500 through 17.550.



Sec.  17.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec.  17.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec.  17.550.



Sec.  17.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, the term fringe benefits means any medical, hospital, 
accident, life insurance, or retirement benefit, service, policy or 
plan, any profit-sharing or bonus plan, leave, and any other benefit or 
service

[[Page 180]]

of employment not subject to the provisions of Sec.  17.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec.  17.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec.  17.235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec.  17.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec.  17.500 through 17.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec.  17.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec.  17.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.

[[Page 181]]



Sec.  17.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec.  
17.500 through 17.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action is essential to successful operation of 
the employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F_Procedures



Sec.  17.600  Notice of covered programs.

    Within 60 days of March 6, 2003, each component of the Department 
that awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such component shall periodically republish the notice of covered 
programs to reflect changes in covered programs. Copies of this notice 
also shall be made available upon request to the Department's office 
that enforces Title IX.



Sec.  17.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 6 CFR part 21.



Sec.  17.635  Forms and instructions; coordination.

    (a) Forms and instructions. The designated agency official shall 
issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating these Title IX 
regulations.
    (b) Supervision and coordination. The designated agency official may 
from time to time assign to officials of the Department, or to officials 
of other departments or agencies of the Government with the consent of 
such departments or agencies, responsibilities in connection with the 
effectuation of the purposes of Title IX and these Title IX regulations 
(other than responsibility for review as provided in Sec.  17.625(e)), 
including the achievements of effective coordination and maximum 
uniformity within the Department and within the Executive Branch of the 
Government in the application of Title IX and these Title IX regulations 
to similar programs and in similar situations. Any action taken, 
determination made, or requirement imposed by an official of another 
department or agency acting pursuant to an assignment of responsibility 
under this section shall have the same effect as though such action had 
been taken by the designated official of this Department.



PART 19_NONDISCRIMINATION IN MATTERS PERTAINING TO FAITH-BASED ORGANIZATIONS--Table of Contents



Sec.
19.1 Purpose.
19.2 Definitions.
19.3 Equal ability for faith-based organizations to seek and receive 
          financial assistance through DHS social service programs.
19.4 Explicitly religious activities.
19.5 Nondiscrimination requirements.
19.6 Beneficiary protections: Written notice.
19.7 Beneficiary protections: Referral requirements.
19.8 Independence of faith-based organizations.
19.9 Exemption from Title VII employment discrimination requirements.
19.10 Commingling of Federal assistance.

Appendix A to Part 19--Model Written Notice to Beneficiaries

    Authority: 5 U.S.C. 301; Pub. L. 107-296; E.O. 13279, 67 FR 77141; 
E.O. 13403, 71 FR 28543; E.O. 13498, 74 FR 6533; and E.O. 13559, 75 FR 
71319.

    Source: 81 FR 19410, Apr. 4, 2016, unless otherwise noted.

[[Page 182]]



Sec.  19.1  Purpose.

    It is the policy of the Department of Homeland Security (DHS) to 
ensure the equal treatment of faith-based organizations in social 
service programs administered or supported by DHS or its component 
agencies, enabling those organizations to participate in providing 
important social services to beneficiaries. The equal treatment policies 
and requirements contained in this part are generally applicable to 
faith-based organizations participating or seeking to participate in any 
such programs. More specific policies and requirements regarding the 
participation of faith-based organizations in individual programs may be 
provided in the statutes, regulations, or guidance governing those 
programs, such as regulations in title 44 of the Code of Federal 
Regulations. DHS or its components may issue policy guidance and 
reference materials at a future time with respect to the applicability 
of this policy and this part to particular programs.



Sec.  19.2  Definitions.

    For purposes of this part:
    Beneficiary means an individual recipient of goods or services 
provided as part of a social service program specifically supported by 
Federal financial assistance. ``Beneficiary'' does not mean an 
individual who may incidentally benefit from Federal financial 
assistance provided to a State, local, or Tribal government, or a 
private nonprofit organization. Except where expressly noted or where 
inapplicable, ``beneficiary'' includes a prospective beneficiary.
    Direct Federal financial assistance or Federal financial assistance 
provided directly means that the government or an intermediary (e.g., 
State, local, or Tribal government, or nongovernmental organization) 
selects the provider and either purchases services from that provider 
(e.g., via a contract) or awards funds to that provider to carry out a 
service (e.g., through a grant or cooperative agreement). In general, 
Federal financial assistance shall be treated as direct, unless it meets 
the definition of ``indirect Federal financial assistance'' or ``Federal 
financial assistance provided indirectly''.
    Explicitly religious activities include activities that involve 
overt religious content such as worship, religious instruction, or 
proselytization. An activity is not explicitly religious merely because 
it is motivated by religious faith.
    Financial assistance means assistance that non-Federal entities 
receive or administer in the form of grants, sub-grants, contracts, 
subcontracts, prime awards, loans, loan guarantees, property, 
cooperative agreements, food, direct appropriations, or other 
assistance, including materiel for emergency response and incident 
management. Financial assistance includes assistance provided by DHS, 
its component organizations, regional offices, and DHS financial 
assistance administered by intermediaries such as State, local, and 
Tribal governments, such as formula or block grants.
    Indirect Federal financial assistance or Federal financial 
assistance provided indirectly means that the choice of the service 
provider is placed in the hands of the beneficiary, and the cost of that 
service is paid through a voucher, certificate, or other similar means 
of government-funded payment. For purposes of this part, sub-grant 
recipients that receive Federal financial assistance through State-
administered programs are not considered recipients of ``indirect 
Federal financial assistance.'' Federal financial assistance provided to 
an organization is considered ``indirect'' within the meaning of the 
Establishment Clause of the First Amendment to the U.S. Constitution 
when:
    (1) The government program through which the beneficiary receives 
the voucher, certificate, or other similar means of government-funded 
payment is neutral toward religion;
    (2) The organization receives the assistance as a result of a 
decision of the beneficiary, not a decision of the government; and
    (3) The beneficiary has at least one adequate secular option for the 
use of the voucher, certificate, or other similar means of government-
funded payment.
    Intermediary means an entity, including a non-governmental 
organization,

[[Page 183]]

acting under a contract, grant, or other agreement with the Federal 
government or with a State or local government, that accepts Federal 
financial assistance and distributes that assistance to other 
organizations that, in turn, provide government-funded social services. 
If an intermediary, acting under a contract, grant, or other agreement 
with the Federal government or with a State or local government that is 
administering a program supported by Federal financial assistance, is 
given the authority under the contract, grant, or agreement to select 
non-governmental organizations to provide services supported by the 
Federal government, the intermediary must ensure compliance with the 
provisions of Executive Order 13559 and any implementing rules or 
guidance by the recipient of a contract, grant or agreement. If the 
intermediary is a non-governmental organization, it retains all other 
rights of a non-governmental organization under the program's statutory 
and regulatory provisions.
    Social service program means a program that is administered by the 
Federal government, or by a State or local government using Federal 
financial assistance, and that provides services directed at reducing 
poverty, improving opportunities for low-income children, revitalizing 
low-income communities, empowering low-income families and low-income 
individuals to become self-sufficient, or otherwise helping people in 
need. Such programs include, but are not limited to, the following:
    (1) Child care services, protective services for children and 
adults, services for children and adults in foster care, adoption 
services, services related to the management and maintenance of the 
home, day care services for adults, and services to meet the special 
needs of children, older individuals, and individuals with disabilities 
(including physical, mental, or emotional disabilities);
    (2) Transportation services;
    (3) Job training and related services, and employment services;
    (4) Information, referral, and counseling services;
    (5) The preparation and delivery of meals and services related to 
soup kitchens or food banks;
    (6) Health support services;
    (7) Literacy and mentoring programs;
    (8) Services for the prevention and treatment of juvenile 
delinquency and substance abuse, services for the prevention of crime 
and the provision of assistance to the victims and the families of 
criminal offenders, and services related to intervention in, and 
prevention of, domestic violence; and
    (9) Services related to the provision of assistance for housing 
under Federal law.



Sec.  19.3  Equal ability for faith-based organizations to seek and receive financial assistance through DHS social service programs.

    (a) Faith-based organizations are eligible, on the same basis as any 
other organization, to seek and receive direct financial assistance from 
DHS for social service programs or to participate in social service 
programs administered or financed by DHS.
    (b) Neither DHS, nor a State or local government, nor any other 
entity that administers any social service program supported by direct 
financial assistance from DHS, shall discriminate for or against an 
organization on the basis of the organization's religious motivation, 
character, or affiliation.
    (c) Decisions about awards of Federal financial assistance must be 
free from political interference or even the appearance of such 
interference and must be made on the basis of merit, not on the basis of 
religion or religious belief or lack thereof, or on the basis of 
religious or political affiliation.
    (d) Nothing in this part shall be construed to preclude DHS or any 
of its components from accommodating religious organizations and persons 
to the fullest extent consistent with the Constitution and laws of the 
United States.
    (e) All organizations that participate in DHS social service 
programs, including religious organizations, must carry out eligible 
activities in accordance with all program requirements and other 
applicable requirements governing the conduct of DHS-supported 
activities, including those prohibiting the use of direct financial 
assistance from DHS to engage in explicitly religious activities. No 
grant document,

[[Page 184]]

agreement, covenant, memorandum of understanding, or policy issued by 
DHS or an intermediary in administering financial assistance from DHS 
shall disqualify a religious organization from participating in DHS's 
social service programs because such organization is motivated or 
influenced by religious faith to provide social services or because of 
its religious character or affiliation.



Sec.  19.4  Explicitly religious activities.

    (a) Organizations that receive direct financial assistance from DHS 
to participate in or administer any social service program may not use 
direct Federal financial assistance that it receives (including through 
a prime or sub-award) to support or engage in any explicitly religious 
activities (including activities that involve overt religious content 
such as worship, religious instruction, or proselytization) or in any 
other manner prohibited by law.
    (b) Organizations receiving direct financial assistance from DHS for 
social service programs are free to engage in explicitly religious 
activities, but such activities must be
    (1) Clearly distinct from programs specifically supported by direct 
federal assistance;
    (2) Offered separately, in time or location, from the programs, 
activities, or services specifically supported by direct DHS financial 
assistance pursuant to DHS social service programs; and
    (3) Voluntary for the beneficiaries of the programs, activities, or 
services specifically supported by direct DHS financial assistance 
pursuant to DHS social service programs.
    (c) All organizations that participate in DHS social service 
programs, including religious organizations, must carry out eligible 
activities in accordance with all program requirements and other 
applicable requirements governing the conduct of DHS-supported 
activities, including those prohibiting the use of direct financial 
assistance from DHS to engage in explicitly religious activities. No 
grant document, agreement, covenant, memorandum of understanding, or 
policy issued by DHS or a State or local government in administering 
financial assistance from DHS shall disqualify a religious organization 
from participating in DHS's social service programs because such 
organization is motivated or influenced by religious faith to provide 
social services or because of its religious character or affiliation.
    (d) The use of indirect Federal financial assistance is not subject 
to the restriction in paragraphs (a), (b), and (c) of this section.
    (e) Nothing in this part restricts DHS's authority under applicable 
federal law to fund activities, such as the provision of chaplaincy 
services, that can be directly funded by the Government consistent with 
the Establishment Clause.



Sec.  19.5  Nondiscrimination requirements.

    An organization that receives financial assistance from DHS for a 
social service program shall not, in providing services or in outreach 
activities related to such services, favor or discriminate against a 
beneficiary of said program or activity on the basis of religion or 
religious belief, a refusal to hold a religious belief, or a refusal to 
attend or participate in a religious practice. Organizations that favor 
or discriminate against a beneficiary will be subject to applicable 
sanctions and penalties, as established by the requirements of the 
particular DHS social service program or activity. However, an 
organization that participates in a program funded by indirect financial 
assistance need not modify its program activities to accommodate a 
beneficiary who chooses to expend the indirect aid on the organization's 
program.



Sec.  19.6  Beneficiary protections: Written notice.

    (a) Faith-based or religious organizations providing social services 
to beneficiaries under a DHS program supported by direct Federal 
financial assistance must give written notice to beneficiaries of 
certain protections. Such notice may be given in the form set forth in 
appendix A of this part. This notice must state that:
    (1) The organization may not discriminate against beneficiaries on 
the basis of religion or religious belief, a

[[Page 185]]

refusal to hold a religious belief, or a refusal to attend or 
participate in a religious practice;
    (2) The organization may not require beneficiaries to attend or 
participate in any explicitly religious activities that are offered by 
the organization, and any participation by beneficiaries in such 
activities must be purely voluntary;
    (3) The organization must separate in time or location any privately 
funded explicitly religious activities from activities supported by 
direct Federal financial assistance;
    (4) If a beneficiary objects to the religious character of the 
organization, the organization will undertake reasonable efforts to 
identify and refer the beneficiary to an alternative provider to which 
the beneficiary has no objection; and
    (5) Beneficiaries may report an organization's violations of these 
protections, including any denials of services or benefits by an 
organization, by contacting or filing a complaint with the DHS Office 
for Civil Rights and Civil Liberties, or to any intermediary awarding 
entity.
    (b) This written notice must be given to beneficiaries prior to the 
time they enroll in the program or receive services from such programs. 
When the nature of the service provided or exigent circumstances make it 
impracticable to provide such written notice in advance of the actual 
service, service providers must advise beneficiaries of their 
protections at the earliest available opportunity.



Sec.  19.7  Beneficiary protections: Referral requirements.

    (a) If a beneficiary of a social service program covered under Sec.  
19.6 objects to the religious character of an organization that provides 
services under the program, that organization must promptly undertake 
reasonable efforts to identify and refer the beneficiary to an 
alternative provider to which the beneficiary has no objection.
    (b) A referral may be made to another religiously affiliated 
provider, if the beneficiary has no objection to that provider. But if 
the beneficiary requests a secular provider, and a secular provider is 
available, then a referral must be made to that provider.
    (c) Except for services provided by telephone, internet, or similar 
means, the referral must be to an alternative provider that is in 
reasonable geographic proximity to the organization making the referral 
and that offers services that are similar in substance and quality to 
those offered by the organization. The alternative provider also must 
have the capacity to accept additional clients.
    (d) When the organization makes a referral to an alternative 
provider, it shall keep a record of that referral. If the organization 
determines that it is unable to identify an alternative provider, the 
organization shall both keep a record and promptly notify either DHS or 
an intermediary awarding entity. If the organization is unable to 
identify an alternative provider, DHS or the intermediary shall 
determine whether there is any other suitable alternative provider to 
which the beneficiary may be referred. An intermediary that receives a 
request for assistance in identifying an alternative provider shall 
notify, and may request assistance from, DHS.



Sec.  19.8  Independence of faith-based organizations.

    (a) A faith-based organization that applies for, or participates in, 
a social service program supported with Federal financial assistance may 
retain its independence and may continue to carry out its mission, 
including the definition, development, practice, and expression of its 
religious beliefs, provided that it does not use direct Federal 
financial assistance contrary to Sec.  19.4.
    (b) Faith-based organizations may use space in their facilities to 
provide social services using financial assistance from DHS without 
removing or concealing religious articles, texts, art, or symbols.
    (c) A faith-based organization using financial assistance from DHS 
for social service programs retains its authority over internal 
governance, and may also retain religious terms in its organization's 
name, select its board

[[Page 186]]

members on a religious basis, and include religious references in its 
organization's mission statements and other governing documents.



Sec.  19.9  Exemption from Title VII employment discrimination requirements.

    (a) A faith-based organization's exemption, set forth in section 
702(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-1), from the 
Federal prohibition on employment discrimination on the basis of 
religion is not forfeited when the organization seeks or receives 
financial assistance from DHS for a social service program or otherwise 
participates in a DHS program.
    (b) Where a DHS program contains independent statutory or regulatory 
provisions that impose nondiscrimination requirements on all grantees, 
those provisions are not waived or mitigated by this part. Accordingly, 
grantees should consult with the appropriate DHS program office to 
determine the scope of any applicable requirements.



Sec.  19.10  Commingling of Federal assistance.

    (a) If a State, local, or Tribal government voluntarily contributes 
its own funds to supplement Federally supported activities, the State, 
local, or Tribal government has the option to segregate the Federal 
assistance or commingle it.
    (b) If the State, local, or Tribal government chooses to commingle 
its own and Federal funds, the requirements of this part apply to all of 
the commingled funds.
    (c) If a State, local, or Tribal government is required to 
contribute matching funds to supplement a Federally supported activity, 
the matching funds are considered commingled with the Federal assistance 
and therefore subject to the requirements of this part.



    Sec. Appendix A to Part 19--Model Written Notice to Beneficiaries

                      NOTICE OF BENEFICIARY RIGHTS

    Name of Organization:
    Name of Program:
    Contact Information for Program Staff (name, phone number, and email 
address, if appropriate):
________________________________________________________________________
    Because this program is supported in whole or in part by direct 
financial assistance from the Federal Government, we are required to let 
you know that--
     We may not discriminate against you on the basis 
of religion or religious belief, your refusal to hold a religious 
belief, or your refusal to attend or participate in a religious 
practice;
     We may not require you to attend or participate 
in any explicitly religious activities that are offered by us, and any 
participation by you in these activities must be purely voluntary;
     We must separate in time or location any 
privately funded explicitly religious activities from activities 
supported with direct Federal financial assistance under this program;
     If you object to the religious character of our 
organization, we must make reasonable efforts to identify and refer you 
to an alternative provider to which you have no objection; however, we 
cannot guarantee that in every instance, an alternative provider will be 
available; and
     You may report violations of these protections, 
including any denials of services or benefits, by contacting or filing a 
written complaint with the Department of Homeland Security, Office for 
Civil Rights and Civil Liberties:
    E-mail: [email protected]
    Fax: 202-401-4708.
    U.S. Mail: U.S. Department of Homeland Security Office for Civil 
Rights and Civil Liberties, Compliance Branch, 245 Murray Lane SW., 
Building 410, Mail Stop 0190, Washington, DC 20528.
    {Where the program involves an intermediary, the recipient or 
intermediary should add where feasible:
    You may also report violations of these protections, including any 
denials of services or benefits, to:
    [Name and contact information for the intermediary]{time} 
    We must give you this written notice before you enroll in our 
program or receive services from the program.
________________________________________________________________________

                      BENEFICIARY REFERRAL REQUEST

    If you object to receiving services from us based on the religious 
character of our organization, please complete this form and return it 
to the program contact identified above. If you object, we will make 
reasonable efforts to refer you to another service provider. With your 
consent, we will follow up with you or the organization to which you 
were referred to determine whether you contacted that organization.
    Please check if applicable:
( ) I want to be referred to another service provider.

[[Page 187]]

    If you checked above that you wish to be referred to another service 
provider, please check one of the following:
( ) Please follow up with me.
Name:
Best way to reach me (phone/address/email):
( ) Please follow up with the service provider to which I was referred.
( ) Please do not follow up.
--End of Form--



 PART 21_NONDISCRIMINATION ON THE BASIS OF RACE, COLOR, OR NATIONAL ORIGIN IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM THE DEPARTMENT 
OF HOMELAND SECURITY--Table of Contents



Sec.
21.1 Purpose.
21.3 Application.
21.4 Definitions.
21.5 Discrimination prohibited.
21.7 Assurances required.
21.9 Compliance information.
21.11 Conduct of investigations.
21.13 Procedure for effecting compliance.
21.15 Hearings.
21.17 Decisions and notices.
21.19 Judicial review.
21.21 Effect on other regulations, forms, and instructions.

Appendix A to Part 21--Activities to Which This Part Applies
Appendix B to Part 21--Activities to Which This Part Applies When a 
          Primary Objective of the Federal Financial Assistance Is To 
          Provide Employment

    Authority: 5 U.S.C. 310, 42 U.S.C. 2000d-2000d-7.

    Source: 68 FR 10904, Mar. 6, 2003, unless otherwise noted.



Sec.  21.1  Purpose.

    The purpose of this part is to effectuate the provisions of title VI 
of the Civil Rights Act of 1964 (the Act) to the end that no person in 
the United States shall, on the grounds of race, color, or national 
origin, be excluded from participation in, be denied the benefits of, or 
be otherwise subjected to discrimination under any program or activity 
receiving Federal financial assistance from the Department of Homeland 
Security. The provisions established by this part shall be effective for 
all components of the Department, including all Department components 
that are transferred to the Department, except to the extent that a 
Department component already has existing title VI regulations.



Sec.  21.3  Application.

    (a) This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the Department, 
including the types of Federal financial assistance listed in appendix A 
to this part. It also applies to money paid, property transferred, or 
other Federal financial assistance extended after the effective date of 
this part pursuant to an application approved before that effective 
date. This part does not apply to:
    (1) Any Federal financial assistance by way of insurance or guaranty 
contracts;
    (2) Money paid, property transferred, or other assistance extended 
before the effective date of this part, except where such assistance was 
subject to the title VI regulations of any agency whose responsibilities 
are now exercised by this Department;
    (3) Any assistance to any individual who is the ultimate 
beneficiary; or
    (4) Any employment practice, under any such program, of any 
employer, employment agency, or labor organization, except to the extent 
described in Sec.  21.5(c). The fact that a type of Federal financial 
assistance is not listed in appendix A to this part shall not mean, if 
title VI of the Act is otherwise applicable, that a program is not 
covered. Other types of Federal financial assistance under statutes now 
in force or hereinafter enacted may be added to appendix A to this part.
    (b) In any program receiving Federal financial assistance in the 
form, or for the acquisition, of real property or an interest in real 
property, to the extent that rights to space on, over, or under any such 
property are included as part of the program receiving that assistance, 
the nondiscrimination requirement of this part shall extend to any 
facility located wholly or in part in that space.



Sec.  21.4  Definitions.

    Unless the context requires otherwise, as used in this part:
    (a) Applicant means a person who submits an application, request, or 
plan

[[Page 188]]

required to be approved by the Secretary, or designee thereof, or by a 
primary recipient, as a condition to eligibility for Federal financial 
assistance, and application means such an application, request, or plan.
    (b) Facility includes all or any part of structures, equipment, or 
other real or personal property or interests therein, and the provision 
of facilities includes the construction, expansion, renovation, 
remodeling, alteration or acquisition of facilities.
    (c) Federal financial assistance includes:
    (1) Grants and loans of Federal funds;
    (2) The grant or donation of Federal property and interests in 
property;
    (3) The detail of Federal personnel;
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient; and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (d) Primary recipient means any recipient that is authorized or 
required to extend Federal financial assistance to another recipient.
    (e) Program or activity and program mean all of the operations of 
any entity described in paragraphs (e)(1) through (4) of this section, 
any part of which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 8801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (e)(1), (2), or (3) of this section.
    (f) Recipient may mean any State, territory, possession, the 
District of Columbia, or the Commonwealth of Puerto Rico, or any 
political subdivision thereof, or instrumentality thereof, any public or 
private agency, institution, or organization, or other entity, or any 
individual, in any State, territory, possession, the District of 
Columbia, or the Commonwealth of Puerto Rico, to whom Federal financial 
assistance is extended, directly or through another recipient, including 
any successor, assignee, or transferee thereof, but such term does not 
include any ultimate beneficiary.
    (g) Secretary means the Secretary of the Department of Homeland 
Security or, except in Sec.  21.17(e), any delegatee of the Secretary.



Sec.  21.5  Discrimination prohibited.

    (a) General. No person in the United States shall, on the grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under, any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this part applies may not, directly or

[[Page 189]]

through contractual or other arrangements, on the grounds of race, 
color, or national origin:
    (i) Deny a person any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to a 
person which is different, or is provided in a different manner, from 
that provided to others under the program;
    (iii) Subject a person to segregation or separate treatment in any 
matter related to his receipt of any service, financial aid, or other 
benefit under the program;
    (iv) Restrict a person in any way in the enjoyment of any advantage 
or privilege enjoyed by others receiving any service, financial aid, or 
other benefit under the program;
    (v) Treat a person differently from others in determining whether he 
satisfies any admission, enrollment, quota, eligibility, membership, or 
other requirement or condition which persons must meet in order to be 
provided any service, financial aid, or other benefit provided under the 
program;
    (vi) Deny a person an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program; or
    (vii) Deny a person the opportunity to participate as a member of a 
planning, advisory, or similar body which is an integral part of the 
program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of person to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of persons to be 
afforded an opportunity to participate in any such program; may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting persons 
to discrimination because of their race, color, or national origin or 
have the effect of defeating or substantially impairing accomplishment 
of the objectives of the program with respect to individuals of a 
particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding persons from, denying them the benefits of, or subjecting them 
to discrimination under any program to which this regulation applies, on 
the grounds of race, color, or national origin; or with the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of the Act or this part.
    (4) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
include any service, financial aid, or other benefit provided in or 
through a facility provided with the aid of Federal financial 
assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (6) This part does not prohibit the consideration of race, color, or 
national origin if the purpose and effect are to remove or overcome the 
consequences of practices or impediments which have restricted the 
availability of, or participation in, the program or activity receiving 
Federal financial assistance, on the grounds of race, color, or national 
origin. Where prior discriminatory practice or usage tends, on the 
grounds of race, color, or national origin to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program or activity to which this part applies, 
the applicant or recipient must take affirmative action to remove or 
overcome the effects of the prior discriminatory practice or usage. Even 
in the absence of prior discriminatory practice or usage, a recipient in 
administering a program or activity to which this part applies, may take 
affirmative action to assure that no person is excluded from 
participation in or denied the benefits of the program or activity on 
the grounds of race, color, or national origin.

[[Page 190]]

    (c) Employment practices. (1) Where a primary objective of the 
Federal financial assistance to a program to which this part applies is 
to provide employment, a recipient subject to this part shall not, 
directly or through contractual or other arrangements, subject a person 
to discrimination on the ground of race, color, or national origin in 
its employment practices under such program (including recruitment or 
recruitment advertising, hiring, firing, upgrading, promotion, demotion, 
transfer, layoff, termination, rates of pay or other forms of 
compensation or benefits, selection for training or apprenticeship, and 
use of facilities). Such recipient shall take affirmative action to 
insure that applicants are employed, and employees are treated during 
employment, without regard to their race, color, or national origin. The 
requirements applicable to construction employment under any such 
program shall be those specified in or pursuant to Part III of Executive 
Order 11246 or any Executive order which supersedes it.
    (2) Federal financial assistance to programs under laws funded or 
administered by the Department which have as a primary objective the 
providing of employment include those set forth in appendix B to this 
part.
    (3) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the grounds of 
race, color, or national origin, to exclude individuals from 
participation in, deny them the benefits of, or subject them to 
discrimination under any program to which this regulation applies, the 
provisions of paragraph (c)(1) of this section shall apply to the 
employment practices of the recipient or other persons subject to the 
regulation, to the extent necessary to assure equality of opportunity 
to, and nondiscriminatory treatment of, beneficiaries.
    (d) Facility location or site. A recipient may not make a selection 
of a site or location of a facility if the purpose of that selection, or 
its effect when made, is to exclude individuals from participation in, 
to deny them the benefits of, or to subject them to discrimination under 
any program or activity to which this rule applies, on the grounds of 
race, color, or national origin; or if the purpose is to, or its effect 
when made will substantially impair the accomplishment of the objectives 
of this part.



Sec.  21.7  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, except an application to which paragraph (b) 
of this section applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by, an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this part. Every award of Federal 
financial assistance shall require the submission of such an assurance. 
In the case where the Federal financial assistance is to provide or is 
in the form of personal property, or real property or interest therein 
or structures thereon, the assurance shall obligate the recipient, or, 
in the case of a subsequent transfer, the transferee, for the period 
during which the property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits, or for as long as the 
recipient retains ownership or possession of the property, whichever is 
longer. In all other cases the assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended to 
the program. The Secretary shall specify the form of the foregoing 
assurances, and the extent to which like assurances will be required of 
subgrantees, contractors and subcontractors, transferees, successors in 
interest, and other participants. Any such assurance shall include 
provisions which give the United States a right to seek its judicial 
enforcement.
    (2) In the case where Federal financial assistance is provided in 
the form

[[Page 191]]

of a transfer of real property, structures, or improvements thereon, or 
interest therein, from the Federal Government, the instrument effecting 
or recording the transfer shall contain a covenant running with the land 
assuring nondiscrimination for the period during which the real property 
is used for a purpose for which the Federal financial assistance is 
extended or for another purpose involving the provision of similar 
services or benefits. Where no transfer of property or interest therein 
from the Federal Government is involved, but property is acquired or 
improved with Federal financial assistance, the recipient shall agree to 
include such covenant in any subsequent transfer of such property. When 
the property is obtained from the Federal Government, such covenant may 
also include a condition coupled with a right to be reserved by the 
Department to revert title to the property in the event of a breach of 
the covenant where, in the discretion of the Secretary, such a condition 
and right of reverter is appropriate to the statute under which the real 
property is obtained and to the nature of the grant and the grantee. In 
such event if a transferee of real property proposes to mortgage or 
otherwise encumber the real property as security for financing 
construction of new, or improvement of existing, facilities on such 
property for the purposes for which the property was transferred, the 
Secretary may agree, upon request of the transferee and if necessary to 
accomplish such financing, and upon such conditions as he deems 
appropriate, to subordinate such right of reversion to the lien of such 
mortgage or other encumbrance.
    (b) Continuing Federal financial assistance. Every application by a 
State or a State agency for continuing Federal financial assistance to 
which this part applies (including the types of Federal financial 
assistance listed in appendix A to this part) shall as a condition to 
its approval and the extension of any Federal financial assistance 
pursuant to the application:
    (1) Contain or be accompanied by a statement that the program is 
(or, in the case of a new program, will be) conducted in compliance with 
all requirements imposed by or pursuant to this part; and
    (2) Provide or be accompanied by provision for such methods of 
administration for the program as are found by the Secretary to give 
reasonable guarantee that the applicant and all recipients of Federal 
financial assistance under such program will comply with all 
requirements imposed by or pursuant to this part.
    (c) Assurance from institutions. (1) In the case of any application 
for Federal financial assistance to an institution of higher education 
(including assistance for construction, for research, for special 
training projects, for student loans or for any other purpose), the 
assurance required by this section shall extend to admission practices 
and to all other practices relating to the treatment of students.
    (2) The assurance required with respect to an institution of higher 
education, hospital, or any other institution, insofar as the assurance 
relates to the institution's practices with respect to admission or 
other treatment of individuals as students, patients, or clients of the 
institution or to the opportunity to participate in the provision of 
services or other benefits to such individuals, shall be applicable to 
the entire institution.



Sec.  21.9  Compliance information.

    (a) Cooperation and assistance. The Secretary shall to the fullest 
extent practicable seek the cooperation of recipients in obtaining 
compliance with this part and shall provide assistance and guidance to 
recipients to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the Secretary timely, complete, and accurate compliance 
reports at such times, and in such form and containing such information, 
as the Secretary may determine to be necessary to enable him to 
ascertain whether the recipient has complied or is complying with this 
part. In the case in which a primary recipient extends Federal financial 
assistance to any other recipient, such other recipient shall also 
submit such compliance reports to the primary recipient as may be 
necessary to

[[Page 192]]

enable the primary recipient to carry out its obligations under this 
part. In general, recipients should have available for the Secretary 
racial and ethnic data showing the extent to which members of minority 
groups are beneficiaries of programs receiving Federal financial 
assistance.
    (c) Access to sources of information. Each recipient shall permit 
access by the Secretary during normal business hours to such of its 
books, records, accounts, and other sources of information, and its 
facilities as may be pertinent to ascertain compliance with this part. 
Where any information required of a recipient is in the exclusive 
possession of any other agency, institution, or person and this agency, 
institution, or person fails or refuses to furnish this information, the 
recipient shall so certify in its report and shall set forth what 
efforts it has made to obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the Secretary finds necessary to 
apprise such persons of the protections against discrimination assured 
them by the Act and this part.



Sec.  21.11  Conduct of investigations.

    (a) Periodic compliance reviews. The Secretary shall from time to 
time review the practices of recipients to determine whether they are 
complying with this part.
    (b) Complaints. Any person who believes that he or she, or any 
specific class of persons, has been subjected to discrimination 
prohibited by this part may by himself or herself, or by a 
representative, file with the Secretary a written complaint. A complaint 
must be filed not later than 180 days after the date of the alleged 
discrimination, unless the time for filing is extended by the Secretary.
    (c) Investigations. The Secretary will make a prompt investigation 
whenever a compliance review, report, complaint, or any other 
information indicates a possible failure to comply with this part. The 
investigation will include, where appropriate, a review of the pertinent 
practices and policies of the recipient, the circumstances under which 
the possible noncompliance with this part occurred, and other factors 
relevant to a determination as to whether the recipient has failed to 
comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the Secretary will so inform the recipient and the matter will be 
resolved by informal means whenever possible. If it has been determined 
that the matter cannot be resolved by informal means, action will be 
taken as provided for in Sec.  21.13.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the Secretary will so inform the 
recipient and the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.



Sec.  21.13  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to:

[[Page 193]]

    (1) A referral to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States (including other titles 
of the Act), or any assurance or other contractual undertaking; and
    (2) Any applicable proceeding under State or local law.
    (b) Noncompliance with Sec.  21.7. If an applicant fails or refuses 
to furnish an assurance required under Sec.  21.7 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section, Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The Department shall 
not be required to provide assistance in such a case during the pendency 
of the administrative proceedings under such paragraph. However, subject 
to Sec.  21.21, the Department shall continue assistance during the 
pendency of such proceedings where such assistance is due and payable 
pursuant to an application approved prior to the effective date of this 
part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. (1) No order suspending, terminating, or refusing 
to grant or continue Federal financial assistance shall become effective 
until:
    (i) The Secretary has advised the applicant or recipient of his 
failure to comply and has determined that compliance cannot be secured 
by voluntary means;
    (ii) There has been an express finding on the record, after 
opportunity for hearing, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part;
    (iii) The action has been approved by the Secretary pursuant to 
Sec.  21.17(e); and
    (iv) The expiration of 30 days after the Secretary has filed with 
the committee of the House and the committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action.
    (2) Any action to suspend or terminate or to refuse to grant or to 
continue Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance 
with title VI of the Act by any other means authorized by law shall be 
taken by this Department until:
    (1) The Secretary has determined that compliance cannot be secured 
by voluntary means;
    (2) The recipient or other person has been notified of its failure 
to comply and of the action to be taken to effect compliance; and
    (3) The expiration of at least 10 days from the mailing of such 
notice to the recipient or other person. During this period of at least 
10 days, additional efforts shall be made to persuade the recipient or 
other person to comply with the regulation and to take such corrective 
action as may be appropriate.



Sec.  21.15  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec.  21.13(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and 
either:
    (1) Fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the Secretary 
that the matter be scheduled for hearing; or
    (2) Advise the applicant or recipient that the matter in question 
has been set down for hearing at a stated place and time. The time and 
place so fixed shall be reasonable and shall be subject to change for 
cause. The complainant, if any, shall be advised of the time and place 
of the hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this paragraph or to 
appear at a

[[Page 194]]

hearing for which a date has been set shall be deemed to be a waiver of 
the right to a hearing under section 602 of the Act and Sec.  21.13(c) 
and consent to the making of a decision on the basis of such information 
as is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department in Washington, DC, at a time fixed by the Secretary 
unless he determines that the convenience of the applicant or recipient 
or of the Department requires that another place be selected. Hearings 
shall be held before the Secretary, or at his discretion, before a 
hearing examiner appointed in accordance with section 3105 of title 5, 
United States Code, or detailed under section 3344 of title 5, United 
States Code.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
sections 554 through 557 of title 5, United States Code, and in 
accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both the Department 
and the applicant or recipient shall be entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting the hearing at the outset of or 
during the hearing.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant to this part, but rules or principles designed to assure 
production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal statutes, authorities, or other 
means by which Federal financial assistance is extended and to which 
this part applies, or noncompliance with this part and the regulations 
of one or more other Federal departments or agencies issued under title 
VI of the Act, the Secretary may, by agreement with such other 
departments or agencies, where applicable, provide for the conduct of 
consolidated or joint hearings, and for the application to such hearings 
of rules or procedures not inconsistent with this part. Final decisions 
in such cases, insofar as this regulation is concerned, shall be made in 
accordance with Sec.  21.17.



Sec.  21.17  Decisions and notices.

    (a) Procedure on decisions by hearing examiner. If the hearing is 
held by a hearing examiner, the hearing examiner shall either make an 
initial decision, if so authorized, or certify the entire record 
including his recommended findings and proposed decision to the 
Secretary for a final decision, and a copy of such initial decision or 
certification shall be mailed to the applicant or recipient. Where the 
initial decision is made by the hearing examiner the applicant or 
recipient may, within 30 days after the mailing of such notice of 
initial decision, file with the Secretary his exceptions to the initial 
decision, with his reasons therefor. In the absence of exceptions, the 
Secretary may, on his own motion, within 45 days after the initial 
decision, serve on the applicant or recipient a notice that he will 
review the decision. Upon the filing of such exceptions or of notice of 
review, the Secretary shall review the initial decision and issue his 
own decision thereon including the reasons therefor. In the absence of 
either exceptions or a

[[Page 195]]

notice of review the initial decision shall, subject to paragraph (e) of 
this section, constitute the final decision of the Secretary.
    (b) Decisions on record or review by the Secretary. Whenever a 
record is certified to the Secretary for decision or he reviews the 
decision of a hearing examiner pursuant to paragraph (a) of this 
section, or whenever the Secretary conducts the hearing, the applicant 
or recipient shall be given reasonable opportunity to file with him 
briefs or other written statements of its contentions, and a written 
copy of the final decision of the Secretary shall be sent to the 
applicant or recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec.  21.15, a decision shall be made by 
the Secretary on the record and a written copy of such decision shall be 
sent to the applicant or recipient, and to the complainant, if any.
    (d) Rulings required. Each decision of a hearing examiner or the 
Secretary shall set forth his ruling on each finding, conclusion, or 
exception presented, and shall identify the requirement or requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Approval by Secretary. Any final decision by an official of the 
Department, other than the Secretary personally, which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this part or the Act, shall promptly be transmitted to 
the Secretary personally, who may approve such decision, may vacate it, 
or remit or mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance to which this regulation applies will thereafter be extended 
to the applicant or recipient determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the Secretary that it 
will fully comply with this part.
    (g) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this part and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the Secretary to restore fully its eligibility to receive 
Federal financial assistance. Any such request shall be supported by 
information showing that the applicant or recipient has met the 
requirements of paragraph (g)(1) of this section. If the Secretary 
determines that those requirements have been satisfied, he shall restore 
such eligibility.
    (3) If the Secretary denies any such request, the applicant or 
recipient may submit a request for a hearing in writing, specifying why 
it believes such official to have been in error. It shall thereupon be 
given an expeditious hearing, with a decision on the record in 
accordance with rules or procedures issued by the Secretary. The 
applicant or recipient will be restored to such eligibility if it proves 
at such a hearing that it satisfied the requirements of paragraph (g)(1) 
of this section. While proceedings under this paragraph are pending, the 
sanctions imposed by the order issued under paragraph (f) of this 
section shall remain in effect.



Sec.  21.19  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.

[[Page 196]]



Sec.  21.21  Effect on other regulations, forms, and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions issued before the effective date of this part by any officer 
of the Department which impose requirements designed to prohibit any 
discrimination against individuals on the grounds of race, color, or 
national origin under any program to which this part applies, and which 
authorize the suspension or termination of or refusal to grant or to 
continue Federal financial assistance to any applicant for a recipient 
of such assistance for failure to comply with such requirements, are 
hereby superseded to the extent that such discrimination is prohibited 
by this part, except that nothing in this part may be considered to 
relieve any person of any obligation assumed or imposed under any such 
superseded regulation, order, instruction, or like direction before the 
effective date of this part. Nothing in this part, however, supersedes 
any of the following (including future amendments thereof):
    (1) Executive Order 11246 (3 CFR, 1965 Supp., p. 167) and 
regulations issued thereunder; or
    (2) Any other orders, regulations, or instructions, insofar as such 
orders, regulations, or instructions prohibit discrimination on the 
ground of race, color, or national origin in any program or situation to 
which this part is inapplicable, or prohibit discrimination on any other 
ground.
    (b) Forms and instructions. The Secretary shall issue and promptly 
make available to all interested persons forms and detailed instructions 
and procedures for effectuating this part as applied to programs to 
which this part applies and for which he is responsible.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to officials of the Department, or to officials of other 
departments or agencies of the Government with the consent of such 
departments or agencies, responsibilities in connection with the 
effectuation of the purposes of title VI of the Act and this part (other 
than responsibility for final decision as provided in Sec.  21.17), 
including the achievement of effective coordination and maximum 
uniformity within the Department and within the Executive Branch of the 
Government in the application of title VI and this part to similar 
programs and in similar situations. Any action taken, determination made 
or requirement imposed by an official of another department or agency 
acting pursuant to an assignment of responsibility under this paragraph 
shall have the same effect as though such action had been taken by the 
Secretary of this Department.



    Sec. Appendix A to Part 21--Activities to Which This Part Applies

    Note: Failure to list a type of Federal assistance in appendix A 
shall not mean, if title VI is otherwise applicable, that a program is 
not covered.
    1. Lease of real property and the grant of permits, licenses, 
easements and rights-of-way covering real property under control of the 
U.S. Coast Guard (14 U.S.C. 93 (n) and (o)).
    2. Utilization of U.S. Coast Guard personnel and facilities by any 
State, territory, possession, or political subdivision thereof (14 
U.S.C. 141(a)).
    3. Use of U.S. Coast Guard personnel for duty in connection with 
maritime instruction and training by the States, territories, and the 
Commonwealth of Puerto Rico (14 U.S.C. 148).
    4. Use of obsolete and other U.S. Coast Guard material by sea scout 
service of Boy Scouts of America, any incorporated unit of the U.S. 
Coast Guard auxiliary, and public body or private organization not 
organized for profit (14 U.S.C. 641(a)).
    5. U.S. Coast Guard Auxiliary Program (14 U.S.C. 821-832).
    6. U.S. Coast Guard Boating Safety Financial Assistance program.
    7. U.S. Coast Guard State Access to Oil Spill Liability Trust Fund.
    8. U.S. Coast Guard Bridge Alteration.
    9. Use of Customs personnel and facilities by any State, territory, 
possession, or political subdivision thereof.
    10. Use of Customs personnel for duty in connection with instruction 
and training by the States, territories and the Commonwealth of Puerto 
Rico.
    11. Grants to educational institutions, associations, States, or 
other entities for research, analysis, or programs or strategies 
relating to trade issues.

[[Page 197]]



Sec. Appendix B to Part 21--Activities to Which This Part Applies When a 
  Primary Objective of the Federal Financial Assistance Is To Provide 
                               Employment

    Note: Failure to list a type of Federal assistance in appendix B 
shall not mean, if title VI is otherwise applicable, that a program is 
not covered.
[Reserved]



PART 25_REGULATIONS TO SUPPORT ANTI-TERRORISM BY FOSTERING EFFECTIVE TECHNOLOGIES--Table of Contents



Sec.
25.1 Purpose.
25.2 Definitions.
25.3 Delegation.
25.4 Designation of qualified anti-terrorism technologies.
25.5 Obligations of seller.
25.6 Procedures for designation of qualified anti-terrorism 
          technologies.
25.7 Litigation management.
25.8 Government contractor Defense.
25.9 Procedures for certification of approved products for Homeland 
          Security.
25.10 Confidentiality and protection of intellectual property.

    Authority: Subtitle G, of Title VIII, Public Law 107-296, 116 Stat. 
2238 (6 U.S.C. 441-444).

    Source: 71 FR 33159, June 8, 2006, unless otherwise noted.



Sec.  25.1  Purpose.

    This part implements the Support Anti-terrorism by Fostering 
Effective Technologies Act of 2002, sections 441-444 of title 6, United 
States Code (the ``SAFETY Act'' or ``the Act'').



Sec.  25.2  Definitions.

    Act of Terrorism--The term ``Act of Terrorism'' means any act 
determined to have met the following requirements or such other 
requirements as defined and specified by the Secretary:
    (1) Is unlawful;
    (2) Causes harm, including financial harm, to a person, property, or 
entity, in the United States, or in the case of a domestic United States 
air carrier or a United States-flag vessel (or a vessel based 
principally in the United States on which United States income tax is 
paid and whose insurance coverage is subject to regulation in the United 
States), in or outside the United States; and
    (3) Uses or attempts to use instrumentalities, weapons or other 
methods designed or intended to cause mass destruction, injury or other 
loss to citizens or institutions of the United States.
    Certification--The term ``Certification'' means (unless the context 
requires otherwise) the certification issued pursuant to section 25.9 
that a Qualified Anti-Terrorism Technology for which a Designation has 
been issued will perform as intended, conforms to the Seller's 
specifications, and is safe for use as intended.
    Contractor--The term ``contractor'' means any person, firm, or other 
entity with whom or with which a Seller has a contract or contractual 
arrangement relating to the manufacture, sale, use, or operation of 
anti-terrorism Technology for which a Designation is issued (regardless 
of whether such contract is entered into before or after the issuance of 
such Designation), including, without limitation, an independent 
laboratory or other entity engaged in testing or verifying the safety, 
utility, performance, or effectiveness of such Technology, or the 
conformity of such Technology to the Seller's specifications.
    Designation--The term ``Designation'' means the designation of a 
Qualified Anti-Terrorism Technology under the SAFETY Act issued by the 
Under Secretary under authority delegated to the Under Secretary by the 
Secretary of Homeland Security.
    Loss--The term ``loss'' means death, bodily injury, or loss of or 
damage to property, including business interruption loss (which is a 
component of loss of or damage to property).
    Noneconomic damages--The term ``noneconomic damages'' means damages 
for losses for physical and emotional pain, suffering, inconvenience, 
physical impairment, mental anguish, disfigurement, loss of enjoyment of 
life, loss of society and companionship, loss of consortium, hedonic 
damages, injury to reputation, and any other nonpecuniary losses.
    Office of SAFETY Act Implementation--The term ``Office of SAFETY Act 
Implementation'' or ``OSAI'' means the

[[Page 198]]

office within the Department of Homeland Security's Directorate of 
Science and Technology that assists with the implementation of the 
SAFETY Act. The responsibilities of the Office of SAFETY Act 
Implementation may include, without limitation, preparing the SAFETY Act 
Application Kit, receiving and facilitating the evaluation of 
applications, managing the SAFETY Act Web site and otherwise providing 
the public with information regarding the SAFETY Act and the application 
process.
    Physical harm--The term ``physical harm'' as used in the Act and 
this part means any physical injury to the body, including an injury 
that caused, either temporarily or permanently, partial or total 
physical disability, incapacity or disfigurement. In no event shall 
physical harm include mental pain, anguish, or suffering, or fear of 
injury.
    Qualified Anti-Terrorism Technology or QATT--The term ``'Qualified 
Anti-Terrorism Technology'' or ``QATT'' means any Technology (including 
information technology) designed, developed, modified, procured, or sold 
for the purpose of preventing, detecting, identifying, or deterring acts 
of terrorism or limiting the harm such acts might otherwise cause, for 
which a Designation has been issued pursuant to this part.
    SAFETY Act or Act--The term ``SAFETY Act'' or ``Act'' means the 
Support Anti-terrorism by Fostering Effective Technologies Act of 2002, 
sections 441-444 of title 6, United States Code.
    SAFETY Act Application Kit --The term ``SAFETY Act Application Kit'' 
means the Application Kit containing the instructions and forms 
necessary to apply for Designation or Certification. The SAFETY Act 
Application Kit shall be published at http://www.safetyact.gov or made 
available in hard copy upon written request to: Directorate of Science 
and Technology, SAFETY Act/room 4320, Department of Homeland Security, 
Washington, DC 20528.
    SAFETY Act Confidential Information--Any and all information and 
data voluntarily submitted to the Department under this part (including 
Applications, Pre-Applications, other forms, supporting documents and 
other materials relating to any of the foregoing, and responses to 
requests for additional information), including, but not limited to, 
inventions, devices, Technology, know-how, designs, copyrighted 
information, trade secrets, confidential business information, analyses, 
test and evaluation results, manuals, videotapes, contracts, letters, 
facsimile transmissions, electronic mail and other correspondence, 
financial information and projections, actuarial calculations, liability 
estimates, insurance quotations, and business and marketing plans. 
Notwithstanding the foregoing, ``SAFETY Act Confidential Information'' 
shall not include any information or data that is in the public domain 
or becomes part of the public domain by any means other than the 
violation of this section.
    Secretary--The term ``Secretary'' means the Secretary of Homeland 
Security as established by section 102 of the Homeland Security Act of 
2002.
    Seller--The term ``Seller'' means any person, firm, or other entity 
that sells or otherwise provides Qualified Anti-Terrorism Technology to 
any customer(s) and to whom or to which (as appropriate) a Designation 
and/or Certification has been issued under this part (unless the context 
requires otherwise).
    Technology--The term ``Technology'' means any product, equipment, 
service (including support services), device, or technology (including 
information technology) or any combination of the foregoing. Design 
services, consulting services, engineering services, software 
development services, software integration services, threat assessments, 
vulnerability studies, and other analyses relevant to homeland security 
may be deemed a Technology under this part.
    Under Secretary--The term ``Under Secretary'' means the Under 
Secretary for Science and Technology of the Department of Homeland 
Security.



Sec.  25.3  Delegation.

    All of the Secretary's responsibilities, powers, and functions under 
the SAFETY Act, except the authority to declare that an act is an Act of 
Terrorism for purposes of section 865(2) of the SAFETY Act, may be 
exercised by

[[Page 199]]

the Under Secretary for Science and Technology of the Department of 
Homeland Security or the Under Secretary's designees.



Sec.  25.4  Designation of qualified anti-terrorism technologies.

    (a) General. The Under Secretary may Designate as a Qualified Anti-
Terrorism Technology for purposes of the protections under the system of 
litigation and risk management set forth in sections 441-444 of Title 6, 
United States Code, any qualifying Technology designed, developed, 
modified, provided or procured for the specific purpose of preventing, 
detecting, identifying, or deterring acts of terrorism or limiting the 
harm such acts might otherwise cause.
    (b) Criteria to be Considered. (1) In determining whether to issue 
the Designation under paragraph (a) of this section, the Under Secretary 
may exercise discretion and judgment in considering the following 
criteria and evaluating the Technology:
    (i) Prior United States Government use or demonstrated substantial 
utility and effectiveness.
    (ii) Availability of the Technology for immediate deployment in 
public and private settings.
    (iii) Existence of extraordinarily large or extraordinarily 
unquantifiable potential third party liability risk exposure to the 
Seller or other provider of such anti-terrorism Technology.
    (iv) Substantial likelihood that such anti-terrorism Technology will 
not be deployed unless protections under the system of risk management 
provided under sections 441-444 of title 6, United States Code, are 
extended.
    (v) Magnitude of risk exposure to the public if such anti-terrorism 
Technology is not deployed.
    (vi) Evaluation of all scientific studies that can be feasibly 
conducted in order to assess the capability of the Technology to 
substantially reduce risks of harm.
    (vii) Anti-terrorism Technology that would be effective in 
facilitating the defense against acts of terrorism, including 
Technologies that prevent, defeat or respond to such acts.
    (viii) A determination made by Federal, State, or local officials, 
that the Technology is appropriate for the purpose of preventing, 
detecting, identifying or deterring acts of terrorism or limiting the 
harm such acts might otherwise cause.
    (ix) Any other factor that the Under Secretary may consider to be 
relevant to the determination or to the homeland security of the United 
States.
    (2) The Under Secretary has discretion to give greater weight to 
some factors over others, and the relative weighting of the various 
criteria may vary depending upon the particular Technology at issue and 
the threats that the Technology is designed to address. The Under 
Secretary may, in his discretion, determine that failure to meet a 
particular criterion justifies denial of an application under the SAFETY 
Act. However, the Under Secretary is not required to reject an 
application that fails to meet one or more of the criteria. The Under 
Secretary may conclude, after considering all of the relevant criteria 
and any other relevant factors, that a particular Technology merits 
Designation as a Qualified Anti-Terrorism Technology even if one or more 
particular criteria are not satisfied. The Under Secretary's 
considerations will take into account evolving threats and conditions 
that give rise to the need for the anti-terrorism Technologies.
    (c) Use of Standards. From time to time, the Under Secretary may 
develop, issue, revise, adopt, and recommend technical standards for 
various categories or components of anti-terrorism Technologies 
(``Adopted Standards''). In the case of Adopted Standards that are 
developed by the Department or that the Department has the right or 
license to reproduce, the Department will make such standards available 
to the public consistent with necessary protection of sensitive homeland 
security information. In the case of Adopted Standards that the 
Department does not have the right or license to reproduce, the 
Directorate of Science and Technology will publish a list and summaries 
of such standards and may publish information regarding the sources for 
obtaining copies of such standards. Compliance with any Adopted Standard 
or other technical standards that are applicable to a particular

[[Page 200]]

anti-terrorism Technology may be considered in determining whether a 
Technology will be Designated pursuant to paragraph (a) of this section. 
Depending on whether an Adopted Standard otherwise meets the criteria 
set forth in section 862 of the Homeland Security Act; 6 U.S.C. 441, the 
Adopted Standard itself may be deemed a Technology that may be 
Designated as a Qualified Anti-Terrorism Technology.
    (d) Consideration of Substantial Equivalence. In considering the 
criteria in paragraph (b) of this section, or evaluating whether a 
particular anti-terrorism Technology complies with any Adopted Standard 
referenced in paragraph (c) of this section, the Under Secretary may 
consider evidence that the Technology is substantially equivalent to 
other Technologies (``Predicate Technologies'') that previously have 
been Designated as Qualified Anti-Terrorism Technologies under the 
SAFETY Act. A Technology may be deemed to be substantially equivalent to 
a Predicate Technology if:
    (1) It has the same intended use as the Predicate Technology; and
    (2) It has the same or substantially similar performance or 
technological characteristics as the Predicate Technology.
    (e) Pre-Application Consultations. To the extent that he deems it to 
be appropriate, the Under Secretary may consult with prospective and 
current SAFETY Act applicants regarding their particular anti-terrorism 
Technologies. Prospective applicants may request such consultations 
through the Office of SAFETY Act Implementation. The confidentiality 
provisions in Sec.  25.10 shall be applicable to such consultations.
    (f) Developmental Testing & Evaluation (DT&E) Designations. With 
respect to any Technology that is being developed, tested, evaluated, 
modified or is otherwise being prepared for deployment for the purpose 
of preventing, detecting, identifying, or deterring acts of terrorism or 
limiting the harm such acts might otherwise cause, the Under Secretary 
may Designate such Technology as a Qualified Anti-Terrorism Technology 
and make such Technology eligible for the protections under the system 
of litigation and risk management set forth in sections 441-444 of title 
6, United States Code. A Designation made pursuant to this paragraph 
shall be referred to as a ``DT&E Designation,'' and shall confer all of 
the rights, privileges and obligations that accompany Designations made 
pursuant to paragraph (a) of this section except as modified by the 
terms of this paragraph or the terms of the particular DT&E Designation. 
The intent of this paragraph is to make eligible for SAFETY Act 
protections qualifying Technologies that are undergoing testing and 
evaluation and that may need to be deployed in the field either for 
developmental testing and evaluation purposes or on an emergency basis, 
including during a period of heightened risk. DT&E Designations shall 
describe the subject Technology (in such detail as the Under Secretary 
deems to be appropriate); identify the Seller of the subject Technology; 
be limited to the period of time set forth in the applicable DT&E 
Designation, which in no instance shall exceed a reasonable period for 
testing or evaluating the Technology (presumptively not longer than 36 
months); be terminable by the Under Secretary at any time upon notice to 
the Seller; be subject to the limitations on the use or deployment of 
the QATT set forth in the DT&E Designation; and be subject to such other 
limitations as established by the Under Secretary. The protections 
associated with a DT&E Designation shall apply only during the period 
specified in the applicable DT&E Designation. Consent of the Seller of a 
QATT Designated pursuant to this paragraph will be a condition precedent 
to the establishment of any deployment or use condition and any other 
obligation established by the Under Secretary pursuant to this 
paragraph. Those seeking a DT&E Designation for a QATT pursuant to this 
paragraph (f) shall follow the procedures for DT&E Designations set 
forth in the SAFETY Act Application Kit.



Sec.  25.5  Obligations of seller.

    (a) Liability Insurance Required. The Seller shall obtain liability 
insurance of such types and in such amounts as shall be required in the 
applicable Designation, which shall be the amounts

[[Page 201]]

and types certified by the Under Secretary to satisfy otherwise 
compensable third-party claims arising out of, relating to, or resulting 
from an Act of Terrorism when Qualified Anti-Terrorism Technologies have 
been deployed in defense against, response to, or recovery from, such 
act. The Under Secretary may request at any time that the Seller of a 
Qualified Anti-Terrorism Technology submit any information that would:
    (1) Assist in determining the amount of liability insurance 
required; or
    (2) Show that the Seller or any other provider of Qualified Anti-
Terrorism Technology otherwise has met all of the requirements of this 
section.
    (b) Amount of Liability Insurance. (1) The Under Secretary may 
determine the appropriate amounts and types of liability insurance that 
the Seller will be required to obtain and maintain based on criteria he 
may establish to satisfy compensable third-party claims arising from, 
relating to or resulting from an Act of Terrorism. In determining the 
amount of liability insurance required, the Under Secretary may consider 
any factor, including, but not limited to, the following:
    (i) The particular Technology at issue;
    (ii) The amount of liability insurance the Seller maintained prior 
to application;
    (iii) The amount of liability insurance maintained by the Seller for 
other Technologies or for the Seller's business as a whole;
    (iv) The amount of liability insurance typically maintained by 
Sellers of comparable Technologies;
    (v) Information regarding the amount of liability insurance offered 
on the world market;
    (vi) Data and history regarding mass casualty losses;
    (vii) The intended use of the Technology; and
    (viii) The possible effects of the cost of insurance on the price of 
the product, and the possible consequences thereof for development, 
production, or deployment of the Technology.
    (2) In determining the appropriate amounts and types of insurance 
that a particular Seller is obligated to carry, the Under Secretary may 
not require any type of insurance or any amount of insurance that is not 
available on the world market, and may not require any type or amount of 
insurance that would unreasonably distort the sales price of the 
Seller's anti-terrorism Technology
    (c) Scope of Coverage. (1) Liability insurance required to be 
obtained pursuant to this section shall, in addition to the Seller, 
protect the following, to the extent of their potential liability for 
involvement in the manufacture, qualification, sale, use, or operation 
of Qualified Anti-Terrorism Technologies deployed in defense against, 
response to, or recovery from, an Act of Terrorism:
    (i) Contractors, subcontractors, suppliers, vendors and customers of 
the Seller.
    (ii) Contractors, subcontractors, suppliers, and vendors of the 
customer.
    (2) Notwithstanding the foregoing, in appropriate instances the 
Under Secretary will specify in a particular Designation that, 
consistent with the Department's interpretation of the SAFETY Act, an 
action for the recovery of damages proximately caused by a Qualified 
Anti-Terrorism Technology that arises out of, relates to, or results 
from an Act of Terrorism may properly be brought only against the Seller 
and, accordingly, the liability insurance required to be obtained 
pursuant to this section shall be required to protect only the Seller.
    (d) Third Party Claims. To the extent available pursuant to the 
SAFETY Act, liability insurance required to be obtained pursuant to this 
section shall provide coverage against third party claims arising out 
of, relating to, or resulting from an Act of Terrorism when the 
applicable Qualified Anti-Terrorism Technologies have been deployed in 
defense against, response to, or recovery from such act.
    (e) Reciprocal Waiver of Claims. The Seller shall enter into a 
reciprocal waiver of claims with its contractors, subcontractors, 
suppliers, vendors, and customers, and contractors and subcontractors of 
the customers, involved in the manufacture, sale, use, or operation of 
Qualified Anti-Terrorism Technologies, under which each party to the 
waiver agrees to be responsible

[[Page 202]]

for losses, including business interruption losses, that it sustains, or 
for losses sustained by its own employees resulting from an activity 
resulting from an Act of Terrorism when Qualified Anti-Terrorism 
Technologies have been deployed in defense against, response to, or 
recovery from such act. Notwithstanding the foregoing, provided that the 
Seller has used diligent efforts in good faith to obtain all required 
reciprocal waivers, obtaining such waivers shall not be a condition 
precedent or subsequent for, nor shall the failure to obtain one or more 
of such waivers adversely affect, the issuance, validity, effectiveness, 
duration, or applicability of a Designation or a Certification. Nothing 
in this paragraph (e) shall be interpreted to render the failure to 
obtain one or more of such waivers a condition precedent or subsequent 
for the issuance, validity, effectiveness, duration, or applicability of 
a Designation or a Certification.
    (f) Information to be Submitted by the Seller. As part of any 
application for a Designation, the Seller shall provide all information 
that may be requested by the Under Secretary or his designee, regarding 
a Seller's liability insurance coverage applicable to third-party claims 
arising out of, relating to, or resulting from an Act of Terrorism when 
the Seller's Qualified Anti-Terrorism Technology has been deployed in 
defense against, response to, or recovery from such act, including:
    (1) Names of insurance companies, policy numbers, and expiration 
dates;
    (2) A description of the types and nature of such insurance 
(including the extent to which the Seller is self-insured or intends to 
self-insure);
    (3) Dollar limits per occurrence and annually of such insurance, 
including any applicable sublimits;
    (4) Deductibles or self-insured retentions, if any, that are 
applicable;
    (5) Any relevant exclusions from coverage under such policies or 
other factors that would affect the amount of insurance proceeds that 
would be available to satisfy third party claims arising out of, 
relating to, or resulting from an Act of Terrorism;
    (6) The price for such insurance, if available, and the per-unit 
amount or percentage of such price directly related to liability 
coverage for the Seller's Qualified Anti-Terrorism Technology deployed 
in defense against, or response to, or recovery from an Act of 
Terrorism;
    (7) Where applicable, whether the liability insurance, in addition 
to the Seller, protects contractors, subcontractors, suppliers, vendors 
and customers of the Seller and contractors, subcontractors, suppliers, 
vendors and customers of the customer to the extent of their potential 
liability for involvement in the manufacture, qualification, sale, use 
or operation of Qualified Anti-terrorism Technologies deployed in 
defense against, response to, or recovery from an Act of Terrorism; and
    (8) Any limitations on such liability insurance.
    (g) Under Secretary's Certification. For each Qualified Anti-
Terrorism Technology, the Under Secretary shall certify the amount of 
liability insurance the Seller is required to carry pursuant to section 
443(a) of title 6, United States Code, and paragraphs (a), (b), and (c) 
of this section. The Under Secretary shall include the insurance 
certification under this section as a part of the applicable 
Designation. The insurance certification may specify a period of time 
for which such insurance certification will apply. The Seller of a 
Qualified Anti-Terrorism Technology may at any time petition the Under 
Secretary for a revision of the insurance certification under this 
section, and the Under Secretary may revise such insurance certification 
in response to such a petition. The Under Secretary may at any time 
request information from the Seller regarding the insurance carried by 
the Seller or the amount of insurance available to the Seller.
    (h) Seller's Continuing Obligations. Within 30 days after the Under 
Secretary's insurance certification required by paragraph (g) of this 
section, the Seller shall certify to the Under Secretary in writing that 
the Seller has obtained the required insurance. Within 30 days of each 
anniversary of the issuance of a Designation or at any other time as he 
may determine, the

[[Page 203]]

Under Secretary may require, by written notice to the Seller, that the 
Seller certify to the Under Secretary in writing that the Seller has 
maintained the required insurance. The Under Secretary may terminate a 
Designation if the Seller fails to provide any of the insurance 
certifications required by this paragraph (h) or provides a false 
certification.



Sec.  25.6  Procedures for designation of qualified anti-terrorism technologies.

    (a) Application Procedure. Any person, firm or other entity seeking 
a Designation shall submit an application to the Under Secretary or such 
other official as may be named from time to time by the Under Secretary. 
Such applications shall be submitted according to the procedures set 
forth in and using the appropriate forms contained in the SAFETY Act 
Application Kit prescribed by the Under Secretary, which shall be made 
available at http://www.safetyact.gov and by mail upon written request 
to: Directorate of Science and Technology, SAFETY Act/room 4320, 
Department of Homeland Security, Washington, DC 20528. The burden is on 
the applicant to make timely submission of all relevant data requested 
in the SAFETY Act Application Kit to substantiate an application for 
Designation. An applicant may withdraw a submitted application at any 
time and for any reason by making a written request for withdrawal with 
the Department. Withdrawal of a SAFETY Act application shall have no 
prejudicial effect on any other application.
    (b) Initial Notification. Within 30 days after receipt of an 
application for a Designation, the Under Secretary his designee shall 
notify the applicant in writing that:
    (1) The application is complete and will be reviewed and evaluated, 
or
    (2) That the application is incomplete, in which case the missing or 
incomplete parts will be specified.
    (c) Review Process. (1) The Under Secretary or his designee will 
review each complete application and any included supporting materials. 
In performing this function, the Under Secretary or his designee may but 
is not required to:
    (i) Request additional information from the Seller;
    (ii) Meet with representatives of the Seller;
    (iii) Consult with, and rely upon the expertise of, any other 
Federal or non-Federal entity;
    (iv) Perform studies or analyses of the subject Technology or the 
insurance market for such Technology; and
    (v) Seek information from insurers regarding the availability of 
insurance for such Technology.
    (2) For Technologies with which a Federal, State, or local 
government agency already has substantial experience or data (through 
the procurement process or through prior use or review), the review may 
rely in part upon such prior experience and, thus, may be expedited. The 
Under Secretary may consider any scientific studies, testing, field 
studies, or other experience with the Technology that he deems 
appropriate and that are available or can be feasibly conducted or 
obtained, including test results produced by an independent laboratory 
or other entity engaged to test or verify the safety, utility, 
performance, in order to assess the effectiveness of the Technology or 
the capability of the Technology to substantially reduce risks of harm. 
Such studies may, in the Under Secretary's discretion, include, without 
limitation:
    (i) Public source studies;
    (ii) Classified and otherwise confidential studies;
    (iii) Studies, tests, or other performance records or data provided 
by or available to the producer of the specific Technology; and
    (iv) Proprietary studies that are available to the Under Secretary.
    (3) In considering whether or the extent to which it is feasible to 
defer a decision on a Designation until additional scientific studies 
can be conducted on a particular Technology, the Under Secretary will 
bring to bear his expertise concerning the protection of the security of 
the United States and will consider the urgency of the need for the 
Technology.
    (d) Action by the Under Secretary. Within 90 days of notification to 
the Seller that an application for a Designation is complete in 
accordance with paragraph (b)(1) of this section,

[[Page 204]]

the Under Secretary shall take one of the following actions:
    (1) Approve the application and issue an appropriate Designation to 
the applicant for the Technology, which shall include the insurance 
certification required by Sec.  25.5(h) of this part;
    (2) Notify the applicant in writing that the Technology is 
potentially eligible for a Designation, but that additional specified 
information is needed before a decision may be reached; or
    (3) Deny the application, and notify the applicant in writing of 
such decision. The Under Secretary may extend the 90-day time period for 
up to 45 days upon notice to the Seller. The Under Secretary is not 
required to provide a reason or cause for such extension. The Under 
Secretary's decision shall be final and not subject to review, except at 
the discretion of the Under Secretary.
    (e) Content of Designation. (1) A Designation shall:
    (i) Describe the Qualified Anti-Terrorism Technology (in such detail 
as the Under Secretary deems to be appropriate);
    (ii) Identify the Seller(s) of the Qualified Anti-Terrorism 
Technology;
    (iii) Specify the earliest date of sale of the Qualified Anti-
Terrorism Technology to which the Designation shall apply (which shall 
be determined by the Under Secretary in his discretion, and may be prior 
to, but shall not be later than, the effective date of the Designation);
    (iv) Set forth the insurance certification required by Sec.  
25.5(g); and
    (v) To the extent practicable, include such standards, 
specifications, requirements, performance criteria, limitations, or 
other information as the Department in its sole and unreviewable 
discretion may deem appropriate.
    (2) The Designation may, but need not, specify other entities that 
are required to be covered by the liability insurance required to be 
purchased by the Seller. The failure to specify a covered person, firm, 
or other entity in a Designation will not preclude the application or 
applicability of the Act's protections to that person, firm, or other 
entity.
    (f) Term of Designation; Renewal. A Designation shall be valid and 
effective for a term of five to eight years (as determined by the Under 
Secretary) commencing on the date of issuance, and the protections 
conferred by the Designation shall continue in full force and effect 
indefinitely to all sales of Qualified Anti-Terrorism Technologies 
covered by the Designation. At any time within two years prior to the 
expiration of the term of the Designation, the Seller may apply for 
renewal of the Designation. The Under Secretary shall make the 
application form for renewal available at http://www.safetyact.gov and 
by mail upon request sent to: Directorate of Science and Technology, 
SAFETY Act/room 4320, Department of Homeland Security, Washington, DC 
20528.
    (g) Government Procurements--(1) Overview. The Under Secretary may 
coordinate the review of a Technology for SAFETY Act purposes in 
connection with a Federal, State, or local government agency procurement 
of an anti-terrorism Technology in any manner he deems appropriate 
consistent with the Act and other applicable law. A determination by the 
Under Secretary to issue a Designation, or not to issue a Designation 
for a particular Technology as a QATT is not a determination that the 
Technology meets, or fails to meet, the requirements of any solicitation 
issued by any Federal government customer or non-Federal government 
customer. Determinations by the Under Secretary with respect to whether 
to issue a Designation for Technologies submitted for his review shall 
be based on the factors identified in Sec.  25.4(b).
    (2) Procedure. Any Federal, State, or local government agency that 
engages in or is planning to engage in the procurement of a Technology 
that potentially qualifies as a Qualified Anti-terrorism Technology, 
through the use of a solicitation of proposals or otherwise, may request 
that the Under Secretary issue a notice stating that the Technology to 
be procured either affirmatively or presumptively satisfies the 
technical criteria necessary to be deemed a Qualified Anti-Terrorism 
Technology (a ``Pre-Qualification Designation Notice''). The Pre-
Qualification Designation Notice will provide that the vendor(s) chosen 
to provide

[[Page 205]]

the Technology (the ``Selected Vendor(s)''), upon submitting an 
application for SAFETY Act Designation will: Receive expedited review of 
their application for Designation; either affirmatively or presumptively 
(as the case may be) be deemed to have satisfied the technical criteria 
for SAFETY Act Designation with respect to the Technology identified in 
the Pre-Qualification Designation Notice; and be authorized to submit a 
streamlined application as set forth in the Pre-Qualification 
Designation Notice. In instances in which the subject procurement 
involves Technology with respect to which a Block Designation or Block 
Certification has been issued, the Department may determine that the 
vendor providing such Technology will affirmatively receive Designation 
or Certification with respect to such Technology, provided the vendor 
satisfy each other applicable requirement for Designation or 
Certification. Government agencies seeking a Pre-Qualification 
Designation Notice shall submit a written request using the 
``Procurement Pre-Qualification Request'' form prescribed by the Under 
Secretary and made available at http://www.safetyact.gov and by mail 
upon request sent to: Directorate of Science and Technology, SAFETY Act/
room 4320, Department of Homeland Security, Washington, DC 20528.
    (3) Actions. Within 60 days after the receipt of a complete 
Procurement Pre-Qualification Request, the Under Secretary shall take 
one of the following actions:
    (i) Approve the Procurement Pre-Qualification Request and issue an 
appropriate Pre-Qualification Designation Notice to the requesting 
agency that it may include in the government contract or in the 
solicitation materials, as appropriate; or
    (ii) Notify the requesting agency in writing that the relevant 
procurement is potentially eligible for a Pre-Qualification Designation 
Notice, but that additional information is needed before a decision may 
be reached; or
    (iii) Deny the Procurement Pre-Qualification Request and notify the 
requesting agency in writing of such decision, including the reasons for 
such denial.
    (4) Contents of Notice. A Pre-Qualification Designation Notice shall 
contain, at a minimum, the following:
    (i) A detailed description of and detailed specifications for the 
Technology to which the Pre-Qualification Designation Notice applies, 
which may incorporate by reference all or part of the procurement 
solicitation documents issued or to be issued by the requesting agency;
    (ii) A statement that the Technology to which the Pre-Qualification 
Designation Notice applies satisfies the technical criteria to be deemed 
a Qualified Anti-Terrorism Technology and that the Selected Vendor(s) 
may presumptively or will qualify for the issuance of a Designation for 
such Technology upon compliance with the terms and conditions set forth 
in such Pre-Qualification Designation Notice and the approval of the 
streamlined application;
    (iii) A list of the portions of the application referenced in Sec.  
25.6(a) that the Selected Vendor(s) must complete and submit to the 
Department in order to obtain Designation and the appropriate period of 
time for such submission;
    (iv) The period of time within which the Under Secretary will take 
action upon such submission;
    (v) The date of expiration of such Pre-Qualification Designation 
Notice; and
    (vi) Any other terms or conditions that the Under Secretary deems to 
be appropriate in his discretion.
    (5) Review of Completed Applications. The application for 
Designation from the Selected Vendor(s) shall be considered, processed, 
and acted upon in accordance with the procedures set forth in Sec.  25.6 
(which shall be deemed to be modified by the terms and conditions set 
forth in the applicable Pre-Qualification Designation Notice). However, 
the review and evaluation of the Technology to be procured from the 
Selected Vendor(s), in relation to the criteria set forth in Sec.  
25.4(b), shall ordinarily consist of a validation that that the 
Technology complies with the detailed description of and detailed 
specifications for the Technology set forth in the applicable Pre-
Qualification Designation Notice.

[[Page 206]]

    (h) Block Designations. (1) From time to time, the Under Secretary, 
in response to an application submitted pursuant to Sec.  25.6(a) or 
upon his own initiative, may issue a Designation that is applicable to 
any person, firm, or other entity that is a qualified Seller of the QATT 
described in such Designation (a ``Block Designation''). A Block 
Designation will be issued only for Technology that relies on 
established performance standards or defined technical characteristics. 
All Block Designations shall be published by the Department within ten 
days after the issuance thereof at http://www.safetyact.gov, and copies 
may also be obtained by mail by sending a request to: Directorate of 
Science and Technology, SAFETY Act/room 4320, Department of Homeland 
Security, Washington, DC 20528. Any person, firm, or other entity that 
desires to qualify as a Seller of a QATT that has received a Block 
Designation shall complete only such portions of the application 
referenced in Sec.  25.6(a) as are specified in such Block Designation 
and shall submit an application to the Department in accordance with 
Sec.  25.6(a) and the terms of the Block Designation. Applicants seeking 
to be qualified Sellers of a QATT pursuant to a Block Designation will 
receive expedited review of their applications and shall not be required 
to provide information with respect to the technical merits of the QATT 
that has received Block Designation. Within 60 days (or such other 
period of time as may be specified in the applicable Block Designation) 
after the receipt by the Department of a complete application, the Under 
Secretary shall take one of the following actions:
    (i) Approve the application and notify the applicant in writing of 
such approval, which notification shall include the certification 
required by Sec.  25.5(g); or
    (ii) Deny the application, and notify the applicant in writing of 
such decision, including the reasons for such denial.
    (2) If the application is approved, commencing on the date of such 
approval the applicant shall be deemed to be a Seller under the 
applicable Block Designation for all purposes under the SAFETY Act, this 
part, and such Block Designation. A Block Designation shall be valid and 
effective for a term of five to eight years (as determined by the Under 
Secretary in his discretion) commencing on the date of issuance, and may 
be renewed or extended by the Under Secretary at his own initiative or 
in response to an application for renewal submitted by a qualified 
Seller under such Block Designation in accordance with Sec.  25.6(h). 
Except as otherwise specifically provided in this paragraph, a Block 
Designation shall be deemed to be a Designation for all purposes under 
the SAFETY Act and this part.
    (i) Other Bases for Expedited Review of Applications. The Under 
Secretary may identify other categories or types of Technologies for 
which expedited processing may be granted. For example, the Under 
Secretary may conduct expedited processing for applications addressing a 
particular threat or for particular types of anti-terrorism 
Technologies. The Under Secretary shall notify the public of any such 
opportunities for expedited processing by publishing such notice in the 
Federal Register.
    (j) Transfer of Designation. Except as may be restricted by the 
terms and conditions of a Designation, any Designation may be 
transferred and assigned to any other person, firm, or other entity to 
which the Seller transfers and assigns all right, title, and interest in 
and to the Technology covered by the Designation, including the 
intellectual property rights therein (or, if the Seller is a licensee of 
the Technology, to any person, firm, or other entity to which such 
Seller transfers all of its right, title, and interest in and to the 
applicable license agreement). Such transfer and assignment of a 
Designation will not be effective unless and until the Under Secretary 
is notified in writing of the transfer using the ``Application for 
Transfer of Designation'' form issued by the Under Secretary (the Under 
Secretary shall make this application form available at http://
www.safetyact.gov and by mail by written request sent to: Directorate of 
Science and Technology, SAFETY Act/room 4320, Department of Homeland 
Security, Washington, DC 20528).

[[Page 207]]

Upon the effectiveness of such transfer and assignment, the transferee 
will be deemed to be a Seller in the place and stead of the transferor 
with respect to the applicable Technology for all purposes under the 
SAFETY Act, this part, and the transferred Designation. The transferred 
Designation will continue to apply to the transferor with respect to all 
transactions and occurrences that occurred through the time at which the 
transfer and assignment of the Designation became effective, as 
specified in the applicable Application for Transfer of Designation.
    (k) Application of Designation to Licensees. Except as may be 
restricted by the terms and conditions of a Designation, any Designation 
shall apply to any other person, firm, or other entity to which the 
Seller licenses (exclusively or nonexclusively) the right to 
manufacture, use, or sell the Technology, in the same manner and to the 
same extent that such Designation applies to the Seller, effective as of 
the date of commencement of the license, provided that the Seller 
notifies the Under Secretary of such license by submitting, within 30 
days after such date of commencement, a ``Notice of License of Qualified 
Anti-terrorism Technology'' form issued by the Under Secretary. The 
Under Secretary shall make this form available at http://
www.safetyact.gov and by mail upon request sent to: Directorate of 
Science and Technology, SAFETY Act/room 4320, Department of Homeland 
Security, Washington, DC 20528. Such notification shall not be required 
for any licensee listed as a Seller on the applicable Designation.
    (l) Significant Modification of Qualified Anti-terrorism 
Technologies. (1) The Department recognizes that Qualified Anti-
Terrorism Technologies may routinely undergo changes or modifications in 
their manufacturing, materials, installation, implementation, operating 
processes, component assembly, or in other respects from time to time. 
When a Seller makes routine changes or modifications to a Qualified 
Anti-Terrorism Technology, such that the QATT remains within the scope 
of the description set forth in the applicable Designation or 
Certification, the Seller shall not be required to provide notice under 
this subsection, and the changes or modifications shall not adversely 
affect the force or effect of the Seller's QATT Designation or 
Certification.
    (2) A Seller shall promptly notify the Department and provide 
details of any change or modification to a QATT that causes the QATT no 
longer to be within the scope of the Designation or Certification by 
submitting to the Department a completed ``Notice of Modification to 
Qualified Anti-Terrorism Technology'' form issued by the Under Secretary 
(a ``Modification Notice''). A Seller is not required to notify the 
Department of any change or modification of a particular Qualified Anti-
Terrorism Technology that is made post-sale by a purchaser unless the 
Seller has consented expressly to the modification. The Under Secretary 
shall make an appropriate form available at http://www.safetyact.gov and 
by mail upon request sent to: Directorate of Science and Technology, 
SAFETY Act/room 4320, Department of Homeland Security, Washington, DC 
20528. The Department will promptly acknowledge receipt of a 
Modification Notice by providing the relevant Seller with written notice 
to that effect. Within 60 days of the receipt of a Modification Notice, 
the Under Secretary may, in his sole and unreviewable discretion:
    (i) Inform the submitting Seller that the QATT as changed or 
modified is consistent with, and is not outside the scope of, the 
Seller's Designation or Certification;
    (ii) Issue to the Seller a modified Designation or Certification 
incorporating some or all of the notified changes or modifications;
    (iii) Seek further information regarding the changes or 
modifications and temporarily suspend the 60-day period of review;
    (iv) Inform the submitting Seller that the changes or modifications 
might cause the QATT as changed or modified to be outside the scope of 
the Seller's Designation or Certification, and require further review 
and consideration by the Department;
    (v) Inform the submitting Seller that the QATT as changed or 
modified is outside the scope of the subject Seller's

[[Page 208]]

Designation or Certification, and require that the QATT be brought back 
into conformance with the Seller's Designation or Certification; or
    (vi) If the Seller fails to bring the subject QATT into conformance 
in accordance with the Under Secretary's direction pursuant to paragraph 
(l)(2)(v) of this section, issue a public notice stating that the QATT 
as changed or modified is outside the scope of the submitting Seller's 
Designation or Certification and, consequentially, that such Designation 
or Certification is not applicable to the QATT as changed or modified. 
If the Under Secretary does not take one or more of such actions within 
the 60-day period following the Department's receipt of a Seller's 
Modification Notice, the changes or modifications identified in the 
Modification Notice will be deemed to be approved by the Under Secretary 
and the QATT, as changed or modified, will be conclusively established 
to be within the scope of the description of the QATT in the Seller's 
Designation or Certification.
    (3) Notwithstanding anything to the contrary herein, a Seller's 
original QATT Designation or Certification will continue in full force 
and effect in accordance with its terms unless modified, suspended, or 
terminated by the Under Secretary in his discretion, including during 
the pendency of the review of the Seller's Modification Notice. In no 
event will any SAFETY Act Designation or Certification terminate 
automatically or retroactively under this section. A Seller is not 
required to notify the Under Secretary of any change or modification 
that is made post-sale by a purchaser or end-user of the QATT without 
the Seller's consent, but the Under Secretary may, in appropriate 
circumstances, require an end-user to provide periodic reports on 
modifications or permit inspections or audits.



Sec.  25.7  Litigation management.

    (a) Liability for all claims against a Seller arising out of, 
relating to, or resulting from an Act of Terrorism when such Seller's 
Qualified Anti-Terrorism Technology has been deployed in defense 
against, response to, or recovery from such act and such claims result 
or may result in loss to the Seller shall not be in an amount greater 
than the limits of liability insurance coverage required to be 
maintained by the Seller under this section or as specified in the 
applicable Designation.
    (b) In addition, in any action for damages brought under section 442 
of Title 6, United States Code:
    (1) No punitive damages intended to punish or deter, exemplary 
damages, or other damages not intended to compensate a plaintiff for 
actual losses may be awarded, nor shall any party be liable for interest 
prior to the judgment;
    (2) Noneconomic damages may be awarded against a defendant only in 
an amount directly proportional to the percentage of responsibility of 
such defendant for the harm to the plaintiff, and no plaintiff may 
recover noneconomic damages unless the plaintiff suffered physical harm; 
and
    (3) Any recovery by a plaintiff shall be reduced by the amount of 
collateral source compensation, if any, that the plaintiff has received 
or is entitled to receive as a result of such Acts of Terrorism that 
result or may result in loss to the Seller.
    (c) Without prejudice to the authority of the Under Secretary to 
terminate a Designation pursuant to paragraph (h) of Sec.  25.6, the 
liability limitations and reductions set forth in this section shall 
apply in perpetuity to all sales or deployments of a Qualified Anti-
Terrorism Technology in defense against, response to, or recovery from 
any Act of Terrorism that occurs on or after the effective date of the 
Designation applicable to such Qualified Anti-Terrorism Technology, 
regardless of whether any liability insurance coverage required to be 
obtained by the Seller is actually obtained or maintained or not, 
provided that the sale of such Qualified Anti-Terrorism Technology was 
consummated by the Seller on or after the earliest date of sale of such 
Qualified Anti-Terrorism Technology specified in such Designation and 
prior to the earlier of the expiration or termination of such 
Designation.
    (d) There shall exist only one cause of action for loss of property, 
personal injury, or death for performance or

[[Page 209]]

non-performance of the Seller's Qualified Anti-Terrorism Technology in 
relation to an Act of Terrorism. Such cause of action may be brought 
only against the Seller of the Qualified Anti-Terrorism Technology and 
may not be brought against the buyers, the buyers' contractors, or 
downstream users of the Technology, the Seller's suppliers or 
contractors, or any other person or entity. In addition, such cause of 
action must be brought in the appropriate district court of the United 
States.



Sec.  25.8  Government contractor Defense.

    (a) Criteria for Certification. The Under Secretary may issue a 
Certification for a Qualified Anti-Terrorism Technology as an Approved 
Product for Homeland Security for purposes of establishing a rebuttable 
presumption of the applicability of the government contractor defense. 
In determining whether to issue such Certification, the Under Secretary 
or his designee shall conduct a comprehensive review of the design of 
such Technology and determine whether it will perform as intended, 
conforms to the Seller's specifications, and is safe for use as 
intended. The Seller shall provide safety and hazard analyses and other 
relevant data and information regarding such Qualified Anti-Terrorism 
Technology to the Department in connection with an application. The 
Under Secretary or his designee may require that the Seller submit any 
information that the Under Secretary or his designee considers relevant 
to the application for approval. The Under Secretary or his designee may 
consult with, and rely upon the expertise of, any other governmental or 
non-governmental person, firm, or entity, and may consider test results 
produced by an independent laboratory or other person, firm, or other 
entity engaged by the Seller.
    (b) Extent of liability. Should a product liability or other lawsuit 
be filed for claims arising out of, relating to, or resulting from an 
Act of Terrorism when Qualified Anti-Terrorism Technologies Certified by 
the Under Secretary as provided in Sec. Sec.  25.8 and 25.9 of this part 
have been deployed in defense against or response or recovery from such 
act and such claims result or may result in loss to the Seller, there 
shall be a rebuttable presumption that the government contractor defense 
applies in such lawsuit. This presumption shall only be overcome by 
clear and convincing evidence showing that the Seller acted fraudulently 
or with willful misconduct in submitting information to the Department 
during the course of the consideration of such Technology under this 
section and Sec.  25.9 of this part. A claimant's burden to show fraud 
or willful misconduct in connection with a Seller's SAFETY Act 
application cannot be satisfied unless the claimant establishes there 
was a knowing and deliberate intent to deceive the Department. This 
presumption of the government contractor defense shall apply regardless 
of whether the claim against the Seller arises from a sale of the 
product to Federal Government or non-Federal Government customers. Such 
presumption shall apply in perpetuity to all deployments of a Qualified 
Anti-Terrorism Technology (for which a Certification has been issued by 
the Under Secretary as provided in this section and Sec.  25.9 of this 
part) in defense against, response to, or recovery from any Act of 
Terrorism that occurs on or after the effective date of the 
Certification applicable to such Technology, provided that the sale of 
such Technology was consummated by the Seller on or after the earliest 
date of sale of such Technology specified in such Certification (which 
shall be determined by the Under Secretary in his discretion, and may be 
prior to, but shall not be later than, such effective date) and prior to 
the expiration or termination of such Certification.
    (c) Establishing applicability of the government contractor defense. 
The Under Secretary will be exclusively responsible for the review and 
approval of anti-terrorism Technology for purposes of establishing the 
government contractor defense in any product liability lawsuit for 
claims arising out of, relating to, or resulting from an Act of 
Terrorism when Qualified Anti-Terrorism Technologies approved by the 
Under Secretary, as provided in this final rule, have been deployed in 
defense against or response or recovery from such act and such claims 
result or may

[[Page 210]]

result in loss to the Seller. The Certification of a Technology as an 
Approved Product for Homeland Security shall be the only evidence 
necessary to establish that the Seller of the Qualified Anti-Terrorism 
Technology that has been issue a Certification is entitled to a 
presumption of dismissal from a cause of action brought against a Seller 
arising out of, relating to, or resulting from an Act of Terrorism when 
the Qualified Anti-Terrorism Technology was deployed in defense against 
or response to or recovery from such Act of Terrorism. This presumption 
of dismissal is based upon the statutory government contractor defense 
conferred by the SAFETY Act.



Sec.  25.9  Procedures for certification of approved products for Homeland Security.

    (a) Application procedure. An applicant seeking a Certification of 
anti-terrorism Technology as an Approved Product for Homeland Security 
under Sec.  25.8 shall submit information supporting such request to the 
Under Secretary. The Under Secretary shall make application forms 
available at http://www.safetyact.gov, and copies may also be obtained 
by mail by sending a request to: Directorate of Science and Technology, 
SAFETY Act/room 4320, Department of Homeland Security, Washington, DC 
20528. An application for a Certification may not be filed unless the 
applicant has also filed an application for a Designation for the same 
Technology in accordance with Sec.  25.6(a). Such applications may be 
filed simultaneously and may be reviewed simultaneously by the 
Department.
    (b) Initial notification. Within 30 days after receipt of an 
application for a Certification, the Under Secretary or his designee 
shall notify the applicant in writing that:
    (1) The application is complete and will be reviewed, or
    (2) That the application is incomplete, in which case the missing or 
incomplete parts will be specified.
    (c) Review process. The Under Secretary or his designee will review 
each complete application for a Certification and any included 
supporting materials. In performing this function, the Under Secretary 
or his designee may, but is not required to:
    (1) Request additional information from the Seller;
    (2) Meet with representatives of the Seller;
    (3) Consult with, and rely upon the expertise of, any other Federal 
or non-Federal entity; and
    (4) Perform or seek studies or analyses of the Technology.
    (d) Action by the Under Secretary. (1) Within 90 days after receipt 
of a complete application for a Certification, the Under Secretary shall 
take one of the following actions:
    (i) Approve the application and issue an appropriate Certification 
to the Seller;
    (ii) Notify the Seller in writing that the Technology is potentially 
eligible for a Certification, but that additional specified information 
is needed before a decision may be reached; or
    (iii) Deny the application, and notify the Seller in writing of such 
decision.
    (2) The Under Secretary may extend the time period one time for 45 
days upon notice to the Seller, and the Under Secretary is not required 
to provide a reason or cause for such extension. The Under Secretary's 
decision shall be final and not subject to review, except at the 
discretion of the Under Secretary.
    (e) Designation is a pre-condition. The Under Secretary may approve 
an application for a Certification only if the Under Secretary has also 
approved an application for a Designation for the same Technology in 
accordance with Sec.  25.4.
    (f) Content and term of certification; renewal. (1) A Certification 
shall:
    (i) Describe the Qualified Anti-Terrorism Technology (in such detail 
as the Under Secretary deems to be appropriate);
    (ii) Identify the Seller(s) of the Qualified Anti-Terrorism 
Technology;
    (iii) Specify the earliest date of sale of the Qualified Anti-
Terrorism Technology to which the Certification shall apply (which shall 
be determined by the Under Secretary in his discretion, and may be prior 
to, but shall not be later than, the effective date of the 
Certification); and

[[Page 211]]

    (iv) To the extent practicable, include such standards, 
specifications, requirements, performance criteria, limitations, or 
other information as the Department in its sole and unreviewable 
discretion may deem appropriate.
    (2) A Certification shall be valid and effective for the same period 
of time for which the related Designation is issued, and shall terminate 
upon the termination of such related Designation. The Seller may apply 
for renewal of the Certification in connection with an application for 
renewal of the related Designation. An application for renewal must be 
made using the ``Application for Certification of an Approved Product 
for Homeland Security'' form issued by the Under Secretary.
    (g) Application of Certification to licensees. A Certification shall 
apply to any other person, firm, or other entity to which the applicable 
Seller licenses (exclusively or nonexclusively) the right to 
manufacture, use, or and sell the Technology, in the same manner and to 
the same extent that such Certification applies to the Seller, effective 
as of the date of commencement of the license, provided that the Seller 
notifies the Under Secretary of such license by submitting, within 30 
days after such date of commencement, a ``Notice of License of Approved 
Anti-terrorism Technology'' form issued by the Under Secretary. The 
Under Secretary shall make this form available at http://
www.safetyact.gov and by mail upon request sent to: Directorate of 
Science and Technology, SAFETY Act/room 4320, Department of Homeland 
Security, Washington, DC 20528. Such notification shall not be required 
for any licensee listed as a Seller on the applicable Certification.
    (h) Transfer of Certification. In the event of any permitted 
transfer and assignment of a Designation, any related Certification for 
the same anti-terrorism Technology shall automatically be deemed to be 
transferred and assigned to the same transferee to which such 
Designation is transferred and assigned. The transferred Certification 
will continue to apply to the transferor with respect to all 
transactions and occurrences that occurred through the time at which 
such transfer and assignment of the Certification became effective.
    (i) Issuance of Certificate; Approved Product List. For anti-
terrorism Technology reviewed and approved by the Under Secretary and 
for which a Certification is issued, the Under Secretary shall issue a 
certificate of conformance to the Seller and place the anti-terrorism 
Technology on an Approved Product List for Homeland Security, which 
shall be published by the Department.
    (j) Block Certifications. (1) From time to time, the Under 
Secretary, in response to an application submitted pursuant to Sec.  
25.9(a) or at his own initiative, may issue a Certification that is 
applicable to any person, firm or other entity that is a qualified 
Seller of the Approved Product for Homeland Security described in such 
Certification (a ``Block Certification''). All Block Certifications 
shall be published by the Department within ten days after the issuance 
thereof at http://www.safetyact.gov, and copies may also be obtained by 
mail by sending a request to: Directorate of Science and Technology, 
SAFETY Act/room 4320, Department of Homeland Security, Washington, DC 
20528. Any person, firm, or other entity that desires to qualify as a 
Seller of an Approved Product for Homeland Security under a Block 
Certification shall complete only such portions of the application 
referenced in Sec.  25.9(a) as are specified in such Block Certification 
and shall submit such application to the Department in accordance with 
Sec.  9(a). Applicants seeking to be qualified Sellers of an Approved 
Product for Homeland Security pursuant to a Block Certification will 
receive expedited review of their applications and shall not be required 
to provide information with respect to the technical merits of the 
Approved Product for Homeland Security that has received Block 
Certification. Within 60 days (or such other period of time as may be 
specified in the applicable Block Certification) after the receipt by 
the Department of a complete application, the Under Secretary shall take 
one of the following actions:

[[Page 212]]

    (i) Approve the application and notify the applicant in writing of 
such approval; or
    (ii) Deny the application, and notify the applicant in writing of 
such decision, including the reasons for such denial.
    (2) If the application is approved, commencing on the date of such 
approval, the applicant shall be deemed to be a Seller under the 
applicable Block Certification for all purposes under the SAFETY Act, 
this part, and such Block Certification. A Block Certification shall be 
valid and effective for the same period of time for which the related 
Block Designation is issued. A Block Certification may be renewed by the 
Under Secretary at his own initiative or in response to an application 
for renewal submitted by a qualified Seller under such Block 
Certification in accordance with Sec.  25.9(g). Except as otherwise 
specifically provided in this paragraph, a Block Certification shall be 
deemed to be a Certification for all purposes under the SAFETY Act and 
this part.



Sec.  25.10  Confidentiality and protection of Intellectual Property.

    (a) General. The Secretary, in consultation with the Office of 
Management and Budget and appropriate Federal law enforcement and 
intelligence officials, and in a manner consistent with existing 
protections for sensitive or classified information, shall establish 
confidentiality procedures for safeguarding, maintenance and use of 
information submitted to the Department under this part. Such protocols 
shall, among other things, ensure that the Department will utilize all 
appropriate exemptions from the Freedom of Information Act.
    (b) Non-disclosure. Except as otherwise required by applicable law 
or regulation or a final order of a court of competent jurisdiction, or 
as expressly authorized in writing by the Under Secretary, no person, 
firm, or other entity may:
    (1) Disclose SAFETY Act Confidential Information (as defined above) 
to any person, firm, or other entity, or
    (2) Use any SAFETY Act Confidential Information for his, her, or its 
own benefit or for the benefit of any other person, firm, or other 
entity, unless the applicant has consented to the release of such SAFETY 
Act Confidential Information.
    (c) Legends. Any person, firm, or other entity that submits data or 
information to the Department under this part may place a legend on such 
data or information indicating that the submission constitutes SAFETY 
Act Confidential Information. The absence of such a legend shall not 
prevent any data or information submitted to the Department under this 
part from constituting or being considered by the Department to 
constitute SAFETY Act Confidential Information.



PART 27_CHEMICAL FACILITY ANTI-TERRORISM STANDARDS--Table of Contents



                            Subpart A_General

Sec.
27.100 Purpose.
27.105 Definitions.
27.110 Applicability.
27.115 Implementation.
27.120 Designation of a coordinating official; Consultations and 
          technical assistance.
27.125 Severability.

              Subpart B_Chemical Facility Security Program

27.200 Information regarding security risk for a chemical facility.
27.203 Calculating the screening threshold quantity by security issue.
27.204 Minimum concentration by security issue.
27.205 Determination that a chemical facility ``presents a high level of 
          security risk.''
27.210 Submissions schedule.
27.215 Security vulnerability assessments.
27.220 Tiering.
27.225 Site security plans.
27.230 Risk-based performance standards.
27.235 Alternative security program.
27.240 Review and approval of security vulnerability assessments.
27.245 Review and approval of site security plans.
27.250 Inspections and audits.
27.255 Recordkeeping requirements.

                   Subpart C_Orders and Adjudications

27.300 Orders.
27.305 Neutral adjudications.
27.310 Commencement of adjudication proceedings.

[[Page 213]]

27.315 Presiding officers for proceedings.
27.320 Prohibition on ex parte communications during proceedings.
27.325 Burden of proof.
27.330 Summary decision procedures.
27.335 Hearing procedures.
27.340 Completion of adjudication proceedings.
27.345 Appeals.

                             Subpart D_Other

27.400 Chemical-terrorism vulnerability information.
27.405 Review and preemption of State laws and regulations.
27.410 Third party actions.

Appendix A to Part 27--DHS Chemicals of Interest

    Authority: 6 U.S.C. 624; Pub. L. 101-410, 104 Stat. 890, as amended 
by Pub. L. 114-74, 129 Stat. 599.

    Source: 72 FR 17729, Apr. 9, 2007, unless otherwise noted.



                            Subpart A_General



Sec.  27.100  Purpose.

    The purpose of this part is to enhance the security of our Nation by 
furthering the mission of the Department as provided in 6 U.S.C. Sec.  
111(b)(1) and by lowering the risk posed by certain chemical facilities.



Sec.  27.105  Definitions.

    As used in this part:
    A Commercial Grade (ACG) shall refer to any quality or concentration 
of a chemical of interest offered for commercial sale that a facility 
uses, stores, manufactures, or ships.
    A Placarded Amount (APA) shall refer to the STQ for a sabotage and 
contamination chemical of interest, as calculated in accordance with 
Sec.  27.203(d).
    Alternative Security Program or ASP shall mean a third-party or 
industry organization program, a local authority, state or Federal 
government program or any element or aspect thereof, that the Assistant 
Secretary has determined meets the requirements of this part and 
provides for an equivalent level of security to that established by this 
part.
    Assistant Secretary shall mean the Assistant Secretary for 
Infrastructure Protection, Department of Homeland Security or his 
designee.
    Chemical Facility or facility shall mean any establishment that 
possesses or plans to possess, at any relevant point in time, a quantity 
of a chemical substance determined by the Secretary to be potentially 
dangerous or that meets other risk-related criteria identified by the 
Department. As used herein, the term chemical facility or facility shall 
also refer to the owner or operator of the chemical facility. Where 
multiple owners and/or operators function within a common infrastructure 
or within a single fenced area, the Assistant Secretary may determine 
that such owners and/or operators constitute a single chemical facility 
or multiple chemical facilities depending on the circumstances.
    Chemical of Interest shall refer to a chemical listed in appendix A 
to part 27.
    Chemical Security Assessment Tool or CSAT shall mean a suite of four 
applications, including User Registration, Top-Screen, Security 
Vulnerability Assessment, and Site Security Plan, through which the 
Department will collect and analyze key data from chemical facilities.
    Chemical-terrorism Vulnerability Information or CVI shall mean the 
information listed in Sec.  27.400(b).
    Coordinating Official shall mean the person (or his designee(s)) 
selected by the Assistant Secretary to ensure that the regulations are 
implemented in a uniform, impartial, and fair manner.
    Covered Facility or Covered Chemical Facility shall mean a chemical 
facility determined by the Assistant Secretary to present high levels of 
security risk, or a facility that the Assistant Secretary has determined 
is presumptively high risk under Sec.  27.200.
    CUM 100g shall refer to the cumulative STQ of 100 grams for 
designated theft/diversion-CW/CWP chemicals and which is located in 
appendix A to part 27 as the entry for the STQ and Minimum Concentration 
of certain theft/diversion-CW/CWP chemicals.
    Department shall mean the Department of Homeland Security.
    Deputy Secretary shall mean the Deputy Secretary of the Department 
of Homeland Security or his designee.
    Director of the Chemical Security Division or Director shall mean 
the Director

[[Page 214]]

of the Chemical Security Division, Office of Infrastructure Protection, 
Department of Homeland Security or any successors to that position 
within the Department or his designee.
    General Counsel shall mean the General Counsel of the Department of 
Homeland Security or his designee.
    Operator shall mean a person who has responsibility for the daily 
operations of a facility or facilities subject to this part.
    Owner shall mean the person or entity that owns any facility subject 
to this part.
    Present high levels of security risk and high risk shall refer to a 
chemical facility that, in the discretion of the Secretary of Homeland 
Security, presents a high risk of significant adverse consequences for 
human life or health, national security and/or critical economic assets 
if subjected to terrorist attack, compromise, infiltration, or 
exploitation.
    Risk profiles shall mean criteria identified by the Assistant 
Secretary for determining which chemical facilities will complete the 
Top-Screen or provide other risk assessment information.
    Screening Threshold Quantity or STQ shall mean the quantity of a 
chemical of interest, upon which the facility's obligation to complete 
and submit the CSAT Top-Screen is based.
    Secretary or Secretary of Homeland Security shall mean the Secretary 
of the Department of Homeland Security or any person, officer or entity 
within the Department to whom the Secretary's authority under section 
550 is delegated.
    Security Issue shall refer to the type of risks associated with a 
given chemical. For purposes of this part, there are four main security 
issues:
    (1) Release (including toxic, flammable, and explosive);
    (2)Theft and diversion (including chemical weapons and chemical 
weapons precursors, weapons of mass effect, and explosives and 
improvised explosive device precursors),
    (3) Sabotage and contamination, and
    (4) Critical to government mission and national economy.
    Terrorist attack or terrorist incident shall mean any incident or 
attempt that constitutes terrorism or terrorist activity under 6 U.S.C. 
101(15) or 18 U.S.C. 2331(5) or 8 U.S.C. 1182(a)(3)(B)(iii), including 
any incident or attempt that involves or would involve sabotage of 
chemical facilities or theft, misappropriation or misuse of a dangerous 
quantity of chemicals.
    Tier shall mean the risk level associated with a covered chemical 
facility and which is assigned to a facility by the Department. For 
purposes of this part, there are four risk-based tiers, ranging from 
highest risk at Tier 1 to lowest risk at Tier 4.
    Top-Screen shall mean an initial screening process designed by the 
Assistant Secretary through which chemical facilities provide 
information to the Department for use pursuant to Sec.  27.200 of these 
regulations.
    Under Secretary shall mean the Under Secretary for National 
Protection and Programs, Department of Homeland Security or any 
successors to that position within the Department or his designee.

[72 FR 17729, Apr. 9, 2007, as amended at 72 FR 65418, Nov. 20, 2007]



Sec.  27.110  Applicability.

    (a) This part applies to chemical facilities and to covered 
facilities as set out herein.
    (b) This part does not apply to facilities regulated pursuant to the 
Maritime Transportation Security Act of 2002, Pub. L. 107-295, as 
amended; Public Water Systems, as defined by section 1401 of the Safe 
Drinking Water Act, Pub. L. 93-523, as amended; Treatment Works as 
defined in section 212 of the Federal Water Pollution Control Act, Pub. 
L. 92-500, as amended; any facility owned or operated by the Department 
of Defense or the Department of Energy, or any facility subject to 
regulation by the Nuclear Regulatory Commission.



Sec.  27.115  Implementation.

    The Assistant Secretary may implement the section 550 program in a 
phased manner, selecting certain chemical facilities for expedited 
initial processes under these regulations and identifying other chemical 
facilities or types or classes of chemical facilities

[[Page 215]]

for other phases of program implementation. The Assistant Secretary has 
flexibility to designate particular chemical facilities for specific 
phases of program implementation based on potential risk or any other 
factor consistent with this part.



Sec.  27.120  Designation of a coordinating official; Consultations and technical assistance.

    (a) The Assistant Secretary will designate a Coordinating Official 
who will be responsible for ensuring that these regulations are 
implemented in a uniform, impartial, and fair manner.
    (b) The Coordinating Official and his staff shall provide guidance 
to covered facilities regarding compliance with this part and shall, as 
necessary and to the extent that resources permit, be available to 
consult and to provide technical assistance to an owner or operator who 
seeks such consultation or assistance.
    (c) In order to initiate consultations or seek technical assistance, 
a covered facility shall submit a written request for consultation or 
technical assistance to the Coordinating Official or contact the 
Department in any other manner specified in any subsequent guidance. 
Requests for consultation or technical guidance do not serve to toll any 
of the applicable timelines set forth in this part.
    (d) If a covered facility modifies its facility, processes, or the 
types or quantities of materials that it possesses, and believes that 
such changes may impact the covered facility's obligations under this 
part, the covered facility may request a consultation with the 
Coordinating Official as specified in paragraph (c).



Sec.  27.125  Severability.

    If a court finds any portion of this part to have been promulgated 
without proper authority, the remainder of this part will remain in full 
effect.



              Subpart B_Chemical Facility Security Program



Sec.  27.200  Information regarding security risk for a chemical facility.

    (a) Information to determine security risk. In order to determine 
the security risk posed by chemical facilities, the Secretary may, at 
any time, request information from chemical facilities that may reflect 
potential consequences of or vulnerabilities to a terrorist attack or 
incident, including questions specifically related to the nature of the 
business and activities conducted at the facility; information 
concerning the names, nature, conditions of storage, quantities, 
volumes, properties, customers, major uses, and other pertinent 
information about specific chemicals or chemicals meeting a specific 
criterion; information concerning facilities' security, safety, and 
emergency response practices, operations, and procedures; information 
regarding incidents, history, funding, and other matters bearing on the 
effectiveness of the security, safety and emergency response programs, 
and other information as necessary.
    (b) Obtaining information from facilities. (1) The Assistant 
Secretary may seek the information provided in paragraph (a) of this 
section by contacting chemical facilities individually or by publishing 
a notice in the Federal Register seeking information from chemical 
facilities that meet certain criteria, which the Department will use to 
determine risk profiles. Through any such individual or Federal Register 
notification, the Assistant Secretary may instruct such facilities to 
complete and submit a Top-Screen process, which may be completed through 
a secure Department Web site or through other means approved by the 
Assistant Secretary.
    (2) A facility must complete and submit a Top-Screen in accordance 
with the schedule provided in Sec.  27.210, the calculation provisions 
in Sec.  27.203, and the minimum concentration provisions in Sec.  
27.204 if it possesses any of the chemicals listed in appendix A to this 
part at or above the STQ for any applicable Security Issue.
    (3) Where the Department requests that a facility complete and 
submit a Top-Screen, the facility must designate a person who is 
responsible for the submission of information through the CSAT system 
and who attests to the accuracy of the information contained in any CSAT 
submissions. Such

[[Page 216]]

submitter must be an officer of the corporation or other person 
designated by an officer of the corporation and must be domiciled in the 
United States.
    (c) Presumptively High Risk Facilities. (1) If a chemical facility 
subject to paragraph (a) or (b) of this section fails to provide 
information requested or complete the Top-Screen within the timeframe 
provided in Sec.  27.210, the Assistant Secretary may, after attempting 
to consult with the facility, reach a preliminary determination, based 
on the information then available, that the facility presumptively 
presents a high level of security risk. The Assistant Secretary shall 
then issue a notice to the entity of this determination and, if 
necessary, order the facility to provide information or complete the 
Top-Screen pursuant to these rules. If the facility then fails to do so, 
it may be subject to civil penalties pursuant to Sec.  27.300, audit and 
inspection under Sec.  27.250 or, if appropriate, an order to cease 
operations under Sec.  27.300.
    (2) If the facility deemed ``presumptively high risk'' pursuant to 
paragraph (c)(1) of this section completes the Top-Screen, and the 
Department determines that it does not present a high level of security 
risk under Sec.  27.205, its status as ``presumptively high risk'' will 
terminate, and the Department will issue a notice to the facility to 
that effect.

[72 FR 17729, Apr. 9, 2007, as amended at 72 FR 65418, Nov. 20, 2007]



Sec.  27.203  Calculating the screening threshold quantity by security issue.

    (a) General. In calculating whether a facility possesses a chemical 
of interest that meets the STQ for any security issue, a facility need 
not include chemicals of interest:
    (1) Used as a structural component;
    (2) Used as products for routine janitorial maintenance;
    (3) Contained in food, drugs, cosmetics, or other personal items 
used by employees;
    (4) In process water or non-contact cooling water as drawn from 
environment or municipal sources;
    (5) In air either as compressed air or as part of combustion;
    (6) Contained in articles, as defined in 40 CFR 68.3;
    (7) In solid waste (including hazardous waste) regulated under the 
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et. seq., except 
for the waste described in 40 CFR 261.33;
    (8) in naturally occurring hydrocarbon mixtures prior to entry of 
the mixture into a natural gas processing plant or a petroleum refining 
process unit. Naturally occurring hydrocarbon mixtures include 
condensate, crude oil, field gas, and produced water as defined in 40 
CFR 68.3.
    (b) Release chemicals--(1) Release-toxic, release-flammable, and 
release-explosive chemicals. Except as provided in paragraphs (b)(2) and 
(b)(3), in calculating whether a facility possesses an amount that meets 
the STQ for release chemicals of interest, the facility shall only 
include release chemicals of interest:
    (i) In a vessel as defined in 40 CFR 68.3, in a underground storage 
facility, or stored in a magazine as defined in 27 CFR 555.11;
    (ii) In transportation containers used for storage not incident to 
transportation, including transportation containers connected to 
equipment at a facility for loading or unloading and transportation 
containers detached from the motive power that delivered the container 
to the facility;
    (iii) Present as process intermediates, by-products, or materials 
produced incidental to the production of a product if they exist at any 
given time;
    (iv) In natural gas or liquefied natural gas stored in peak shaving 
facilities; and
    (v) In gasoline, diesel, kerosene or jet fuel (including fuels that 
have flammability hazard ratings of 1, 2, 3, or 4, as determined by 
using National Fire Protection Association (NFPA) 704: Standard System 
for the Identification of the Hazards of Materials for Emergency 
Response [2007 ed.], which is incorporated by reference at 27.204(a)(2)) 
stored in aboveground tank farms, including tank farms that are part of 
pipeline systems;
    (2) Release-toxic, release-flammable, and release-explosive 
chemicals. Except as provided in paragraph (c)(2)(i), in calculating 
whether a facility possesses an amount that meets the STQ

[[Page 217]]

for release-toxic, release-flammable, and release-explosive chemicals, a 
facility need not include release-toxic, release-flammable, or release-
explosive chemicals of interest that a facility manufactures, processes 
or uses in a laboratory at the facility under the supervision of a 
technically qualified individual as defined in 40 CFR 720.3.
    (i) This exemption does not apply to specialty chemical production; 
manufacture, processing, or use of substances in pilot plant scale 
operations; or activities, including research and development, involving 
chemicals of interest conducted outside the laboratory.
    (ii) [Reserved]
    (3) Propane. In calculating whether a facility possesses an amount 
that meets the STQ for propane, a facility need not include propane in 
tanks of 10,000 pounds or less.
    (c) Theft and diversion chemicals. In calculating whether a facility 
possesses an amount of a theft/diversion chemical of interest that meets 
the STQ, the facility shall only include theft/diversion chemicals of 
interest in a transportation packaging, as defined in 49 CFR 171.8. 
Where a theft/diversion-Chemical Weapons (CW) chemical is designated by 
``CUM 100g,'' a facility shall total the quantity of all such designated 
chemicals in its possession to determine whether the facility possesses 
theft/diversion-CW chemicals that meet or exceed the STQ of 100 grams.
    (d) Sabotage and contamination chemicals. A facility meets the STQ 
for a sabotage/contamination chemical of interest if it ships the 
chemical and is required to placard the shipment of that chemical 
pursuant to the provisions of subpart F of 49 CFR part 172.

[72 FR 65419, Nov. 20, 2007]



Sec.  27.204  Minimum concentration by security issue.

    (a) Release chemicals--(1) Release-toxic chemicals. If a release-
toxic chemical of interest is present in a mixture, and the 
concentration of the chemical is equal to or greater than one percent 
(1%) by weight, the facility shall count the amount of the chemical of 
interest in the mixture toward the STQ. If a release-toxic chemical of 
interest is present in a mixture, and the concentration of the chemical 
is less than one percent (1%) by weight of the mixture, the facility 
need not count the amount of that chemical in the mixture in determining 
whether the facility possesses the STQ. Except for oleum, if the 
concentration of the chemical of interest in the mixture is one percent 
(1%) or greater by weight, but the facility can demonstrate that the 
partial pressure of the regulated substance in the mixture (solution) 
under handling or storage conditions in any portion of the process is 
less than 10 millimeters of mercury (mm Hg), the amount of the substance 
in the mixture in that portion of a vessel need not be considered when 
determining the STQ. The facility shall document this partial pressure 
measurement or estimate.
    (2) Release-flammable chemicals. If a release-flammable chemical of 
interest is present in a mixture in a concentration equal to or greater 
than one percent (1%) by weight of the mixture, and the mixture has a 
National Fire Protection Association (NFPA) flammability hazard rating 
of 4, the facility shall count the entire amount of the mixture toward 
the STQ. Except as provided in Sec.  27.203(b)(1)(v) for fuels that are 
stored in aboveground tank farms (including farms that are part of 
pipeline systems), if a release-flammable chemical of interest is 
present in a mixture in a concentration equal to or greater than one 
percent (1%) by weight of the mixture, and the mixture has a National 
Fire Protection Association (NFPA) flammability hazard rating of 1, 2, 
or 3, the facility need not count the mixture toward the STQ. The 
flammability hazard ratings are defined in NFPA 704: Standard System for 
the Identification of the Hazards of Materials for Emergency Response 
[2007 ed.]. The Director of the Federal Register approves the 
incorporation by reference of this standard in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51. You may obtain a copy of the incorporated 
standard from the National Fire Protection Association at 1 Batterymarch 
Park, Quincy, MA 02169-

[[Page 218]]

7471 or http://www.nfpa.org. You may inspect a copy of the incorporated 
standard at the Department of Homeland Security, 1621 Kent Street, 9th 
Floor, Rosslyn VA (please call 703-235-0709) to make an appointment or 
at the or at the National Archives and Records Administration (NARA). 
For information on the availability of material at NARA, call 202-741-
6030, or go to http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html. If a release-flammable 
chemical of interest is present in a mixture, and the concentration of 
the chemical is less than one percent (1%) by weight, the facility need 
not count the mixture in determining whether the facility possesses the 
STQ.
    (3) Release-explosive chemicals. For each release-explosive chemical 
of interest, a facility shall count the total quantity of all commercial 
grades of the chemical of interest toward the STQ, unless a specific 
minimum concentration is assigned in the Minimum Concentration column of 
appendix A to part 27, in which case the facility should count the total 
quantity of all commercial grades of the chemical at the specified 
minimum concentration.
    (b) Theft and diversion chemicals. (1) Theft/Diversion-Chemical 
Weapons (CW) and Chemical Weapons Precursors (CWP Chemicals: Where a 
theft/diversion-CWC/CWP chemical of interest is not designated by ``CUM 
100g'' in appendix A, and the chemical is present in a mixture at or 
above the minimum concentration amount listed in the Minimum 
Concentration column of appendix A to part 27, the facility shall count 
the entire amount of the mixture toward the STQ.
    (2) Theft/Diversion-Weapon of Mass Effect (WME) Chemicals: If a 
theft/diversion-WME chemical of interest is present in a mixture at or 
above the minimum concentration amount listed in the Minimum 
Concentration column of appendix A to part 27, the facility shall count 
the entire amount of the mixture toward the STQ.
    (3) Theft/diversion-Explosives/Improvised Explosive Device Precursor 
(EXP/IEDP) chemicals. For each theft/diversion-EXP/IEDP chemical of 
interest, a facility shall count the total quantity of all commercial 
grades of the chemical toward the STQ, unless a specific minimum 
concentration is assigned in the Minimum Concentration column of 
appendix A to part 27, in which case the facility should count the total 
quantity of all commercial grades of the chemical at the specified 
minimum concentration.
    (c) Sabotage and contamination chemicals. For each sabotage/
contamination chemical of interest, a facility shall count the total 
quantity of all commercial grades of the chemical toward the STQ.

[72 FR 65419, Nov. 20, 2007]



Sec.  27.205  Determination that a chemical facility ``presents a high level of security risk.''

    (a) Initial determination. The Assistant Secretary may determine at 
any time that a chemical facility presents a high level of security risk 
based on any information available (including any information submitted 
to the Department under Sec.  27.200) that, in the Secretary's 
discretion, indicates the potential that a terrorist attack involving 
the facility could result in significant adverse consequences for human 
life or health, national security or critical economic assets. Upon 
determining that a facility presents a high level of security risk, the 
Department shall notify the facility in writing of such initial 
determination and may also notify the facility of the Department's 
preliminary determination of the facility's placement in a risk-based 
tier pursuant to Sec.  27.220(a).
    (b) Redetermination. If a covered facility previously determined to 
present a high level of security risk has materially altered its 
operations, it may seek a redetermination by filing a Request for 
Redetermination with the Assistant Secretary, and may request a meeting 
regarding the Request. Within 45 calendar days of receipt of such a 
Request, or within 45 calendar days of a meeting under this paragraph, 
the Assistant Secretary shall notify the covered facility in writing of 
the Department's decision on the Request for Redetermination.



Sec.  27.210  Submissions schedule.

    (a) Initial submission. The timeframes in paragraphs (a)(2) and 
(a)(3) of this

[[Page 219]]

section also apply to covered facilities that submit an Alternative 
Security Program pursuant to Sec.  27.235.
    (1) Top-Screen. Facilities shall complete and submit a Top-Screen 
within the following time frames:
    (i) Unless otherwise notified, within 60 calendar days of November 
20, 2007 for facilities that possess any of the chemicals listed in 
appendix A at or above the STQ for any applicable Security Issue, or 
within 60 calendar days for facilities that come into possession of any 
of the chemicals listed in appendix A at or above the STQ for any 
applicable Security Issue; or
    (ii) Within the time frame provided in any written notification from 
the Department or specified in any subsequent Federal Register notice.
    (2) Security Vulnerability Assessment. Unless otherwise notified, a 
covered facility must complete and submit a Security Vulnerability 
Assessment within 90 calendar days of written notification from the 
Department or within the time frame specified in any subsequent Federal 
Register notice.
    (3) Site Security Plan. Unless otherwise notified, a covered 
facility must complete and submit a Site Security Plan within 120 
calendar days of written notification from the Department or within the 
time frame specified in any subsequent Federal Register notice.
    (b) Resubmission schedule for covered facilities. The timeframes in 
this subsection also apply to covered facilities who submit an 
Alternative Security Program pursuant to Sec.  27.235.
    (1) Top-Screen. Unless otherwise notified, Tier 1 and Tier 2 covered 
facilities must complete and submit a new Top-Screen no less than two 
years, and no more than two years and 60 calendar days, from the date of 
the Department's approval of the facility's Site Security Plan; and Tier 
3 and Tier 4 covered facilities must complete and submit a Top-Screen no 
less than 3 years, and no more than 3 years and 60 calendar days, from 
the date of the Department's approval of the facility's Site Security 
Plan.
    (2) Security Vulnerability Assessment. Unless otherwise notified and 
following a Top-Screen resubmission pursuant to paragraph (b)(1) of this 
section, a covered facility must complete and submit a new Security 
Vulnerability Assessment within 90 calendar days of written notification 
from the Department or within the time frame specified in any subsequent 
Federal Register notice.
    (3) Site Security Plan. Unless otherwise notified and following a 
Security Vulnerability Assessment resubmission pursuant to paragraph 
(b)(2) of this section , a covered facility must complete and submit a 
new Site Security Plan within 120 calendar days of written notification 
from the Department or within the time frame specified in any subsequent 
Federal Register notice.
    (c) The Assistant Secretary retains the authority to modify the 
schedule in this part as needed. The Assistant Secretary may shorten or 
extend these time periods based on the operations at the facility, the 
nature of the covered facility's vulnerabilities, the level and 
immediacy of security risk, or for other reasons. If the Department 
alters the time periods for a specific facility, the Department will do 
so in written notice to the facility.
    (d) If a covered facility makes material modifications to its 
operations or site, the covered facility must complete and submit a 
revised Top-Screen to the Department within 60 days of the material 
modification. In accordance with the resubmission requirements in Sec.  
27.210(b)(2) and (3), the Department will notify the covered facility as 
to whether the covered facility must submit a revised Security 
Vulnerability Assessment, Site Security Plan, or both.

[72 FR 17729, Apr. 9, 2007, as amended at 72 FR 65420, Nov. 20, 2007]



Sec.  27.215  Security vulnerability assessments.

    (a) Initial assessment. If the Assistant Secretary determines that a 
chemical facility is high-risk, the facility must complete a Security 
Vulnerability Assessment. A Security Vulnerability Assessment shall 
include:
    (1) Asset Characterization, which includes the identification and 
characterization of potential critical assets; identification of hazards 
and consequences of concern for the facility, its surroundings, its 
identified critical

[[Page 220]]

asset(s), and its supporting infrastructure; and identification of 
existing layers of protection;
    (2) Threat Assessment, which includes a description of possible 
internal threats, external threats, and internally-assisted threats;
    (3) Security Vulnerability Analysis, which includes the 
identification of potential security vulnerabilities and the 
identification of existing countermeasures and their level of 
effectiveness in both reducing identified vulnerabilities and in meeting 
the applicable Risk-Based Performance Standards;
    (4) Risk Assessment, including a determination of the relative 
degree of risk to the facility in terms of the expected effect on each 
critical asset and the likelihood of a success of an attack; and
    (5) Countermeasures Analysis, including strategies that reduce the 
probability of a successful attack or reduce the probable degree of 
success, strategies that enhance the degree of risk reduction, the 
reliability and maintainability of the options, the capabilities and 
effectiveness of mitigation options, and the feasibility of the options.
    (b) Except as provided in Sec.  27.235, a covered facility must 
complete the Security Vulnerability Assessment through the CSAT process, 
or through any other methodology or process identified or issued by the 
Assistant Secretary.
    (c) Covered facilities must submit a Security Vulnerability 
Assessment to the Department in accordance with the schedule provided in 
Sec.  27.210.
    (d) Updates and revisions. (1) A covered facility must update and 
revise its Security Vulnerability Assessment in accordance with the 
schedule provided in Sec.  27.210.
    (2) Notwithstanding paragraph (d)(1) of this section, a covered 
facility must update, revise or otherwise alter its Security 
Vulnerability Assessment to account for new or differing modes of 
potential terrorist attack or for other security-related reasons, if 
requested by the Assistant Secretary.



Sec.  27.220  Tiering.

    (a) Preliminary determination of risk-based tiering. Based on the 
information the Department receives in accordance with Sec. Sec.  27.200 
and 27.205 (including information submitted through the Top-Screen 
process) and following its initial determination in Sec.  27.205(a) that 
a facility presents a high level of security risk, the Department shall 
notify a facility of the Department's preliminary determination of the 
facility's placement in a risk-based tier.
    (b) Confirmation or alteration of risk-based tiering. Following 
review of a covered facility's Security Vulnerability Assessment, the 
Assistant Secretary shall notify the covered facility of its final 
placement within a risk-based tier, or for covered facilities previously 
notified of a preliminary tiering, confirm or alter such tiering.
    (c) The Department shall place covered facilities in one of four 
risk-based tiers, ranging from highest risk facilities in Tier 1 to 
lowest risk facilities in Tier 4.
    (d) The Assistant Secretary may provide the facility with guidance 
regarding the risk-based performance standards and any other necessary 
guidance materials applicable to its assigned tier.



Sec.  27.225  Site security plans.

    (a) The Site Security Plan must meet the following standards:
    (1) Address each vulnerability identified in the facility's Security 
Vulnerability Assessment, and identify and describe the security 
measures to address each such vulnerability;
    (2) Identify and describe how security measures selected by the 
facility will address the applicable risk-based performance standards 
and potential modes of terrorist attack including, as applicable, 
vehicle-borne explosive devices, water-borne explosive devices, ground 
assault, or other modes or potential modes identified by the Department;
    (3) Identify and describe how security measures selected and 
utilized by the facility will meet or exceed each applicable performance 
standard for the appropriate risk-based tier for the facility; and

[[Page 221]]

    (4) Specify other information the Assistant Secretary deems 
necessary regarding chemical facility security.
    (b) Except as provided in Sec.  27.235, a covered facility must 
complete the Site Security Plan through the CSAT process, or through any 
other methodology or process identified or issued by the Assistant 
Secretary.
    (c) Covered facilities must submit a Site Security Plan to the 
Department in accordance with the schedule provided in Sec.  27.210.
    (d) Updates and revisions. (1) When a covered facility updates, 
revises or otherwise alters its Security Vulnerability Assessment 
pursuant to Sec.  27.215(d), the covered facility shall make 
corresponding changes to its Site Security Plan.
    (2) A covered facility must also update and revise its Site Security 
Plan in accordance with the schedule in Sec.  27.210.
    (e) A covered facility must conduct an annual audit of its 
compliance with its Site Security Plan.



Sec.  27.230  Risk-based performance standards.

    (a) Covered facilities must satisfy the performance standards 
identified in this section. The Assistant Secretary will issue guidance 
on the application of these standards to risk-based tiers of covered 
facilities, and the acceptable layering of measures used to meet these 
standards will vary by risk-based tier. Each covered facility must 
select, develop in their Site Security Plan, and implement appropriately 
risk-based measures designed to satisfy the following performance 
standards:
    (1) Restrict area perimeter. Secure and monitor the perimeter of the 
facility;
    (2) Secure site assets. Secure and monitor restricted areas or 
potentially critical targets within the facility;
    (3) Screen and control access. Control access to the facility and to 
restricted areas within the facility by screening and/or inspecting 
individuals and vehicles as they enter, including,
    (i) Measures to deter the unauthorized introduction of dangerous 
substances and devices that may facilitate an attack or actions having 
serious negative consequences for the population surrounding the 
facility; and
    (ii) Measures implementing a regularly updated identification system 
that checks the identification of facility personnel and other persons 
seeking access to the facility and that discourages abuse through 
established disciplinary measures;
    (4) Deter, detect, and delay. Deter, detect, and delay an attack, 
creating sufficient time between detection of an attack and the point at 
which the attack becomes successful, including measures to:
    (i) Deter vehicles from penetrating the facility perimeter, gaining 
unauthorized access to restricted areas or otherwise presenting a hazard 
to potentially critical targets;
    (ii) Deter attacks through visible, professional, well maintained 
security measures and systems, including security personnel, detection 
systems, barriers and barricades, and hardened or reduced value targets;
    (iii) Detect attacks at early stages, through countersurveillance, 
frustration of opportunity to observe potential targets, surveillance 
and sensing systems, and barriers and barricades; and
    (iv) Delay an attack for a sufficient period of time so to allow 
appropriate response through on-site security response, barriers and 
barricades, hardened targets, and well-coordinated response planning;
    (5) Shipping, receipt, and storage. Secure and monitor the shipping, 
receipt, and storage of hazardous materials for the facility;
    (6) Theft and diversion. Deter theft or diversion of potentially 
dangerous chemicals;
    (7) Sabotage. Deter insider sabotage;
    (8) Cyber. Deter cyber sabotage, including by preventing 
unauthorized onsite or remote access to critical process controls, such 
as Supervisory Control and Data Acquisition (SCADA) systems, Distributed 
Control Systems (DCS), Process Control Systems (PCS), Industrial Control 
Systems (ICS), critical business system, and other sensitive 
computerized systems;
    (9) Response. Develop and exercise an emergency plan to respond to 
security incidents internally and with assistance of local law 
enforcement and first responders;

[[Page 222]]

    (10) Monitoring. Maintain effective monitoring, communications and 
warning systems, including,
    (i) Measures designed to ensure that security systems and equipment 
are in good working order and inspected, tested, calibrated, and 
otherwise maintained;
    (ii) Measures designed to regularly test security systems, note 
deficiencies, correct for detected deficiencies, and record results so 
that they are available for inspection by the Department; and
    (iii) Measures to allow the facility to promptly identify and 
respond to security system and equipment failures or malfunctions;
    (11) Training. Ensure proper security training, exercises, and 
drills of facility personnel;
    (12) Personnel surety. Perform appropriate background checks on and 
ensure appropriate credentials for facility personnel, and as 
appropriate, for unescorted visitors with access to restricted areas or 
critical assets, including,
    (i) Measures designed to verify and validate identity;
    (ii) Measures designed to check criminal history;
    (iii) Measures designed to verify and validate legal authorization 
to work; and
    (iv) Measures designed to identify people with terrorist ties;
    (13) Elevated threats. Escalate the level of protective measures for 
periods of elevated threat;
    (14) Specific threats, vulnerabilities, or risks. Address specific 
threats, vulnerabilities or risks identified by the Assistant Secretary 
for the particular facility at issue;
    (15) Reporting of significant security incidents. Report significant 
security incidents to the Department and to local law enforcement 
officials;
    (16) Significant security incidents and suspicious activities. 
Identify, investigate, report, and maintain records of significant 
security incidents and suspicious activities in or near the site;
    (17) Officials and organization. Establish official(s) and an 
organization responsible for security and for compliance with these 
standards;
    (18) Records. Maintain appropriate records; and
    (19) Address any additional performance standards the Assistant 
Secretary may specify.
    (b) [Reserved]



Sec.  27.235  Alternative security program.

    (a) Covered facilities may submit an Alternate Security Program 
(ASP) pursuant to the requirements of this section. The Assistant 
Secretary may approve an Alternate Security Program, in whole, in part, 
or subject to revisions or supplements, upon a determination that the 
Alternate Security Program meets the requirements of this part and 
provides for an equivalent level of security to that established by this 
part.
    (1) A Tier 4 facility may submit an ASP in lieu of a Security 
Vulnerability Assessment, Site Security Plan, or both.
    (2) Tier 1, Tier 2, or Tier 3 facilities may submit an ASP in lieu 
of a Site Security Plan. Tier 1, Tier 2, and Tier 3 facilities may not 
submit an ASP in lieu of a Security Vulnerability Assessment.
    (b) The Department will provide notice to a covered facility about 
the approval or disapproval, in whole or in part, of an ASP, using the 
procedure specified in Sec.  27.240 if the ASP is intended to take the 
place of a Security Vulnerability Assessment or using the procedure 
specified in Sec.  27.245 if the ASP is intended to take the place of a 
Site Security Plan.



Sec.  27.240  Review and approval of security vulnerability assessments.

    (a) Review and approval. The Department will review and approve in 
writing all Security Vulnerability Assessments that satisfy the 
requirements of Sec.  27.215, including Alternative Security Programs 
submitted pursuant to Sec.  27.235.
    (b) If a Security Vulnerability Assessment does not satisfy the 
requirements of Sec.  27.215, the Department will provide the facility 
with a written notification that includes a clear explanation of 
deficiencies in the Security Vulnerability Assessment. The facility 
shall then enter further consultations with the Department and resubmit 
a

[[Page 223]]

sufficient Security Vulnerability Assessment by the time specified in 
the written notification provided by the Department under this section. 
If the resubmitted Security Vulnerability Assessment does not satisfy 
the requirements of Sec.  27.215, the Department will provide the 
facility with written notification (including a clear explanation of 
deficiencies in the SVA) of the Department's disapproval of the SVA.



Sec.  27.245  Review and approval of site security plans.

    (a) Review and approval. (1) The Department will review and approve 
or disapprove all Site Security Plans that satisfy the requirements of 
Sec.  27.225, including Alternative Security Programs submitted pursuant 
to Sec.  27.235.
    (i) The Department will review Site Security Plans through a two-
step process. Upon receipt of Site Security Plan from the covered 
facility, the Department will review the documentation and make a 
preliminary determination as to whether it satisfies the requirements of 
Sec.  27.225. If the Department finds that the requirements are 
satisfied, the Department will issue a Letter of Authorization to the 
covered facility.
    (ii) Following issuance of the Letter of Authorization, the 
Department will inspect the covered facility in accordance with Sec.  
27.250 for purposes of determining compliance with the requirements of 
this part.
    (iii) If the Department approves the Site Security Plan in 
accordance with Sec.  27.250, the Department will issue a Letter of 
Approval to the facility, and the facility shall implement the approved 
Site Security Plan.
    (2) The Department will not disapprove a Site Security Plan 
submitted under this part based on the presence or absence of a 
particular security measure. The Department may disapprove a Site 
Security Plan that fails to satisfy the risk-based performance standards 
established in Sec.  27.230.
    (b) When the Department disapproves a preliminary Site Security Plan 
issued prior to inspection or a Site Security Plan following inspection, 
the Department will provide the facility with a written notification 
that includes a clear explanation of deficiencies in the Site Security 
Plan. The facility shall then enter further consultations with the 
Department and resubmit a sufficient Site Security Plan by the time 
specified in the written notification provided by the Department under 
this section. If the resubmitted Site Security Plan does not satisfy the 
requirements of Sec.  27.225, the Department will provide the facility 
with written notification (including a clear explanation of deficiencies 
in the SSP) of the Department's disapproval of the SSP.



Sec.  27.250  Inspections and audits.

    (a) Authority. In order to assess compliance with the requirements 
of this part, authorized Department officials may enter, inspect, and 
audit the property, equipment, operations, and records of covered 
facilities.
    (b) Following preliminary approval of a Site Security Plan in 
accordance with Sec.  27.245, the Department will inspect the covered 
facility for purposes of determining compliance with the requirements of 
this part.
    (1) If after the inspection, the Department determines that the 
requirements of Sec.  27.225 have been met, the Department will issue a 
Letter of Approval to the covered facility.
    (2) If after the inspection, the Department determines that the 
requirements of Sec.  27.225 have not been met, the Department will 
proceed as directed by Sec.  27.245(b) in ``Review and Approval of Site 
Security Plans.''
    (c) Time and manner. Authorized Department officials will conduct 
audits and inspections at reasonable times and in a reasonable manner. 
The Department will provide covered facility owners and/or operators 
with 24-hour advance notice before inspections, except
    (1) If the Under Secretary or Assistant Secretary determines that an 
inspection without such notice is warranted by exigent circumstances and 
approves such inspection; or
    (2) If any delay in conducting an inspection might be seriously 
detrimental to security, and the Director of the Chemical Security 
Division determines that an inspection without notice is warranted, and 
approves an inspector to conduct such inspection.

[[Page 224]]

    (d) Inspectors. Inspections and audits are conducted by personnel 
duly authorized and designated for that purpose as ``inspectors'' by the 
Secretary or the Secretary's designee.
    (1) An inspector will, on request, present his or her credentials 
for examination, but the credentials may not be reproduced by the 
facility.
    (2) An inspector may administer oaths and receive affirmations, with 
the consent of any witness, in any matter.
    (3) An inspector may gather information by reasonable means 
including, but not limited to, interviews, statements, photocopying, 
photography, and video- and audio-recording. All documents, objects and 
electronically stored information collected by each inspector during the 
performance of that inspector's duties shall be maintained for a 
reasonable period of time in the files of the Department of Homeland 
Security maintained for that facility or matter.
    (4) An inspector may request forthwith access to all records 
required to be kept pursuant to Sec.  27.255. An inspector shall be 
provided with the immediate use of any photocopier or other equipment 
necessary to copy any such record. If copies can not be provided 
immediately upon request, the inspector shall be permitted immediately 
to take the original records for duplication and prompt return.
    (e) Confidentiality. In addition to the protections provided under 
CVI in Sec.  27.400, information received in an audit or inspection 
under this section, including the identity of the persons involved in 
the inspection or who provide information during the inspection, shall 
remain confidential under the investigatory file exception, or other 
appropriate exception, to the public disclosure requirements of 5 U.S.C. 
552.
    (f) Guidance. The Assistant Secretary shall issue guidance 
identifying appropriate processes for such inspections, and specifying 
the type and nature of documentation that must be made available for 
rev