Rule2021-17004
Privacy Act of 1974: Implementation of Exemptions; U.S. Department of Homeland Security/ALL-046 Counterintelligence Program System of Records
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 13, 2021
Effective
August 13, 2021
Issuing agencies
Homeland Security Department
Abstract
The U.S. Department of Homeland Security (DHS) is issuing a final rule to amend its regulations to exempt portions of a newly established system of records titled, "DHS/ALL-046 Counterintelligence Program System of Records" from certain provisions of the Privacy Act. Specifically, the Department exempts portions from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
Full Text
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<title>Federal Register, Volume 86 Issue 154 (Friday, August 13, 2021)</title>
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[Federal Register Volume 86, Number 154 (Friday, August 13, 2021)]
[Rules and Regulations]
[Pages 44574-44575]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17004]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2021-0028]
Privacy Act of 1974: Implementation of Exemptions; U.S.
Department of Homeland Security/ALL-046 Counterintelligence Program
System of Records
AGENCY: U.S. Department of Homeland Security.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Homeland Security (DHS) is issuing a
final rule to amend its regulations to exempt portions of a newly
established system of records titled, ``DHS/ALL-046 Counterintelligence
Program System of Records'' from certain provisions of the Privacy Act.
Specifically, the Department exempts portions from one or more
provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements.
DATES: This final rule is effective August 13, 2021.
FOR FURTHER INFORMATION CONTACT: For privacy questions please contact:
Lynn Parker Dupree, (202) 343-1756, <a href="/cdn-cgi/l/email-protection#1b4b69726d7a78625b736a357f7368357c746d"><span class="__cf_email__" data-cfemail="7a2a08130c1b19033a120b541e1209541d150c">[email protected]</span></a>, Chief Privacy
Officer, Privacy Office, U.S. Department of Homeland Security,
Washington, DC 20528-0655.
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. Department of Homeland Security (DHS) published a notice
of proposed rulemaking in the Federal Register, 85 FR 80667 (December
14, 2020), proposing to exempt portions of the system of records from
one or more provisions of the Privacy Act because of criminal, civil,
and administrative enforcement requirements. In concert with that
rulemaking, DHS issued a new system of records notice, ``DHS/ALL-046
Counterintelligence Program System of Records'' in the Federal
Register, 85 FR 80800 (December 14, 2020), outlining that DHS will
collect and maintain records as part of the unified Counterintelligence
Program across the Department.
DHS invited comments on both the Notice of Proposed Rulemaking
(NPRM) and System of Records Notice (SORN).
II. Public Comments
DHS received no comments on the NPRM and comments from one
organization on the SORN.
SORN
DHS received comments suggesting that (1) the scope of the proposed
records system is broad and DHS components' access to records covered
by the Counterintelligence Program System of Records create the risk
that components would use the records system in ways that exceed their
stated missions; (2) the proposed routine use exemptions are not
narrowly tailored to the defined purpose of the SORN for which the
records are collected, would be used to disclose records to foreign and
private entities that are not subject to the Privacy Act, and would
create substantial risks for potential data breaches; (3) the
Counterintelligence Program System of Records creates a substantial
risk of data breach since the Federal Government has demonstrated it is
incapable of handling and safeguarding sensitive information; and (4)
the proposed exemptions are unnecessary and limit individuals' ability
to correct harmful errors, thwart DHS's public notice obligations, and
permit unlimited data collection, even if unnecessary and irrelevant.
After full consideration of public comments, the Department will
implement the rulemaking as proposed for the reasons described in the
NPRM and as described here in the final rule.
List of Subjects in 6 CFR Part 5
Freedom of information, Privacy.
For the reasons stated in the preamble, DHS amends Chapter I of
Title 6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
0
1. The authority citation for part 5 continues to read as follows:
Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat.
2135; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
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2. Amend Appendix C to Part 5 by adding paragraph 83 to read as
follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
83. The Department of Homeland Security (DHS)/ALL-046
Counterintelligence Program System of Records consists of electronic
and paper records and will be used by DHS and its components. The
DHS/ALL-046 Counterintelligence Program System of Records is a
repository of information held by DHS in connection with its several
and varied missions and functions, including the enforcement of
civil and criminal laws; investigations, inquiries, and proceedings
there under; national security and intelligence activities; and
protection of the President of the U.S. or other individuals
pursuant to Section 3056 and 3056A of Title 18. The system of
records covers information that is collected by, on behalf of, in
support of, or in cooperation with DHS and its components and may
contain personally identifiable information collected by other
federal, state, local, tribal, foreign, or international government
agencies.
The Secretary of Homeland Security, pursuant to 5 U.S.C.
552a(j)(2), has exempted this system from the following provisions
of the Privacy Act, 5 U.S.C. secs. 552a(c)(3), (c)(4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8),
(e)(12); (f); and (g)(1). Additionally, the Secretary of Homeland
Security, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5), has
exempted this system from the following provisions of the Privacy
Act: 5 U.S.C. secs. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I); and (f). Exemptions from these particular subsections are
justified, on a case-by-case basis to be determined at the time a
request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation to the existence of that
investigation and reveal investigative interest on the part of DHS
as well as the recipient agency. Disclosure of the accounting would
therefore present a serious impediment to law enforcement efforts
and/or efforts to preserve national security. Disclosure of the
accounting would also permit the individual who is the subject of a
record to impede the investigation, to tamper with witnesses or
evidence, and to avoid detection or apprehension, which would
undermine the entire investigative process.
(b) From subsection (d) (Access and Amendment to Records)
because access to the records contained in this system of
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records could inform the subject of an investigation of an actual or
potential criminal, civil, or regulatory violation to the existence
of that investigation and reveal investigative interest on the part
of DHS or another agency. Access to the records could permit the
individual who is the subject of a record to impede the
investigation, to tamper with witnesses or evidence, and to avoid
detection or apprehension. Amendment of the records could interfere
with ongoing investigations and law enforcement activities. Further,
permitting amendment to counterintelligence records after an
investigation has been completed would impose an unmanageable
administrative burden. In addition, permitting access and amendment
to such information could disclose security-sensitive information
that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of federal law, the accuracy of information obtained or
introduced occasionally may be unclear, or the information may not
be strictly relevant or necessary to a specific investigation. In
the interests of effective law enforcement, it is appropriate to
retain all information that may aid in establishing patterns of
unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject to the
nature or existence of the investigation, thereby interfering with
that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information could impede law enforcement by
compromising the existence of a confidential investigation or reveal
the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency
Requirements) and (f) (Agency Rules), because portions of this
system are exempt from the individual access provisions of
subsection (d) for the reasons noted above, and therefore DHS is not
required to establish requirements, rules, or procedures with
respect to such access. Providing notice to individuals with respect
to existence of records pertaining to them in the system of records
or otherwise setting up procedures pursuant to which individuals may
access and view records pertaining to themselves in the system would
undermine investigative efforts and reveal the identities of
witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because
with the collection of information for law enforcement purposes, it
is impossible to determine in advance what information is accurate,
relevant, timely, and complete.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS's ability to obtain, serve, and
issue subpoenas, warrants, and other law enforcement mechanisms that
may be filed under seal and could result in disclosure of
investigative techniques, procedures, and evidence.
(i) From subsection (e)(12) (Matching Agreements) because
requiring DHS to provide notice of a new or revised matching
agreement with a non-Federal agency, if one existed, would impair
DHS operations by indicating which data elements and information are
valuable to DHS's analytical functions, thereby providing harmful
disclosure of information to individuals who would seek to
circumvent or interfere with DHS's missions.
(j) From subsection (g)(1) (Civil Remedies) to the extent that
the system is exempt from other specific subsections of the Privacy
Act.
Lynn Parker Dupree,
Chief Privacy Officer, U.S. Department of Homeland Security.
[FR Doc. 2021-17004 Filed 8-12-21; 8:45 am]
BILLING CODE 9110-9N-P
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