NPRM Privacy Act Exemptions to SORN

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Proposed Rules

Federal Register
Vol. 76, No. 114
Tuesday, June 14, 2011

This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.

DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2011–0033]

Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security/National Protection and
Programs Directorate—002 Chemical
Facility Anti-Terrorism Standards
Personnel Surety Program System of
Records
Privacy Office, DHS.
Notice of proposed rulemaking.

AGENCY:
ACTION:

The Department of Homeland
Security is giving concurrent notice of a
newly established system of records
pursuant to the Privacy Act of 1974 for
the Department of Homeland Security/
National Protection and Programs
Directorate—002 Chemical Facility
Anti-Terrorism Standards Personnel
Surety Program System of Records and
this proposed rulemaking. In this
proposed rulemaking, the Department
proposes 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.
DATES: Comments must be received on
or before July 14, 2011.
ADDRESSES: You may submit comments,
identified by docket number DHS–
2011–0033, by one of the following
methods:
• Federal e-Rulemaking Portal:
http://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 703–483–2999.
• Mail: Mary Ellen Callahan, Chief
Privacy Officer, Privacy Office,
Department of Homeland Security,
Washington, DC 20528.
• Instructions: All submissions
received must include the agency name
and docket number for this rulemaking.
All comments received will be posted
without change to http://

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www.regulations.gov, including any
personal information provided.
• Docket: For access to the docket to
read background documents or
comments received go to http://
www.regulations.gov.
Instructions: All submissions received
must include the agency name and
docket number for this notice. All
comments received will be posted
without change to http://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to
read background documents or
comments received, go to http://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For
general questions please contact: Emily
Andrew (703–235–2182), Privacy
Officer, National Protection and
Programs Directorate, Department of
Homeland Security, Washington, DC
20528. For privacy issues please
contact: Mary Ellen Callahan (703–235–
0780), Chief Privacy Officer, Privacy
Office, Department of Homeland
Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of
1974, 5 U.S.C. 552a, the Department of
Homeland Security (DHS)/National
Protection and Programs Directorate
(NPPD) proposes to establish a DHS
system of records titled, ‘‘DHS/NPPD—
002 Chemical Facility Anti-Terrorism
Standards Personnel Surety Program
System of Records.’’
On October 4, 2006, the President
signed the DHS Appropriations Act of
2007 (the Act), Public Law 109–295.
Section 550 of the Act (Section 550)
provides DHS with the authority to
regulate the security of high-risk
chemical facilities. DHS has
promulgated regulations implementing
Section 550, the Chemical Facility AntiTerrorism Standards (CFATS), 6 CFR
part 27.
Section 550 requires that DHS
establish Risk Based Performance
Standards (RBPS) as part of CFATS.
RBPS–12 (6 CFR 27.230(a)(12)(iv))
requires that regulated chemical
facilities implement ‘‘measures
designed to identify people with
terrorist ties.’’ The ability to identify
individuals with terrorist ties is an
inherently governmental function and
requires the use of information held in

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government-maintained databases,
which are unavailable to high-risk
chemical facilities. Therefore, DHS is
implementing the CFATS Personnel
Surety Program, which will allow
chemical facilities to comply with
RBPS–12 by implementing ‘‘measures
designed to identify people with
terrorist ties.’’
The CFATS Personnel Surety Program
will work with the DHS Transportation
Security Administration (TSA) to
identify individuals who have terrorist
ties by vetting information submitted by
each high-risk chemical facility against
the Terrorist Screening Database
(TSDB). The TSDB is the Federal
government’s consolidated and
integrated terrorist watchlist of known
and suspected terrorists, maintained by
the Department of Justice (DOJ) Federal
Bureau of Investigation’s (FBI) Terrorist
Screening Center (TSC). For more
information on the TSDB, see DOJ/FBI—
019 Terrorist Screening Records System,
72 FR 47073 (August 22, 2007).
High-risk chemical facilities or their
designees will submit the information
of: (1) Facility personnel who have or
are seeking access, either unescorted or
otherwise, to restricted areas or critical
assets; and (2) unescorted visitors who
have or are seeking access to restricted
areas or critical assets. These persons,
about whom high-risk chemical
facilities and facilities’ designees will
submit information to DHS, are referred
to in this notice as ‘‘affected
individuals.’’ Individual high-risk
facilities may classify particular
contractors or categories of contractors
either as ‘‘facility personnel’’ or as
‘‘visitors.’’ This determination should be
a facility-specific determination, and
should be based on facility security,
operational requirements, and business
practices.
Information will be submitted to
DHS/NPPD through the Chemical
Security Assessment Tool (CSAT), the
online data collection portal for CFATS.
The high-risk chemical facility or its
designees will submit the information of
affected individuals to DHS through
CSAT. The submitters of this
information (‘‘Submitters’’) for each
high-risk chemical facility will also
affirm, to the best of their ability, that
the information is: (1) True, correct, and
complete; and (2) collected and
submitted in compliance with the
facility’s Site Security Plan (SSP) or

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Federal Register / Vol. 76, No. 114 / Tuesday, June 14, 2011 / Proposed Rules
Alternative Security Program (ASP), as
reviewed and authorized and/or
approved in accordance with 6 CFR
27.245. The Submitter(s) of each highrisk chemical facility will also affirm
that, in accordance with their Site
Security Plans, notice required by the
Privacy Act of 1974, 5 U.S.C. § 552a, has
been given to affected individuals before
their information is submitted to DHS.
DHS will send a verification of receipt
to the Submitter(s) of each high-risk
chemical facility when a high-risk
chemical facility: (1) Submits
information about an affected individual
for the first time; (2) submits additional,
updated, or corrected information about
an affected individual; and/or (3)
notifies DHS that an affected individual
no longer has or is seeking access to that
facility’s restricted areas or critical
assets.
Upon receipt of each affected
individual’s information in CSAT, DHS/
NPPD will send a copy of the
information to DHS/TSA. Within DHS/
TSA, the Office of Transportation Threat
Assessment and Credentialing (TTAC)
conducts vetting against the TSDB for
several DHS programs. DHS/TSA/TTAC
will compare the information of affected
individuals collected by DHS (via
CSAT) to information in the TSDB.
DHS/TSA/TTAC will forward potential
matches to the DOJ/FBI/TSC, which will
make a final determination of whether
an individual’s information is identified
as a match to a record in the TSDB.
In certain instances, DHS/NPPD may
contact a high-risk chemical facility to
request additional information (e.g., visa
information) pertaining to particular
individuals in order to clarify suspected
data errors or resolve potential matches
(e.g., in situations where an affected
individual has a common name). Such
requests will not imply, and should not
be construed to indicate, that an
individual’s information has been
confirmed as a match to a TSDB record.
DHS/NPPD may also conduct data
accuracy reviews and audits as part of
the CFATS Personnel Surety Program.
Such reviews may be conducted on
random samples of affected individuals.
To assist with this activity, DHS/NPPD
may request information pertaining to
affected individuals, previously
provided to DHS/NPPD by high-risk
chemical facilities, in order to confirm
the accuracy of that information.
Consistent with the Department’s
information sharing mission,
information stored in the DHS/NPPD—
002 Chemical Facility Anti-Terrorism
Standards Personnel Surety Program
System of Records may be shared with
other DHS components, as well as
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foreign, or international government
agencies. This sharing will only take
place after DHS determines that the
receiving component or agency has a
need to know the information to carry
out national security, law enforcement,
immigration, intelligence, or other
functions consistent with the routine
uses set forth in this system of records
notice.
II. Privacy Act
The Privacy Act embodies fair
information principles in a statutory
framework governing the means by
which the United States government
collects, maintains, uses, and
disseminates personally identifiable
information. The Privacy Act applies to
information that is maintained in a
‘‘system of records.’’ A ‘‘system of
records’’ is a group of any records under
the control of an agency from which
information is retrieved by the name of
the individual or by some identifying
number, symbol, or other identifying
particular assigned to the individual.
Individuals may request their own
records that are maintained in a system
of records in the possession or under the
control of DHS by complying with DHS
Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires each agency
to publish in the Federal Register a
description denoting of the type and
character of each system of records that
the agency maintains, and the routine
uses made of records in each system.
These requirements exist in order to
make agency recordkeeping practices
transparent, to notify individuals
regarding the uses to which personally
identifiable information is put, and to
assist individuals in finding records
containing information about them.
The Privacy Act allows government
agencies to exempt certain records from
the access and amendment provisions of
the Privacy Act. If an agency claims
exemptions from Privacy Act
requirements, however, it must issue a
Notice of Proposed Rulemaking
(NPRM), followed by a Final
Rulemaking, to make clear to the public
the reasons for claiming particular
exemptions.
DHS is claiming exemptions from
certain requirements of the Privacy Act
for the DHS/NPPD—002 Chemical
Facility Anti-Terrorism Standards
Personnel Surety Program System of
Records. Some information in the DHS/
NPPD—002 Chemical Facility AntiTerrorism Standards Personnel Surety
Program System of Records may contain
records or information recompiled from
or created from information contained
in the DOJ/FBI—019 Terrorist Screening
Records System, 72 FR 47073 (August

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22, 2007). Therefore, some information
contained in the DHS/NPPD—002
Chemical Facility Anti-Terrorism
Standards Personnel Surety Program
System of Records relates to national
security, law enforcement, and
intelligence. These exemptions are
needed to protect this information from
disclosure to subjects or others related
to these activities. Specifically, the
exemptions are required to preclude
subjects of these activities from
frustrating these activities; to avoid
disclosure of activity techniques; to
protect the identities and physical safety
of confidential informants and law
enforcement personnel; to ensure the
Department’s ability to obtain
information from third parties and other
sources; to protect the privacy of third
parties; to safeguard classified
information; and to safeguard records.
Disclosure of information to the subject
of an inquiry could also permit the
subject to avoid detection or
apprehension.
The exemptions proposed here are
standard law enforcement and national
security exemptions exercised by a large
number of Federal law enforcement and
intelligence agencies. In appropriate
circumstances, where compliance
would not appear to interfere with or
adversely affect the law enforcement
purposes of this system and the overall
law enforcement process, the applicable
exemptions may be waived on a case by
case basis.
A system of records notice for the
DHS/NPPD—002 Chemical Facility
Anti-Terrorism Standards Personnel
Surety Program System of Records is
also published in this issue of the
Federal Register.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
For the reasons stated in the
preamble, DHS proposes to amend
Chapter I of Title 6, Code of Federal
Regulations, as follows:
PART 5—DISCLOSURE OF RECORDS
AND INFORMATION
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.

2. Add at the end of Appendix C to
Part 5, the following new paragraph
‘‘<54>’’:
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
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<54>. 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. 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 there under; 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 is
publishing a notice of proposed rulemaking,
proposing to exempt this system from the
following provisions of the Privacy Act,
subject to the limitation 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
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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.
Dated: June 6, 2011.
Mary Ellen Callahan
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. 2011–14386 Filed 6–13–11; 8:45 am]
BILLING CODE 9110–9P–P

DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 987
[Doc. No. AMS–FV–10–0025; FV10–987–1
PR]

Domestic Dates Produced or Packed in
Riverside County, CA; Proposed
Amendments to Marketing Order
Agricultural Marketing Service,
USDA.
ACTION: Proposed rule.
AGENCY:

Five amendments to
Marketing Agreement and Order No.987

SUMMARY:

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which regulates the handling of
domestic dates produced or packed in
Riverside County, California, were
proposed by the California Date
Administrative Committee (CDAC or
committee), which is responsible for
local administration of the order. These
proposed amendments are intended to
improve administration of and
compliance with the order and reflect
current industry practices.
In addition to the committee’s
proposals, the Agricultural Marketing
Service (AMS) proposes to further
amend the order by providing for a
continuance referendum every six years,
and by establishing term limits of up to
six consecutive years for committee
members. These proposals would allow
producers to indicate continued support
for the order and provide all interested
industry members the opportunity to
serve on the committee.
DATES: Comments must be received by
July 14, 2011.
ADDRESSES: Written comments should
be submitted to the Docket Clerk,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; Fax: (202) 720–8938; or
Internet: http://www.regulations.gov. All
comments should reference the
document number and the date and
page number of this issue of the Federal
Register. All comments submitted in
response to this proposed rule will be
included in the record and will be made
available for public inspection in the
Office of the Docket Clerk during regular
business hours, or can be viewed at:
http://www.regulations.gov. Please be
advised that the identity of the
individuals or entities submitting the
comments will be made public on the
Internet at the address provided above.
To the extent practicable, all
documents filed with the Docket Clerk
should also be submitted electronically
to Laurel May at the e-mail address
noted for her in the FOR FURTHER
INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Laurel May, Senior Marketing
Specialist, or Kathleen Finn,
Rulemaking Team Program Manager,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA; 1400 Independence
Avenue, SW., Stop 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or E-mail:
[email protected] or
[email protected].
Small businesses may request
information on complying with this
regulation by contacting Antoinette

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