Privacy Act of 1974: Implementation of Exemptions; DHS/CBP-010 Persons Engaged in International Trade in Customs and Border Protection Licensed/Regulated Activities, 77541-77543 [E8-29878]
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Federal Register / Vol. 73, No. 245 / Friday, December 19, 2008 / Proposed Rules
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.
Dated: December 10, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E8–29877 Filed 12–18–08; 8:45 am]
BILLING CODE 4410–10–P
DEPARTMENT OF HOMELAND
SECURITY
Office of Security
[Docket No. DHS–2008–0172]
Privacy Act of 1974: Implementation of
Exemptions; DHS/CBP—010 Persons
Engaged in International Trade in
Customs and Border Protection
Licensed/Regulated Activities
Privacy Office, DHS.
Notice of proposed rulemaking.
AGENCY:
SUMMARY: The Department of Homeland
Security (DHS) is giving concurrent
notice of a revised and updated system
of records pursuant to the Privacy Act
of 1974 for the U.S. Customs and Border
Protection Persons Engaged in
International Trade in Customs and
Border Protection—010 Licensed/
Regulated Activities 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
VerDate Aug<31>2005
14:41 Dec 18, 2008
FOR FURTHER INFORMATION CONTACT: For
general questions please contact:
Laurence E. Castelli (202–325–0280),
Chief, Privacy Act Policy and
Procedures Branch, U.S. Customs and
Border Protection, Office of
International Trade, Regulations &
Rulings, Mint Annex, 799 Ninth Street,
NW., Washington, DC 20001–4501. For
privacy issues contact: Hugo Teufel III
(703–235–0780), Chief Privacy Officer,
Privacy Office, U.S. Department of
Homeland Security, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
6 CFR Part 5
ACTION:
provisions of the Privacy Act because of
criminal, civil, and administrative
enforcement requirements.
DATES: Comments must be received on
or before January 20, 2009.
ADDRESSES: You may submit comments,
identified by docket number DHS–
2008–0172, by one of the following
methods:
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 1–866–466–5370.
• Mail: Hugo Teufel III, Chief Privacy
Officer, Department of Homeland
Security, Washington, DC 20528.
Instructions: All submissions received
must include the agency name and
docket number for this notice. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
Jkt 217001
Background: Pursuant to the savings
clause in the Homeland Security Act of
2002, Public Law 107–296, Section
1512, 116 Stat. 2310 (November 25,
2002), the Department of Homeland
Security (DHS)/U.S. Customs and
Border Protection (CBP) have relied on
preexisting Privacy Act systems of
records notices for the collection and
maintenance of records pertaining to
persons engaged in international trade
in CBP licensed/regulated activities.
As part of its efforts to streamline and
consolidate its record systems, DHS is
establishing a component system of
records under the Privacy Act (5 U.S.C.
552a) for DHS/CBP that deals with
persons engaged in international trade
in CBP licensed/regulated activities.
This record system is titled, U.S.
Customs and Border Protection Persons
Engaged in International Trade in CBP
Licensed/Regulated Activities. This
system will be used by DHS/CBP to
collect and maintain records on persons
PO 00000
Frm 00006
Fmt 4702
Sfmt 4702
77541
engaged in international trade in CBP
licensed/regulated activities.
In this notice of proposed rulemaking,
DHS now is proposing to exempt
Persons Engaged in International Trade
in CBP Licensed/Regulated Activities,
in part, from certain provisions of the
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 of the type and character of
each system of records that the agency
maintains, and the routine uses that are
contained in each system 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 such files
within the agency.
The Privacy Act allows Government
agencies to exempt certain records from
the access and amendment provisions. If
an agency claims an exemption,
however, it must issue a Notice of
Proposed Rulemaking to make clear to
the public the reasons why a particular
exemption is claimed.
DHS is claiming exemptions from
certain requirements of the Privacy Act
for Persons Engaged in International
Trade in CBP Licensed/Regulated
Activities. Some information in Persons
Engaged in International Trade in CBP
Licensed/Regulated Activities relates to
official DHS national security, law
enforcement, immigration, and
intelligence activities. These
exemptions are needed to protect
information relating to DHS activities
from disclosure to subjects or others
related to these activities. Specifically,
the exemptions are required to preclude
subjects of these activities from
frustrating these processes; to avoid
disclosure of activity techniques; to
protect the identities and physical safety
of confidential informants and law
enforcement personnel; to ensure DHS’s
E:\FR\FM\19DEP1.SGM
19DEP1
77542
Federal Register / Vol. 73, No. 245 / Friday, December 19, 2008 / Proposed Rules
ability to obtain information from third
parties and other sources; and to protect
the privacy of third parties; to safeguard
classified information. Disclosure of
information to the subject of the 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 notice of system of records for
Persons Engaged in International Trade
in CBP Licensed/Regulated Activities 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: Public Law 107–296, 116 Stat.
2135, 6 U.S.C. 101 et seq.; 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, Exemption of Record Systems
under the Privacy Act, the following
new paragraph ‘‘14’’:
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
14. The Department of Homeland Security/
U.S. Customs and Border Protection—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. 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
there under; and national security and
intelligence activities. 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
VerDate Aug<31>2005
14:41 Dec 18, 2008
Jkt 217001
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)(4)(I), (e)(5) and (e)(8); (f), and (g). Pursuant
to 5 U.S.C. 552a(k)(2) of the Privacy Act, 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), (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 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.
PO 00000
Frm 00007
Fmt 4702
Sfmt 4702
(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.
E:\FR\FM\19DEP1.SGM
19DEP1
Federal Register / Vol. 73, No. 245 / Friday, December 19, 2008 / Proposed Rules
Dated: December 10, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of
Homeland Security.
Privacy Office, U.S. Department of
Homeland Security, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
[FR Doc. E8–29878 Filed 12–18–08; 8:45 am]
BILLING CODE 4410–10–P
DEPARTMENT OF HOMELAND
SECURITY
Office of Security
6 CFR Part 5
[Docket No. DHS–2008–0176]
Privacy Act of 1974: Implementation of
Exemptions; DHS/USSS–003 NonCriminal Investigation Information
System
AGENCY: Department of Homeland
Security.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Department of Homeland
Security (DHS) is giving concurrent
notice of a revised and updated system
of records pursuant to the Privacy Act
of 1974 for the DHS United States Secret
Service—003 Non-Criminal
Investigation Information System
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 January 20, 2009.
ADDRESSES: You may submit comments,
identified by docket number DHS–
2008–0176, by one of the following
methods:
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 1–866–466–5370.
• Mail: Hugo Teufel III, Chief Privacy
Officer, Department of Homeland
Security, Washington, DC 20528.
Instructions: All submissions received
must include the agency name and
docket number for this notice. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For
general questions and privacy issues,
please contact: Hugo Teufel III (703–
235–0780), Chief Privacy Officer,
VerDate Aug<31>2005
14:41 Dec 18, 2008
Jkt 217001
Background: Pursuant to the savings
clause in the Homeland Security Act of
2002, the Department of Homeland
Security (DHS) and United States Secret
Service (USSS) have relied on
preexisting Privacy Act systems of
records notices for the collection and
maintenance of records that concern
DHS/USSS–003 Non-Criminal
Investigation Information System
records.
As part of its efforts to streamline and
consolidate its Privacy Act record
systems, DHS/USSS is updating and
reissuing a DHS/USSS system of records
under the Privacy Act (5 U.S.C. 552a)
for USSS records that concern
individuals involved in non-criminal
statutory investigations and/or
requirements. Information related
investigations into employee activities
is retired into DHS/All 020 Internal
Affairs published in the Federal
Register on November 14, 2008 73 FR
67529; information related to claims
against USSS is retired into DHS/All–
013 Claims published in the Federal
Register on October 28, 2008 at 73 FR
63987; and information related to
employment and security clearance
suitability are retired in DHS/OS1 Office
of Security Files, published September
12, 2006 71 FR 53700. This will ensure
that all organizational parts of USSS
follow the same privacy rules for
collecting and handling records noncriminal USSS investigation records. In
this notice of proposed rulemaking,
DHS now is proposing to exempt DHS/
USSS–003 Non-Criminal Investigation
Information System, in part, from
certain provisions of the 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
PO 00000
Frm 00008
Fmt 4702
Sfmt 4702
77543
description of the type and character of
each system of records that the agency
maintains, and the routine uses that are
contained in each system 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 such files
within the agency.
The Privacy Act allows Government
agencies to exempt certain records from
the access and amendment provisions. If
an agency claims an exemption,
however, it must issue a Notice of
Proposed Rulemaking to make clear to
the public the reasons why a particular
exemption is claimed.
DHS is claiming exemptions from
certain requirements of the Privacy Act
for DHS/USSS–003 Non-Criminal
Investigation Information System. Some
information in Non-Criminal
Investigation Information System relates
to law enforcement, training, and
protective services to the President of
the United States or other individuals
pursuant to Section 3056 and 3056A of
Title 18. These exemptions are needed
to protect information relating to DHS
activities from disclosure to subjects or
others related to these activities.
Specifically, the exemptions are
required to preclude subjects of these
activities from frustrating these
processes; to avoid disclosure of activity
techniques; to protect the identities and
physical safety of confidential
informants and law enforcement
personnel; to ensure DHS’ ability to
obtain information from third parties
and other sources; to protect the privacy
of third parties; to protect testing
materials; and to safeguard records in
connection with providing protective
services to the President of the United
States or other individuals pursuant to
Section 3056 and 3056A of Title 18.
Disclosure of information to the subject
of the 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 notice of system of records for DHS/
USSS–003 Non-Criminal Investigation
Information System is also published in
this issue of the Federal Register.
E:\FR\FM\19DEP1.SGM
19DEP1
]]>Agencies
[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Proposed Rules]
[Pages 77541-77543]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29878]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of Security
6 CFR Part 5
[Docket No. DHS-2008-0172]
Privacy Act of 1974: Implementation of Exemptions; DHS/CBP--010
Persons Engaged in International Trade in Customs and Border Protection
Licensed/Regulated Activities
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) is giving concurrent
notice of a revised and updated system of records pursuant to the
Privacy Act of 1974 for the U.S. Customs and Border Protection Persons
Engaged in International Trade in Customs and Border Protection--010
Licensed/Regulated Activities 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 January 20, 2009.
ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0172, by one of the following methods:
Federal e-Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 1-866-466-5370.
Mail: Hugo Teufel III, Chief Privacy Officer, Department
of Homeland Security, Washington, DC 20528.
Instructions: All submissions received must include the agency name
and docket number for this notice. All comments received will be posted
without change to https://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Laurence E. Castelli (202-325-0280), Chief, Privacy Act Policy and
Procedures Branch, U.S. Customs and Border Protection, Office of
International Trade, Regulations & Rulings, Mint Annex, 799 Ninth
Street, NW., Washington, DC 20001-4501. For privacy issues contact:
Hugo Teufel III (703-235-0780), Chief Privacy Officer, Privacy Office,
U.S. Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background: Pursuant to the savings clause in the Homeland Security
Act of 2002, Public Law 107-296, Section 1512, 116 Stat. 2310 (November
25, 2002), the Department of Homeland Security (DHS)/U.S. Customs and
Border Protection (CBP) have relied on preexisting Privacy Act systems
of records notices for the collection and maintenance of records
pertaining to persons engaged in international trade in CBP licensed/
regulated activities.
As part of its efforts to streamline and consolidate its record
systems, DHS is establishing a component system of records under the
Privacy Act (5 U.S.C. 552a) for DHS/CBP that deals with persons engaged
in international trade in CBP licensed/regulated activities. This
record system is titled, U.S. Customs and Border Protection Persons
Engaged in International Trade in CBP Licensed/Regulated Activities.
This system will be used by DHS/CBP to collect and maintain records on
persons engaged in international trade in CBP licensed/regulated
activities.
In this notice of proposed rulemaking, DHS now is proposing to
exempt Persons Engaged in International Trade in CBP Licensed/Regulated
Activities, in part, from certain provisions of the 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 of the type and character of each system of
records that the agency maintains, and the routine uses that are
contained in each system 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 such files within the agency.
The Privacy Act allows Government agencies to exempt certain
records from the access and amendment provisions. If an agency claims
an exemption, however, it must issue a Notice of Proposed Rulemaking to
make clear to the public the reasons why a particular exemption is
claimed.
DHS is claiming exemptions from certain requirements of the Privacy
Act for Persons Engaged in International Trade in CBP Licensed/
Regulated Activities. Some information in Persons Engaged in
International Trade in CBP Licensed/Regulated Activities relates to
official DHS national security, law enforcement, immigration, and
intelligence activities. These exemptions are needed to protect
information relating to DHS activities from disclosure to subjects or
others related to these activities. Specifically, the exemptions are
required to preclude subjects of these activities from frustrating
these processes; to avoid disclosure of activity techniques; to protect
the identities and physical safety of confidential informants and law
enforcement personnel; to ensure DHS's
[[Page 77542]]
ability to obtain information from third parties and other sources; and
to protect the privacy of third parties; to safeguard classified
information. Disclosure of information to the subject of the 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 notice of system of records for Persons Engaged in International
Trade in CBP Licensed/Regulated Activities 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: Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et
seq.; 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, Exemption of Record
Systems under the Privacy Act, the following new paragraph ``14'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
14. The Department of Homeland Security/U.S. Customs and Border
Protection--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. 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 there under; and
national security and intelligence activities. 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. 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)(4)(I), (e)(5) and (e)(8);
(f), and (g). Pursuant to 5 U.S.C. 552a(k)(2) of the Privacy Act,
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), (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 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
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 77543]]
Dated: December 10, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-29878 Filed 12-18-08; 8:45 am]
BILLING CODE 4410-10-P
