Privacy Act of 1974: Implementation of Exemptions; U.S. Immigration and Customs Enforcement-005 Trade Transparency Analysis and Research (TTAR) System, 38887-38889 [E9-18620]
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38887
Rules and Regulations
Federal Register
Vol. 74, No. 149
Wednesday, August 5, 2009
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2008–0169]
Privacy Act of 1974: Implementation of
Exemptions; U.S. Immigration and
Customs Enforcement–005 Trade
Transparency Analysis and Research
(TTAR) System
Privacy Office, DHS.
Final rule.
AGENCY:
ACTION:
srobinson on DSKHWCL6B1PROD with RULES
SUMMARY: The Department of Homeland
Security is issuing a final rule to amend
its regulations to exempt portions of a
new U.S. Immigration and Customs
Enforcement system of records entitled
the ‘‘U.S. ICE–005 Trade Transparency
Analysis and Research (TTAR)’’ system
from certain provisions of the Privacy
Act. Specifically, the Department
exempts portions of the TTAR system
from one or more provisions of the
Privacy Act because of criminal, civil,
and administrative enforcement
requirements.
DATES: Effective Date: This final rule is
effective August 5, 2009.
FOR FURTHER INFORMATION CONTACT: Lyn
Rahilly (202–732–3300), Privacy Officer,
U.S. Immigration and Customs
Enforcement, 500 12th Street, SW.,
Washington, DC 20024, e-mail:
ICEPrivacy@dhs.gov, or Mary Ellen
Callahan (703–235–0780), Chief Privacy
Officer, Privacy Office, U.S. Department
of Homeland Security, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland
Security (DHS) published a notice of
proposed rulemaking in the Federal
Register, 73 FR 64890, Oct. 31, 2008
VerDate Nov<24>2008
16:20 Aug 04, 2009
Jkt 217001
proposing to exempt portions of the U.S.
ICE–005 Trade Transparency Analysis
and Research (TTAR) system of records
from one or more provisions of the
Privacy Act because of criminal, civil,
and administrative enforcement
requirements. The TTAR system of
records notice (SORN) was published
concurrently in the Federal Register, 73
FR 64967, Oct. 31, 2008. and comments
were invited on both the proposed rule
and SORN. No comments were received
from the public regarding either the
SORN or the proposed rule. Therefore,
no changes have been made to the rule
or the SORN, and DHS is implementing
the final rule as published.
In this rule, DHS is claiming
exemption from certain requirements of
the Privacy Act for TTAR because
certain information in the system may
contain information about ongoing law
enforcement investigations. The TTAR
system of records is maintained for the
purpose of enforcing criminal laws
pertaining to trade by examining U.S.
and foreign trade data to identify
anomalies in patterns of trade that may
indicate trade-based money laundering
or other import-export crimes that ICE is
responsible for investigating. TTAR
contains trade data collected by other
Federal agencies and foreign
governments, and financial data
collected by U.S. Customs and Border
Protection (CBP) and the U.S.
Department of the Treasury Financial
Crimes Enforcement Network (FinCEN).
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 of border management
and law enforcement personnel; to
ensure DHS’s ability to obtain
information from third parties and other
sources; to protect the privacy of third
parties; and 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 published here are
standard law enforcement and national
security exemptions exercised by a large
number of Federal law enforcement and
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
intelligence agencies. The exemptions
do not necessarily apply to all records
described in the TTAR SORN. 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.
Regulatory Requirements
A. Regulatory Impact Analyses
Changes to Federal regulations must
undergo several analyses. In conducting
these analyses, DHS has determined:
1. Executive Order 12866 Assessment
This rule is not a significant
regulatory action under Executive Order
12866, ‘‘Regulatory Planning and
Review’’ (as amended). Accordingly,
this rule has not been reviewed by the
Office of Management and Budget
(OMB). Nevertheless, DHS has reviewed
this rulemaking, and concluded that
there will not be any significant
economic impact.
2. Regulatory Flexibility Act Assessment
Pursuant to section 605 of the
Regulatory Flexibility Act (RFA), 5
U.S.C. 605(b), as amended by the Small
Business Regulatory Enforcement and
Fairness Act of 1996 (SBREFA), DHS
certifies that this rule will not have a
significant impact on a substantial
number of small entities. The rule
would impose no duties or obligations
on small entities. Further, the
exemptions to the Privacy Act apply to
individuals, and individuals are not
covered entities under the RFA.
3. International Trade Impact
Assessment
This rulemaking will not constitute a
barrier to international trade. The
exemptions relate to civil or criminal
investigations and agency
documentation and, therefore, do not
create any new costs or barriers to trade.
4. Unfunded Mandates Assessment
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), (Pub. L.
104–4, 109 Stat. 48), requires Federal
agencies to assess the effects of certain
regulatory actions on State, local, and
tribal governments, and the private
sector. This rulemaking will not impose
an unfunded mandate on State, local, or
E:\FR\FM\05AUR1.SGM
05AUR1
38888
Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Rules and Regulations
tribal governments, or on the private
sector.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501 et seq.) requires
that DHS consider the impact of
paperwork and other information
collection burdens imposed on the
public and, under the provisions of PRA
section 3507(d), obtain approval from
the Office of Management and Budget
(OMB) for each collection of
information it conducts, sponsors, or
requires through regulations. DHS has
determined that there are no current or
new information collection
requirements associated with this rule.
C. Executive Order 13132, Federalism
This action will not have a substantial
direct effect on the States, on the
relationship between the national
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, and therefore will
not have federalism implications.
D. Environmental Analysis
DHS has reviewed this action for
purposes of the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C.
4321–4347) and has determined that
this action will not have a significant
effect on the human environment.
E. Energy Impact
The energy impact of this action has
been assessed in accordance with the
Energy Policy and Conservation Act
(EPCA) Public Law 94–163, as amended
(42 U.S.C. 6362). This rulemaking is not
a major regulatory action under the
provisions of the EPCA.
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
1. The authority citation for part 5
continues to read as follows:
■
Authority: Pub. L. 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.
2. At the end of appendix C to part 5,
add the following new paragraph 14 to
read as follows:
srobinson on DSKHWCL6B1PROD with RULES
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
14. The U.S. ICE–005 Trade Transparency
Analysis and Research (TTAR) System
VerDate Nov<24>2008
16:20 Aug 04, 2009
Jkt 217001
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,
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
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
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 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
E:\FR\FM\05AUR1.SGM
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Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Rules and Regulations
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: July 30, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E9–18620 Filed 8–4–09; 8:45 am]
BILLING CODE 9111–28–P
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Part 210
[FNS–2005–0009]
RIN 0584–AD83
Marketing and Sale of Fluid Milk in
Schools
AGENCY: Food and Nutrition Service,
USDA.
ACTION: Final Rule.
srobinson on DSKHWCL6B1PROD with RULES
SUMMARY: This rule finalizes the interim
rule that implemented the statutory
provision to prohibit direct or indirect
restrictions on the sale or marketing of
fluid milk on school premises or at
school-sponsored events, at any time or
in any place, in schools participating in
the National School Lunch Program.
This rule ensures that there are no
policies or procedures in place that have
the effect of restricting the sale or
marketing of fluid milk.
DATES: Effective Date: This action is
effective September 4, 2009.
FOR FURTHER INFORMATION CONTACT:
Melissa Rothstein, Chief, Policy and
Program Development Branch, Child
Nutrition Division, Food and Nutrition
Service, U.S. Department of Agriculture,
3101 Park Center Drive, Room 640,
Alexandria, Virginia 22302–1594; or
(703) 305–2590; or
CNDINTERNET@fns.usda.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Section 102 of the Child Nutrition and
WIC Reauthorization Act of 2004 (Pub.
L. 108–265) amended section 9(a)(2) of
the Richard B. Russell National School
Lunch Act, 42 U.S.C. 1758, by adding a
provision that prohibits schools
participating in the National School
Lunch Program (NSLP), or any person
approved by a school participating in
the NSLP, from directly or indirectly
restricting the sale or marketing of fluid
milk products at any time or in any
VerDate Nov<24>2008
16:20 Aug 04, 2009
Jkt 217001
place on school premises or at schoolsponsored events. The Food and
Nutrition Service (FNS) published an
interim rule on November 21, 2005 (70
FR 70031) to prohibit school food
authorities (SFAs) from entering into
contracts that restrict the sale or
marketing of fluid milk.
Contracts between SFAs and vendors
can be structured to restrict the variety
or types of food choices a school may
offer outside of the school meal
programs. Prior to implementation of
the interim rule, some exclusive
vending contracts were found to have
the potential to limit a school’s ability
to sell or market fluid milk on school
premises outside of the school meal
programs; however, very few if any were
found to actually limit the sale or
marketing of fluid milk.
The intent of this rule is to ensure no
vending contract restricts a school’s
ability or discretion to provide children
access to fluid milk outside of the
school meal programs. This rule does
not require that participating schools
sell or market fluid milk outside of the
NSLP, or make fluid milk available at
school-sponsored events. Furthermore,
this rule does not affect the
requirements for offering fluid milk as
part of a reimbursable lunch in the
NSLP as described in 7 CFR 210.10(m).
For additional background
information, please refer to the interim
rule.
II. Discussion of Public Comments and
FNS Response
FNS received a total of eight
comments during the 180-day comment
period that ended on May 22, 2006. The
commenters included representatives
from dairy industry trade associations
(3), a school food authority (1), a State
agency (1), and individuals (3).
Of the eight comments received, six of
the commenters, including one
individual and the representatives from
a school food authority, a State agency,
and the trade associations, were in
support of finalizing the requirements as
established by the interim rule to
prohibit any restriction of the sale or
marketing of fluid milk in participating
schools.
One commenter in support of the
provision also felt that the Department
should extend the rulemaking to
prohibit or restrict all exclusive
beverage contracts in participating
schools.
Under existing NSLP regulations at 7
CFR 210.21, SFAs must comply with
requirements intended to ensure the
integrity of procurement practices for
the purchase of goods and services with
funds from the nonprofit school
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
38889
foodservice account. Furthermore, NSLP
regulations provide SFAs with the
flexibility to enter into vending
contracts that best meet their needs for
foods and beverages sold outside of the
school meal programs. This rulemaking
is intended to ensure vending contracts
do not directly or indirectly restrict the
sale or marketing of fluid milk at any
time or in any place on school premises
or at school-sponsored events. Other
procurement issues regarding vending
contracts and agreements are outside the
scope of this rulemaking.
Two of the individual commenters
expressed opposition to implementing
the rule as final because of concern that
it favors dairy industry interests and
inhibits schools’ ability to choose
whether to sell or market fluid milk.
One commenter also disapproved of
conventional dairy production
practices.
This rulemaking does not require or
promote the sale or marketing of fluid
milk outside the school meal programs.
SFAs retain the authority to establish
procurement contracts in accordance
with Program regulations for foods sold
outside of the school meal programs that
best meet the nutritional and
operational needs of their students and
schools.
Finally, discussion of conventional
dairy production practices is outside the
scope of this rulemaking.
FNS considered all comments
received and determined that these
comments did not warrant any changes
to the requirements established by the
interim rule, or were outside the scope
of the interim rule. FNS is issuing the
interim rule as final without revision.
III. Procedural Matters
Executive Order 12866
This rule has been determined to be
non-significant and is not subject to
review by the Office of Management and
Budget under Executive Order 12866.
Regulatory Flexibility Act
This rule has been reviewed with
regard to the requirements of the
Regulatory Flexibility Act (5 U.S.C.
601–612). Implementation of this rule is
not expected to impose a significant
economic impact on a substantial
number of small entities. No later than
the beginning of School Year 2006–
2007, SFAs were required by section
102 of Public Law 108–265 to ensure
that any existing or new vending
contracts did not include provisions
that restrict the sale or marketing of
fluid milk. Therefore, the number of
SFAs expected to be impacted by this
rule is minimal.
E:\FR\FM\05AUR1.SGM
05AUR1
Agencies
[Federal Register Volume 74, Number 149 (Wednesday, August 5, 2009)]
[Rules and Regulations]
[Pages 38887-38889]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-18620]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 /
Rules and Regulations
[[Page 38887]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2008-0169]
Privacy Act of 1974: Implementation of Exemptions; U.S.
Immigration and Customs Enforcement-005 Trade Transparency Analysis and
Research (TTAR) System
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security is issuing a final rule to
amend its regulations to exempt portions of a new U.S. Immigration and
Customs Enforcement system of records entitled the ``U.S. ICE-005 Trade
Transparency Analysis and Research (TTAR)'' system from certain
provisions of the Privacy Act. Specifically, the Department exempts
portions of the TTAR system from one or more provisions of the Privacy
Act because of criminal, civil, and administrative enforcement
requirements.
DATES: Effective Date: This final rule is effective August 5, 2009.
FOR FURTHER INFORMATION CONTACT: Lyn Rahilly (202-732-3300), Privacy
Officer, U.S. Immigration and Customs Enforcement, 500 12th Street,
SW., Washington, DC 20024, e-mail: ICEPrivacy@dhs.gov, or Mary Ellen
Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, U.S.
Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland Security (DHS) published a notice of
proposed rulemaking in the Federal Register, 73 FR 64890, Oct. 31, 2008
proposing to exempt portions of the U.S. ICE-005 Trade Transparency
Analysis and Research (TTAR) system of records from one or more
provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements. The TTAR system of records
notice (SORN) was published concurrently in the Federal Register, 73 FR
64967, Oct. 31, 2008. and comments were invited on both the proposed
rule and SORN. No comments were received from the public regarding
either the SORN or the proposed rule. Therefore, no changes have been
made to the rule or the SORN, and DHS is implementing the final rule as
published.
In this rule, DHS is claiming exemption from certain requirements
of the Privacy Act for TTAR because certain information in the system
may contain information about ongoing law enforcement investigations.
The TTAR system of records is maintained for the purpose of enforcing
criminal laws pertaining to trade by examining U.S. and foreign trade
data to identify anomalies in patterns of trade that may indicate
trade-based money laundering or other import-export crimes that ICE is
responsible for investigating. TTAR contains trade data collected by
other Federal agencies and foreign governments, and financial data
collected by U.S. Customs and Border Protection (CBP) and the U.S.
Department of the Treasury Financial Crimes Enforcement Network
(FinCEN).
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 of border management and
law enforcement personnel; to ensure DHS's ability to obtain
information from third parties and other sources; to protect the
privacy of third parties; and 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 published here are standard law enforcement and
national security exemptions exercised by a large number of Federal law
enforcement and intelligence agencies. The exemptions do not
necessarily apply to all records described in the TTAR SORN. 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.
Regulatory Requirements
A. Regulatory Impact Analyses
Changes to Federal regulations must undergo several analyses. In
conducting these analyses, DHS has determined:
1. Executive Order 12866 Assessment
This rule is not a significant regulatory action under Executive
Order 12866, ``Regulatory Planning and Review'' (as amended).
Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB). Nevertheless, DHS has reviewed this
rulemaking, and concluded that there will not be any significant
economic impact.
2. Regulatory Flexibility Act Assessment
Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5
U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement
and Fairness Act of 1996 (SBREFA), DHS certifies that this rule will
not have a significant impact on a substantial number of small
entities. The rule would impose no duties or obligations on small
entities. Further, the exemptions to the Privacy Act apply to
individuals, and individuals are not covered entities under the RFA.
3. International Trade Impact Assessment
This rulemaking will not constitute a barrier to international
trade. The exemptions relate to civil or criminal investigations and
agency documentation and, therefore, do not create any new costs or
barriers to trade.
4. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub.
L. 104-4, 109 Stat. 48), requires Federal agencies to assess the
effects of certain regulatory actions on State, local, and tribal
governments, and the private sector. This rulemaking will not impose an
unfunded mandate on State, local, or
[[Page 38888]]
tribal governments, or on the private sector.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DHS consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. DHS has determined
that there are no current or new information collection requirements
associated with this rule.
C. Executive Order 13132, Federalism
This action will not have a substantial direct effect on the
States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and therefore will not have federalism
implications.
D. Environmental Analysis
DHS has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
E. Energy Impact
The energy impact of this action has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163,
as amended (42 U.S.C. 6362). This rulemaking is not a major regulatory
action under the provisions of the EPCA.
List of Subjects in 6 CFR part 5
Freedom of information; Privacy.
0
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: Pub. L. 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.
0
2. At the end of appendix C to part 5, add the following new paragraph
14 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
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, 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 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
[[Page 38889]]
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: July 30, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-18620 Filed 8-4-09; 8:45 am]
BILLING CODE 9111-28-P