Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security U.S. Customs and Border Protection-010 Persons Engaged in International Trade in Customs and Border Protection Licensed/Regulated Activities System of Records, 45070-45072 [E9-20745]
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45070
Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2009–0057]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security U.S. Customs and Border
Protection—009 Electronic System for
Travel Authorization System of
Records
Privacy Office, DHS.
Final rule.
AGENCY:
ACTION:
SUMMARY: The Department of Homeland
Security is issuing a final rule to amend
its regulations to exempt portions of a
Department of Homeland Security U.S.
Customs and Border Protection system
of records entitled the ‘‘Department of
Homeland Security U.S. Customs and
Border Protection—009 Electronic
System for Travel Authorization System
of Records’’ from certain provisions of
the Privacy Act. Specifically, the
Department exempts portions of the
Department of Homeland Security U.S.
Customs and Border Protection—009
Electronic System for Travel
Authorization 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 31, 2009.
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: Mary Ellen
Callahan (703–235–0780), Chief Privacy
Officer, Privacy Office, U.S. Department
of Homeland Security, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
PWALKER on DSK8KYBLC1PROD with RULES5
Background
The Department of Homeland
Security (DHS) published a notice of
proposed rulemaking in the Federal
Register, 73 FR 32657, June 10, 2008,
proposing to exempt portions of the
system of records from one or more
provisions of the Privacy Act because of
criminal, civil, and administrative
enforcement requirements. The system
of records is the DHS/U.S. Customs and
Border Protection (CBP)—009 Electronic
System for Travel Authorization system.
VerDate Nov<24>2008
18:53 Aug 28, 2009
Jkt 217001
The DHS/CBP—009 Electronic System
for Travel Authorization system of
records notice was published
concurrently in the Federal Register, 73
FR 32720, June 10, 2008, and comments
were invited on both the notice of
proposed rulemaking and system of
records notice. No comments were
received.
Public Comments
DHS received no comments on the
notice of proposed rulemaking or the
system of records notice. DHS will
implement the rulemaking as proposed.
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: 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 ‘‘20’’:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
20. The DHS/CBP—009 Electronic System
for Travel Authorization system of records
consists of electronic and paper records and
will be used by DHS and it’s Components.
The DHS/CBP—009 Electronic System for
Travel Authorization system is a repository
of information held by DHS in connection
with its several and varied missions and
functions, including, but not limited to: The
enforcement of civil and criminal laws;
investigations, inquiries, and proceedings
thereunder; and national security and
intelligence activities. The DHS/CBP—009
Electronic System for Travel Authorization
system contains information that is collected
by, on behalf of, in support of, or in
cooperation with DHS and its components
and may contain personally identifiable
information collected by other Federal, State,
local, tribal, foreign, or international
government agencies. The Secretary of
Homeland Security has exempted this system
from the following provisions of the Privacy
Act, subject to the limitations set forth in 5
U.S.C. 552a(c)(3), (e)(8), and (g) pursuant to
5 U.S.C. 552a(j)(2), and (k)(2). Further, no
exemption shall be asserted with respect to
information maintained in the system as it
relates to data submitted by or on behalf of
a person who travels to visit the United
States and crosses the border, nor shall an
exemption be asserted with respect to the
PO 00000
Frm 00002
Fmt 4701
Sfmt 4700
resulting determination (approval or denial).
After conferring with the appropriate
component or agency, DHS may waive
applicable exemptions in appropriate
circumstances and where it would not appear
to interfere with or adversely affect the law
enforcement purposes of the systems from
which the information is recompiled or in
which it is contained. Exemptions from the
above particular subsections are justified, on
a case-by-case basis to be determined at the
time a request is made, when information in
this system of records may impede a law
enforcement or national security
investigation:
(a) From subsection (c)(3) (Accounting for
Disclosure) because making available to a
record subject the accounting of disclosures
from records concerning him or her would
specifically reveal any investigative interest
in the individual. Revealing this information
could reasonably be expected to compromise
ongoing efforts to investigate a violation of
U.S. law, including investigations of a known
or suspected terrorist, by notifying the record
subject that he or she is under investigation.
This information could also permit the
record subject to take measures to impede the
investigation, e.g., destroy evidence,
intimidate potential witnesses, or flee the
area to avoid or impede the investigation.
(b) From subsection (e)(8) (Notice on
Individuals) because to require individual
notice of disclosure of information due to
compulsory legal process would pose an
impossible administrative burden on DHS
and other agencies and could alert the
subjects of counterterrorism or law
enforcement investigations to the fact of
those investigations when not previously
known.
(c) From subsection (g) (Civil Remedies) to
the extent that the system is exempt from
other specific subsections of the Privacy Act.
Dated: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E9–20744 Filed 8–28–09; 8:45 am]
BILLING CODE 9110–06–P
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2009–0059]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security U.S. Customs and Border
Protection—010 Persons Engaged in
International Trade in Customs and
Border Protection Licensed/Regulated
Activities System of Records
Privacy Office, DHS.
Final rule.
AGENCY:
ACTION:
SUMMARY: The Department of Homeland
Security is issuing a final rule to amend
E:\FR\FM\31AUR5.SGM
31AUR5
Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations
its regulations to exempt portions of a
Department of Homeland Security U.S.
Customs and Border Protection system
of records entitled the ‘‘Department of
Homeland Security U.S. Customs and
Border Protection—010 Persons
Engaged in International Trade in
Customs and Border Protection
Licensed/Regulated Activities System of
Records’’ from certain provisions of the
Privacy Act. Specifically, the
Department exempts portions of the
DHS/CBP—010 Persons Engaged in
International Trade in Customs and
Border Protection Licensed/Regulated
Activities 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 31, 2009.
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: Mary Ellen
Callahan (703–235–0780), Chief Privacy
Officer, Privacy Office, U.S. Department
of Homeland Security, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
PWALKER on DSK8KYBLC1PROD with RULES5
Background
The Department of Homeland
Security (DHS) published a notice of
proposed rulemaking in the Federal
Register, 73 FR 77541, December 19,
2008, proposing to exempt portions of
the system of records from one or more
provisions of the Privacy Act because of
criminal, civil, and administrative
enforcement requirements. The system
of records is the DHS/U.S. Customs and
Border Protection (CBP)—010 Persons
Engaged in International Trade in CBP
Licensed/Regulated Activities system.
The DHS/CBP—010 Persons Engaged in
International Trade in CBP Licensed/
Regulated Activities system of records
notice was published concurrently in
the Federal Register, 73 FR 77753,
December 19, 2008, and comments were
invited on both the notice of proposed
rulemaking and system of records
notice. No comments were received.
Public Comments
DHS received no comments on the
notice of proposed rulemaking or the
system of records notice. DHS will
implement the rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
VerDate Nov<24>2008
18:53 Aug 28, 2009
Jkt 217001
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: 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 ‘‘21’’:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
21. The DHS/CBP—010 Persons Engaged in
International Trade in CBP Licensed/
Regulated Activities system of records
consists of electronic and paper records and
will be used by DHS and its components. The
DHS/CBP—010 Persons Engaged in
International Trade in CBP Licensed/
Regulated Activities is a repository of
information held by DHS in connection with
its several and varied missions and functions,
including, but not limited to: The
enforcement of civil and criminal laws;
investigations, inquiries, and proceedings
thereunder; and national security and
intelligence activities. The DHS/CBP—010
Persons Engaged in International Trade in
CBP Licensed/Regulated Activities contains
information that is collected by, on behalf of,
in support of, or in cooperation with DHS
and its components and may contain
personally identifiable information collected
by other Federal, State, local, tribal, foreign,
or international government agencies. The
Secretary of Homeland Security has
exempted this system from the following
provisions of the Privacy Act, subject to the
limitations set forth in 5 U.S.C. 552a(c)(3)
and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G),
(e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), and (g)
pursuant to 5 U.S.C. 552a(j)(2). Additionally,
the Secretary of Homeland Security has
exempted this system from the following
provisions of the Privacy Act, subject to the
limitations set forth in 5 U.S.C. 552a (c)(3),
(d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f)
pursuant to 5 U.S.C. 552a(k)(2). Exemptions
from these particular subsections are
justified, on a case-by-case basis to be
determined at the time a request is made, for
the following reasons:
(a) From subsection (c)(3) and (4)
(Accounting for Disclosures) because release
of the accounting of disclosures could alert
the subject of an investigation of an actual or
potential criminal, civil, or regulatory
violation to the existence of the investigation,
and reveal investigative interest on the part
of DHS as well as the recipient agency.
Disclosure of the accounting would therefore
present a serious impediment to law
enforcement efforts and/or efforts to preserve
national security. Disclosure of the
accounting would also permit the individual
PO 00000
Frm 00003
Fmt 4701
Sfmt 4700
45071
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
E:\FR\FM\31AUR5.SGM
31AUR5
45072
Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations
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.
of records entitled the ‘‘Department of
Homeland Security U.S. Customs and
Border Protection—011 TECS System of
Records’’ from certain provisions of the
Privacy Act. Specifically, the
Department exempts portions of the
Department of Homeland Security U.S.
Customs and Border Protection—011
TECS 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 31, 2009.
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: Mary Ellen
Callahan (703–235–0780), Chief Privacy
Officer, Privacy Office, U.S. Department
of Homeland Security, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
Background
Office of the Secretary
The Department of Homeland
Security (DHS) published a notice of
proposed rulemaking in the Federal
Register, 73 FR 77537, December 19,
2008, proposing to exempt portions of
the system of records from one or more
provisions of the Privacy Act because of
criminal, civil, and administrative
enforcement requirements. The system
of records is the DHS/U.S. Customs and
Border Protection (CBP)—011 TECS
system. The DHS/CBP—011 TECS
system of records notice was published
concurrently in the Federal Register, 73
FR 77778, December 19, 2008, and
comments were invited on both the
notice of proposed rulemaking and
system of records notice. No comments
were received.
6 CFR Part 5
Public Comments
Dated: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E9–20745 Filed 8–28–09; 8:45 am]
BILLING CODE 9110–06–P
DEPARTMENT OF HOMELAND
SECURITY
[Docket No. DHS–2009–0061]
PWALKER on DSK8KYBLC1PROD with RULES5
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security U.S. Customs and Border
Protection—011 TECS System of
Records
Privacy Office, DHS.
Final rule.
SUMMARY: The Department of Homeland
Security is issuing a final rule to amend
its regulations to exempt portions of
Department of Homeland Security U.S.
Customs and Border Protection system
VerDate Nov<24>2008
18:53 Aug 28, 2009
Jkt 217001
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:
■
AGENCY:
ACTION:
DHS received no comments on the
notice of proposed rulemaking or the
system of records notice. DHS will
implement the rulemaking as proposed.
PART 5—DISCLOSURE OF RECORDS
AND INFORMATION
1. The authority citation for Part 5
continues to read as follows:
■
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
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 ‘‘22’’:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
22. The DHS/CBP—011 TECS system of
records consists of electronic and paper
records and will be used by DHS, its
Components, and other Federal agencies. The
DHS/CBP–011 TECS is a repository of
information held by DHS in connection with
its several and varied missions and functions,
including, but not limited to: The
enforcement of civil and criminal laws;
investigations, inquiries, and proceedings
thereunder; and national security and
intelligence activities. The DHS/CBP–011
TECS contains information that is collected
by, on behalf of, in support of, or in
cooperation with DHS and its components
and may contain personally identifiable
information collected by other Federal, State,
local, Tribal, foreign, or international
government agencies. The Secretary of
Homeland Security has exempted this system
from the following provisions of the Privacy
Act, subject to the limitations set forth in 5
U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2),
(e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and
(e)(8); (f), and (g) pursuant to 5 U.S.C.
552a(j)(2). Additionally, the Secretary of
Homeland Security has exempted this system
from the following provisions of the Privacy
Act, subject to the limitations set forth in 5
U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I), and (f) pursuant to 5 U.S.C.
552a(k)(2). Exemptions from these particular
subsections are justified, on a case-by-case
basis to be determined at the time a request
is made, for the following reasons:
(a) From subsection (c)(3) and (4)
(Accounting for Disclosures) because release
of the accounting of disclosures could alert
the subject of an investigation of an actual or
potential criminal, civil, or regulatory
violation to the existence of the investigation,
and reveal investigative interest on the part
of DHS as well as the recipient agency.
Disclosure of the accounting would therefore
present a serious impediment to law
enforcement efforts and/or efforts to preserve
national security. Disclosure of the
accounting would also permit the individual
who is the subject of a record to impede the
investigation, to tamper with witnesses or
evidence, and to avoid detection or
apprehension, which would undermine the
entire investigative process.
(b) From subsection (d) (Access to Records)
because access to the records contained in
this system of records could inform the
subject of an investigation of an actual or
potential criminal, civil, or regulatory
violation, to the existence of the
investigation, and reveal investigative
interest on the part of DHS or another agency.
Access to the records could permit the
individual who is the subject of a record to
E:\FR\FM\31AUR5.SGM
31AUR5
]]>Agencies
[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Pages 45070-45072]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20745]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0059]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security U.S. Customs and Border Protection--010 Persons
Engaged in International Trade in Customs and Border Protection
Licensed/Regulated Activities System of Records
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security is issuing a final rule to
amend
[[Page 45071]]
its regulations to exempt portions of a Department of Homeland Security
U.S. Customs and Border Protection system of records entitled the
``Department of Homeland Security U.S. Customs and Border Protection--
010 Persons Engaged in International Trade in Customs and Border
Protection Licensed/Regulated Activities System of Records'' from
certain provisions of the Privacy Act. Specifically, the Department
exempts portions of the DHS/CBP--010 Persons Engaged in International
Trade in Customs and Border Protection Licensed/Regulated Activities
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 31, 2009.
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:
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 77541, December 19,
2008, proposing to exempt portions of the system of records from one or
more provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements. The system of records is the
DHS/U.S. Customs and Border Protection (CBP)--010 Persons Engaged in
International Trade in CBP Licensed/Regulated Activities system. The
DHS/CBP--010 Persons Engaged in International Trade in CBP Licensed/
Regulated Activities system of records notice was published
concurrently in the Federal Register, 73 FR 77753, December 19, 2008,
and comments were invited on both the notice of proposed rulemaking and
system of records notice. No comments were received.
Public Comments
DHS received no comments on the notice of proposed rulemaking or
the system of records notice. DHS will implement the rulemaking as
proposed.
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: 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.
0
2. Add at the end of Appendix C to Part 5, Exemption of Record Systems
under the Privacy Act, the following new paragraph ``21'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
21. The DHS/CBP--010 Persons Engaged in International Trade in
CBP Licensed/Regulated Activities system of records consists of
electronic and paper records and will be used by DHS and its
components. The DHS/CBP--010 Persons Engaged in International Trade
in CBP Licensed/Regulated Activities is a repository of information
held by DHS in connection with its several and varied missions and
functions, including, but not limited to: The enforcement of civil
and criminal laws; investigations, inquiries, and proceedings
thereunder; and national security and intelligence activities. The
DHS/CBP--010 Persons Engaged in International Trade in CBP Licensed/
Regulated Activities contains information that is collected by, on
behalf of, in support of, or in cooperation with DHS and its
components and may contain personally identifiable information
collected by other Federal, State, local, tribal, foreign, or
international government agencies. The Secretary of Homeland
Security has exempted this system from the following provisions of
the Privacy Act, subject to the limitations set forth in 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G),
(e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5
U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security
has exempted this system from the following provisions of the
Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a
(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f)
pursuant to 5 U.S.C. 552a(k)(2). Exemptions from these particular
subsections are justified, on a case-by-case basis to be determined
at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation to the existence of the
investigation, and reveal investigative interest on the part of DHS
as well as the recipient agency. Disclosure of the accounting would
therefore present a serious impediment to law enforcement efforts
and/or efforts to preserve national security. Disclosure of the
accounting would also permit the individual who is the subject of a
record to impede the investigation, to tamper with witnesses or
evidence, and to avoid detection or apprehension, which would
undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to
the records contained in 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
[[Page 45072]]
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.
Dated: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-20745 Filed 8-28-09; 8:45 am]
BILLING CODE 9110-06-P
