[Federal Register Volume 77, Number 100 (Wednesday, May 23, 2012)]
[Proposed Rules]
[Pages 30433-30435]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12395]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 77, No. 100 / Wednesday, May 23, 2012 /
Proposed Rules
[[Page 30433]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2012-0020]
Privacy Act of 1974: Implementation of Exemptions; Automated
Targeting System
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security is giving concurrent
notice of a updated system of records pursuant to the Privacy Act of
1974 for the ``Department of Homeland Security/U.S. Customs and Border
Protection--006--Automated Targeting System (ATS) System of Records''
and this proposed rulemaking. The Department is publishing this Notice
of Proposed Rulemaking to ensure that the exemptions previously
published are clearly and appropriately applied to all records in the
updated system of records.
DATES: Comments must be received on or before June 22, 2012.
ADDRESSES: You may submit comments, identified by docket number DHS-
2012-0020, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 703-483-2999.
Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
Instructions: All submissions received must include the agency name
and docket number for this notice. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Laurence E. Castelli (202-325-0280), CBP Privacy Officer, Office of
International Trade, U.S. Customs and Border Protection, Mint Annex,
799 Ninth Street NW., Washington, DC 20229. For privacy issues please
contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer,
Privacy Office, Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, the Department of
Homeland Security proposes to update and expand an existing Department
of Homeland Security SORN titled, U.S. Customs and Border Protection,
DHS/CBP-006--Automated Targeting System (ATS) 72 FR 43650, August 6,
2007.
The SORN published elsewhere in the Federal Register is being
updated and expanded to inform the public about changes to the
Automated Targeting System (ATS) categories of individuals, categories
of records, routine uses, access provisions, and sources of data. DHS/
CBP is updating and expanding the categories of individuals, categories
of records and sources of records stored in ATS because it has certain
data that it must ingest for performance purposes. The Privacy Impact
Assessment (PIA), which DHS will publish on its Web site (http://www.dhs.gov/privacy) concurrently with the publication of the SORN in
the Federal Register, provides a full discussion of the functional
capabilities of ATS and its modules. DHS and CBP have previously
exempted portions of ATS from the access, amendment, and public
accounting provisions of the Privacy Act because it is a law
enforcement system. DHS and CBP, however, will consider each request
for access to records maintained in ATS to determine whether or not
information may be released. DHS and CBP further note that despite the
exemption taken on this system of records they are providing access and
amendment to passenger name records (PNR) collected by CBP pursuant to
its statutory authority, 49 U.S.C. 44909, as implemented by 19 CFR
122.49d; Importer Security Filing (10+2 documentation) information; and
any records that were ingested by ATS where the source system of
records already provides access and/or amendment under the Privacy Act.
ATS provides the following basic functionalities to support the CBP
officer in identifying individuals and cargo that need additional
review across the different means or modes of travel to and from the
United States:
Comparison: ATS compares information on travelers and
cargo coming into and going out of the country against law enforcement
and intelligence databases to identify individuals and cargo requiring
additional scrutiny. For example, ATS compares information on
individuals (identified as passengers, travelers, crewmembers, or
persons appearing on documents supporting the movement of cargo) trying
to enter the country or trying to enter merchandise into the country
against the Terrorist Screening Database (TSDB), which ATS ingests from
the DHS Watchlist Service (WLS), and outstanding wants and warrants.
Rules: ATS compares existing information on individuals
and cargo entering and exiting the country with patterns identified as
requiring additional scrutiny. The patterns are based on CBP officer
experience, analysis of trends of suspicious activity, and raw
intelligence corroborating those trends. For example, ATS might compare
information on cargo entering the country against a set of scenario-
based targeting rules that indicate a particular type of fish rarely is
imported from a given country.
Federated Query: ATS allows users to search data across
many different databases and correlates it across the various systems
to provide a person centric view of all data responsive to a query
about the person's identity from the selected data bases.
In order to do the above, ATS pulls data from many different source
systems. In some instances ATS is the official record for the
information, while in other instances ATS ingests and maintains the
information in order to improve the functionality of the system or
provides a pointer to the information in the underlying system. Below
is a summary:
Official Record: ATS maintains the official record for
Passenger Name Records (PNR) collected by CBP pursuant to its statutory
authority, 49
[[Page 30434]]
U.S.C. 44909, as implemented by 19 CFR 122.49d; for Importer Security
Filing (10+2 documentation) information, which provides advanced
information about cargo and related persons and entities for risk
assessment and targeting purposes; for results of Cargo Enforcement
Exams; for the combination of license plate, Department of Motor
Vehicle (DMV) registration data and biographical data associated with a
border crossing; for law enforcement and/or intelligence data, reports,
and projects developed by CBP analysts that may include public source
and/or classified information; and information obtained through
memorandum of understanding or other arrangements because the
information is relevant to the border security mission of the
Department.
Ingestion of Data: ATS maintains copies of key elements of
certain CBP databases in order to minimize the processing time for
searches on the operational systems and to act as a backup for certain
operational systems, including, but not limited to: Automated
Commercial Environment (ACE), Automated Commercial System (ACS),
Automated Export System (AES), Advance Passenger Information System
(APIS), Border Crossing Information (BCI), Consular Electronic
Application Center (CEAC), Enforcement Integrated Database (EID) [which
includes the Enforcement Case Tracking System (ENFORCE)], Electronic
System for Travel Authorization (ESTA), Global Enrollment System (GES),
Non-Immigrant Information System (NIIS), historical National Security
Entry-Exit Registration System (NSEERS), Seized Asset and Case Tracking
System (SEACATS), U.S. Immigration and Customs Enforcement (ICE)
Student Exchange and Visitor Information System (SEVIS), Social
Security Administration (SSA) Master Death File, TECS, Terrorist
Screening Database (TSDB) through the DHS Watchlist Service (WLS), and
WebIDENT. If additional data is ingested and that additional data does
not require amendment of the categories of individuals or categories of
records in the SORN, the PIA for ATS will be updated to reflect that
information. The updated PIA can be found at www.dhs.gov/privacy.
Pointer System: ATS accesses and uses additional databases
without ingesting the data, including, but not limited to: CBP Border
Patrol Enforcement Tracking System (BPETS), Department of State
Consular Consolidated Database (CCD), commercial data aggregators,
CBP's Enterprise Geospatial Information Services (eGIS), DHS/USVISIT
IDENT, National Law Enforcement Telecommunications System (Nlets),
DOJ's National Crime Information Center (NCIC), the results of queries
in the FBI's Interstate Identification Index (III), and the National
Insurance Crime Bureau's (NICB's) private database of stolen vehicles.
If additional data is ingested and that additional data does not
require amendment of the categories of individuals or categories of
records in the SORN, the PIA for ATS will be updated to reflect that
information. The updated PIA can be found at www.dhs.gov/privacy.
DHS/CBP has reorganized the ATS routine uses to provide greater
uniformity across DHS systems. Consistent with DHS's information
sharing mission, information stored in ATS may be shared with other DHS
components, as well as appropriate Federal, State, local, tribal,
foreign, or international government agencies. This sharing will only
take place after DHS determines that the recipient has a need to know
the information to carry out functions consistent with the routine uses
set forth in the SORN.
DHS has exempted the system from the notification, access,
amendment, and certain accounting provisions of the Privacy Act of 1974
because of the law enforcement nature of ATS. Despite the exemptions
taken on this system of records, CBP and DHS are not exempting the
following records from the access and amendment provisions of the
Privacy Act: passenger name records (PNR) collected by CBP pursuant to
its statutory authority, 49 U.S.C. 44909, as implemented by 19 CFR
122.49d; Importer Security Filing (10+2 documentation) information; and
any records that were ingested by ATS where the source system of
records already provides access and/or amendment under the Privacy Act.
A traveler may obtain access to his or her PNR and request amendment as
appropriate, but records concerning the targeting rules, the responses
to rules, case events, law enforcement and/or intelligence data,
reports, projects developed by CBP analysts that may include public
source and/or classified information, information obtained through
memorandum of understanding or other arrangements because the
information is relevant to the border security mission of the
Department, or records exempted from access by the system from which
ATS ingested or accessed the information, will not be accessible to the
individual.
II. Privacy Act
The Privacy Act embodies fair information practice principles in a
statutory framework governing the means by which the U.S. 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. In
the Privacy Act, an individual is defined to encompass U.S. citizens
and lawful permanent residents. As a matter of policy (Privacy Policy
Guidance Memorandum 2007-1, most recently updated January 7, 2009), DHS
extends administrative Privacy Act protections to all persons,
regardless of citizenship, where systems of records maintains
information on both U.S. citizens and lawful permanent residents, as
well as visitors.
The Privacy Act allows government agencies to exempt systems of
records from certain provisions of the Act. 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.
As such, DHS is continuing to claim exemptions from certain
requirements of the Privacy Act for DHS/CBP-006--Automated Targeting
System (ATS) System of Records. Some information in DHS/CBP-006--
Automated Targeting System (ATS) System of Records 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' ability to obtain information from third
parties and other sources; to protect the privacy of third parties; and
to safeguard officially classified and/or controlled 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
[[Page 30435]]
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.
A notice of system of records for DHS/CBP-006--Automated Targeting
System (ATS) System of Records is also published in this issue of the
Federal Register.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend
Chapter I of Title 6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
1. The authority citation for Part 5 continues to read as follows:
Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat.
2135; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
2. Replace paragraph 45 at the end of Appendix C to Part 5, with
the following:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
45. The DHS/CBP-006--Automated Targeting System (ATS) System of
Records consists of electronic and paper records and will be used by
DHS and its components. The DHS/CBP-006--Automated Targeting System
(ATS) System of Records is a repository of information held by DHS
in connection with its several and varied missions and functions,
including, but not limited to the enforcement of civil and criminal
laws; investigations, inquiries, and proceedings there under;
national security and intelligence activities. The DHS/CBP-006--
Automated Targeting System (ATS) System of Records contains
information that is collected by, on behalf of, in support of, or in
cooperation with DHS and its components and may contain personally
identifiable information collected by other federal, state, local,
tribal, foreign, or international government agencies. The Secretary
of Homeland Security has exempted this system from certain
provisions of the Privacy Act as follows:
Pursuant to 5 U.S.C. 552a(j)(2), the system is exempt
from 5 U.S.C. 552a(c)(3) and (c)(4), (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g).
Pursuant to 5 U.S.C. 552a(j)(2), the system (except for
passenger name records (PNR) collected by CBP pursuant to its
statutory authority, 49 U.S.C. 44909, as implemented by 19 CFR
122.49d; Importer Security Filing (10+2 documentation) information;
and any records that were ingested by ATS where the source system of
records already provides access and/or amendment under the Privacy
Act) is exempt from 5 U.S.C. 552a(d)(1), (d)(2), (d)(3), and (d)(4).
Pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), the system
is exempt from 5 U.S.C. 552a(c)(3); (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I); and (f).
Pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), the system
(except for passenger name records (PNR) collected by CBP pursuant
to its statutory authority, 49 U.S.C. Sec. 44909, as implemented by
19 CFR 122.49d; Importer Security Filing (10+2 documentation)
information; and any records that were ingested by ATS where the
source system of records already provides access and/or amendment
under the Privacy Act) is exempt from (d)(1), (d)(2), (d)(3), and
(d)(4).
Exemptions from these particular subsections are justified, on a
case-by-case basis to be determined at the time a request is made,
for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation to the existence of that
investigation and reveal investigative interest on the part of DHS
as well as the recipient agency. Disclosure of the accounting would
therefore present a serious impediment to law enforcement efforts
and/or efforts to preserve national security. Disclosure of the
accounting would also permit the individual who is the subject of a
record to impede the investigation, to tamper with witnesses or
evidence, and to avoid detection or apprehension, which would
undermine the entire investigative process.
(b) From subsection (d) (Access 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 that
investigation and reveal investigative interest on the part of DHS
or another agency. Access to the records could permit the individual
who is the subject of a record to impede the investigation, to
tamper with witnesses or evidence, and to avoid detection or
apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement activities and would impose an
unreasonable administrative burden by requiring investigations to be
continually reinvestigated. In addition, permitting access and
amendment to such information could disclose classified and
security-sensitive information that could be detrimental to homeland
security.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of federal law, the accuracy of information obtained or
introduced occasionally may be unclear, or the information may not
be strictly relevant or necessary to a specific investigation. In
the interests of effective law enforcement, it is appropriate to
retain all information that may aid in establishing patterns of
unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject to the
nature or existence of the investigation, thereby interfering with
that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Individuals) because
providing such detailed information could impede law enforcement by
compromising the existence of a confidential investigation or reveal
the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency
Requirements) and (f) (Agency Rules), because portions of this
system are exempt from the individual access provisions of
subsection (d) for the reasons noted above, and therefore DHS is not
required to establish requirements, rules, or procedures with
respect to such access. Providing notice to individuals with respect
to existence of records pertaining to them in the system of records
or otherwise setting up procedures pursuant to which individuals may
access and view records pertaining to themselves in the system would
undermine investigative efforts and reveal the identities of
witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because
with the collection of information for law enforcement purposes, it
is impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with subsection (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)(1) (Civil Remedies) to the extent that
the system is exempt from other specific subsections of the Privacy
Act.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2012-12395 Filed 5-22-12; 8:45 am]
BILLING CODE 9110-06-P