[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Proposed Rules]
[Pages 33683-33685]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13815]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0114]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security, U.S. Customs and Border Protection, DHS/CBP--017 
Analytical Framework for Intelligence (AFI) System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/U.S. Customs and 
Border Protection--017 Analytical Framework for Intelligence (AFI) 
System of Records'' and this proposed rulemaking. In this proposed 
rulemaking, the Department proposes to exempt the system of records 
from one or more provisions of the Privacy Act because of criminal, 
civil, and administrative enforcement requirements.

DATES: Comments must be received on or before July 9, 2012.

ADDRESSES: You may submit comments, identified by docket number DHS-
2012-0114, 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, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) U.S. Customs and Border 
Protection (CBP) proposes to establish a new DHS system of records 
titled, ``DHS/U.S. Customs and Border Protection, DHS/CBP--017 
Analytical Framework for Intelligence (AFI) System of Records.''
    AFI enhances DHS's ability to identify, apprehend, and prosecute 
individuals who pose a potential law enforcement or security risk; and 
aids in the enforcement of customs and immigration laws, and other laws 
enforced by DHS at the border. AFI is used for the purposes of: (1) 
Identifying individuals, associations, or relationships that may pose a 
potential law enforcement or security risk, targeting cargo that may 
present a threat, and assisting intelligence product users in the field 
in preventing the illegal entry of people and goods, or identifying 
other violations of law; (2) conducting additional research on persons 
and/or cargo to understand whether there are patterns or trends that 
could assist in the identification of potential law enforcement or 
security risks; and (3) sharing finished intelligence products 
developed in connection with the above purposes with DHS employees who 
have a need to know in the performance of their official duties and who 
have appropriate clearances or permissions. Finished intelligence 
products are tactical, operational, and strategic law enforcement 
intelligence products that have been reviewed and approved for sharing 
with finished intelligence product users and authorities outside of 
DHS, pursuant to routine uses.
    To support its capability to query, efficiently, multiple data 
sources, AFI creates and maintains an index, which is a portion of the 
necessary and relevant data in existing operational

[[Page 33684]]

DHS source systems, by ingesting this data through and from the 
Automated Targeting System (ATS) and those source systems. In addition 
to the index, AFI provides AFI analysts with different tools that 
assist in detecting trends, patterns, and emerging threats, and in 
identifying non-obvious relationships.
    AFI improves the efficiency and effectiveness of CBP's research and 
analysis process by providing a platform for the research, 
collaboration, approval, and publication of finished intelligence 
products.
    AFI provides a platform for preparing responses to requests for 
information (RFIs). AFI will centrally maintain the requests, the 
research based on those requests, and the response to those requests. 
AFI allows analysts to perform federated queries against external data 
sources, including the Department of State, the Department of Justice/
FBI, as well as publicly and commercially available data sources and, 
eventually, classified data. AFI also enables an authorized user to 
search the Internet for additional information that may contribute to 
an intelligence gathering and analysis effort. AFI facilitates the 
sharing of finished intelligence products within DHS and tracks sharing 
outside of DHS.
    Two principal types of users will access AFI: DHS analysts and DHS 
finished intelligence product users. Analysts will use the system to 
obtain a more comprehensive view of data available to CBP, and then 
analyze and interpret that data using the visualization and 
collaboration tools accessible in AFI. If an analyst finds actionable 
terrorist, law enforcement, or intelligence information, he may use 
relevant information to produce a report, create an alert, or take some 
other appropriate action within DHS's mission and authorities. In 
addition to using AFI as a workspace to analyze and interpret data, 
analysts may submit or respond to RFIs, assign tasks, or create 
finished intelligence products based on their research or in response 
to an RFI. Finished intelligence product users are officers, agents, 
and employees of DHS who have been determined to have a need to know in 
the performance of their official duties and who have appropriate 
clearances or permissions. Finished intelligence product users will 
have more limited access to AFI, will not have access to the research 
space or tools, and will only view finished intelligence products that 
analysts published in AFI. Finished intelligence product users are not 
able to query the data from the source systems through AFI.
    AFI performs extensive auditing that records the search activities 
of all users to mitigate any risk of authorized users conducting 
searches for inappropriate purposes. AFI also requires that analysts 
re-certify annually any user-provided information marked as containing 
PII to ensure its continued relevance and accuracy. Analysts will be 
prompted to re-certify any documents that maintain PII which are not 
related to a finished intelligence product. Information that is not re-
certified is automatically purged from AFI. Account access is 
controlled by AFI passing individual user credentials to the 
originating system or through a previously approved certification 
process in another system in order to minimize the risk of unauthorized 
access. When an analyst conducts a search for products, AFI will only 
display those results that an individual user has permission to view.
    Consistent with DHS's information sharing mission, information 
stored in AFI may be shared consistent with the Privacy Act, including 
in accordance with the routine uses, and applicable laws as described 
below including sharing with other DHS components and appropriate 
federal, state, local, tribal, territorial, foreign, multilateral, or 
international government agencies. This sharing will only take place 
after DHS determines that the receiving component or agency has a need 
to know the information and the information will be used consistent 
with the Privacy Act, including the routine uses set forth in the SORN, 
in order to carry out national security, law enforcement, customs, 
immigration, intelligence, or other authorized functions.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/CBP--017 Analytical Framework for Intelligence (AFI) System 
of Records. Some information in AFI relates to official DHS national 
security, law enforcement, and immigration activities. The exemptions 
are required to preclude subjects from compromising an ongoing law 
enforcement, national security or fraud investigation; to avoid 
disclosure of investigative techniques; to protect the identities and 
physical safety of confidential informants and law enforcement 
personnel; and to ensure DHS's ability to obtain information from third 
parties and other sources.
    Pursuant to 5 U.S.C. 552a(j)(2), this system is exempted from the 
following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3) and 
(c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5), 
(e)(8); (f); and (g). Additionally, pursuant to 5 U.S.C. 552a(k)(1) and 
(2) this system is exempted from the following provisions of the 
Privacy Act: 5 U.S.C 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H); and 
(f). Many of the functions in this system require retrieving records 
from law enforcement systems. Where a record received from another 
system has been exempted in that source system under 5 U.S.C. 
552a(j)(2), (k)(1) and/or (k)(2), DHS will claim the same exemptions 
for those records that are claimed for the original primary systems of 
records from which they originated and claims any additional exemptions 
in accordance with this rule.
    The exemptions proposed here are standard for agencies where the 
information may contain investigatory materials compiled for law 
enforcement purposes. These exemptions are exercised by executive 
federal agencies. In appropriate circumstances, where compliance would 
not appear to interfere with or adversely affect the overall law 
enforcement process, the applicable exemptions may be waived on a case-
by-case basis.
    A notice of system of records for DHS/CBP--017 Analytical Framework 
for Intelligence (AFI) is also published in this issue of the Federal 
Register.

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, DHS extends 
administrative Privacy Act protections to all persons, regardless of 
citizenship, where a system 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 and a 
Final Rule to make clear to the public the reasons why a particular 
exemption is claimed.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.


[[Page 33685]]


    For the reasons stated in the preamble, DHS proposes to amend 
Chapter I of Title 6, Code of Federal Regulations, as follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

    1. The authority citation for Part 5 continues to read as follows:

    Authority: Public Law 107-296, 116 Stat. 2135; (6 U.S.C. 101 et 
seq.); 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. 
Subpart B also issued under 5 U.S.C. 552a.

    2. Add at the end of Appendix C to Part 5, the following new 
paragraph ``68'':

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    68. The DHS/CBP--017 Analytical Framework for Intelligence (AFI) 
System of Records consists of electronic and paper records and will 
be used by DHS and its components. The DHS/CBP--017 Analytical 
Framework for Intelligence (AFI) System of Records is a repository 
of information held by DHS to enhance DHS's ability to: identify, 
apprehend, and/or prosecute individuals who pose a potential law 
enforcement or security risk; aid in the enforcement of the customs 
and immigration laws, and other laws enforced by DHS at the border; 
and enhance United States security. This system also supports 
certain other DHS programs whose functions include, but are not 
limited to, the enforcement of civil and criminal laws; 
investigations, inquiries, and proceedings there under; and national 
security and intelligence activities. The DHS/CBP--017 Analytical 
Framework for Intelligence (AFI) 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 
any records that were ingested by AFI 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), 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), the system is exempt 
from (d)(1), (d)(2), (d)(3), and (d)(4).
     Pursuant to 5 U.S.C. 552a(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)(2), the system (except for 
any records that were ingested by AFI 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 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 and national security, 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 and national security 
activities.
    (e) From subsection (e)(3) (Notice to Individuals) because 
providing such detailed information could impede law enforcement and 
national security 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.

    Dated: June 4, 2012.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2012-13815 Filed 6-6-12; 8:45 am]
BILLING CODE 9110-06-P