[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Rules and Regulations]
[Pages 68291-68293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27206]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 /
Rules and Regulations
[[Page 68291]]
DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 5
[Docket No. DHS-2008-0183]
Privacy Act of 1974: Implementation of Exemptions; Customs and
Border Protection Advanced Passenger Information System
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security is issuing a final rule to
amend its regulations to exempt portions of the system of records
entitled the Advanced Passenger Information System from certain
provisions of the Privacy Act. Specifically, the Department proposes to
exempt portions of the Advanced Passenger Information 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 November 18, 2008.
FOR FURTHER INFORMATION CONTACT: Hugo Teufel III, Chief Privacy
Officer, Privacy Office, Department of Homeland Security, Washington,
DC 20528; telephone 703-235-0780; facsimile: 866-466-5370.
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland Security (DHS), elsewhere in this
edition of the Federal Register, published a Privacy Act system of
records notice describing records in the Advance Passenger Information
System (APIS). APIS performs screening of both inbound and outbound
passengers and crew and, in the commercial air environment, crew
members overflying the United States. As part of this screening
function and to facilitate DHS's border enforcement mission, APIS data
is compared with information in other CBP law enforcement systems, as
well as with information from the TSDB, information on individuals with
outstanding wants or warrants, and information from other government
agencies regarding high risk parties and queries based on law
enforcement data, intelligence, and past case experience to assess
persons seeking to cross (or in the case of crew, overfly) the U.S.
border using a means of transport covered by CBP's APIS regulations.
APIS contains records pertaining to various categories of
individuals, including: Passengers and crew who arrive, transit through
or depart the United States by air or sea (and includes the U.S.
domestic portions of international travel for passengers and crew
flying into or out of the United States) and crew members on aircraft
that overfly the United States.
No exemption shall be asserted with respect to information
maintained in the system that is collected from a person and submitted
by that person's air or vessel carrier, if that person, or his or her
agent, seeks access or amendment of such information.
This system, however, may contain records or information recompiled
from or created from information contained in other systems of records,
which are exempt from certain provisions of the Privacy Act. This
system may also contain accountings of disclosures made with respect to
information maintained in the system. For these records or information
only, in accordance with 5 U.S.C. 552a(j)(2), and (k)(2), DHS will also
claim the original exemptions for these records or information from
subsections (c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2),
(3), (4)(G) through (I), (5), and (8); (f), and (g) of the Privacy Act
of 1974, as amended, as necessary and appropriate to protect such
information. Moreover, DHS will add these exemptions to Appendix C to 6
CFR Part 5, DHS Systems of Records Exempt from the Privacy Act. Such
exempt records or information may be law enforcement or national
security investigation records, law enforcement activity and encounter
records, or terrorist screening records.
DHS needs these exemptions in order to protect information relating
to law enforcement investigations from disclosure to subjects of
investigations and others who could interfere with investigatory and
law enforcement activities. Specifically, the exemptions are required
to: Preclude subjects of investigations from frustrating the
investigative process; avoid disclosure of investigative techniques;
protect the identities and physical safety of confidential informants
and of law enforcement personnel; ensure DHS's and other federal
agencies' ability to obtain information from third parties and other
sources; protect the privacy of third parties; and safeguard sensitive
information. The exemptions proposed here are standard law enforcement
exemptions exercised by a large number of federal law enforcement
agencies.
Nonetheless, DHS will examine each request on a case-by-case basis,
and, after conferring with the appropriate component or agency, 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.
Again, DHS will not assert any exemption with respect to
information maintained in the system that is collected from a person
and submitted by that person's air or vessel carrier, if that person,
or his or her agent, seeks access or amendment of such information.
Public Comments
We received two comments; neither was specific to the Notice of
Proposed Rule Making Privacy Act Exemptions.
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.
[[Page 68292]]
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 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 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: 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.
0
2. At the end of Appendix C to Part 5, add the following new paragraph
``12'' to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
12. DHS/CBP-005, Advanced Passenger Information System. A
portion of the following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3),
(4)(G) through (I), (5), and (8); (f), and (g); however, these
exemptions apply only to the extent that information in this system
records is recompiled or is created from information contained in
other systems of records subject to such exemptions pursuant to 5
U.S.C. 552a(j)(2), and (k)(2). Further, no exemption shall be
asserted with respect to information submitted by and collected from
the individual or the individual's representative in the course of
any redress process associated with this system of records. 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 or national security 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 records is recompiled or is created
from information contained in other systems of records subject to
exemptions for the following reasons:
(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 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 (c)(4) (Accounting for Disclosure, notice of
dispute) because portions of this system are exempt from the access
and amendment provisions of subsection (d).
(c) From subsections (d)(1), (2), (3), and (4) (Access to
Records) because these provisions concern individual access to and
amendment of certain records contained in this system, including law
enforcement counterterrorism, investigatory, and intelligence
records. Compliance with these provisions could alert the subject of
an investigation of the fact and nature of the investigation, and/or
the investigative interest of intelligence or law enforcement
agencies; compromise sensitive information related to national
security; interfere with the overall law enforcement process by
leading to the destruction of evidence, improper influencing of
witnesses, fabrication of testimony, and/or flight of the subject;
could identify a confidential source or disclose information which
would constitute an unwarranted invasion of another's personal
privacy; reveal a sensitive investigative or intelligence technique;
or constitute a potential danger to the health or safety of law
enforcement personnel, confidential informants, and witnesses.
Amendment of these records would interfere with ongoing
counterterrorism, law enforcement, or intelligence investigations
and analysis activities and impose an impossible administrative
burden by requiring investigations, analyses, and reports to be
continuously reinvestigated and revised.
(d) From subsection (e)(1) (Relevancy and Necessity of
Information) because it is not always possible for DHS or other
agencies to know in advance what information is relevant and
necessary for it to complete an identity comparison between the
individual seeking redress and a known or suspected terrorist. Also,
because DHS and other agencies may not always know what information
about an encounter with a known or suspected terrorist will be
relevant to law enforcement for the purpose of conducting an
operational response.
(e) From subsection (e)(2) (Collection of Information from
Individuals) because application of this provision could present a
serious impediment to counterterrorism, law enforcement, or
intelligence efforts in that it would put the subject of an
investigation, study, or analysis on notice of that fact, thereby
permitting the subject to engage in conduct designed to frustrate or
impede that activity. The nature of counterterrorism, law
enforcement, or intelligence investigations is such that vital
information about an individual frequently can be obtained only from
other persons who are familiar with such individual and his/her
activities. In such investigations it is not feasible to rely upon
information furnished by the individual concerning his own
activities.
(f) From subsection (e)(3) (Notice to Subjects), to the extent
that this subsection is interpreted to require DHS to provide notice
[[Page 68293]]
to an individual if DHS or another agency receives or collects
information about that individual during an investigation or from a
third party. Should the subsection be so interpreted, exemption from
this provision is necessary to avoid impeding counterterrorism, law
enforcement, or intelligence efforts by putting the subject of an
investigation, study, or analysis on notice of that fact, thereby
permitting the subject to engage in conduct intended to frustrate or
impede that activity.
(g) From subsections (e)(4)(G), (H) and (I) (Agency
Requirements) because portions of this system are exempt from the
access and amendment provisions of subsection (d).
(h) From subsection (e)(5) (Collection of Information) because
many of the records in this system coming from other system of
records are derived from other domestic and foreign agency record
systems and therefore it is not possible for DHS to vouch for their
compliance with this provision; however, the DHS has implemented
internal quality assurance procedures to ensure that data used in
the redress process is as thorough, accurate, and current as
possible. In addition, in the collection of information for law
enforcement, counterterrorism, and intelligence purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. With the passage of time, seemingly
irrelevant or untimely information may acquire new significance as
further investigation brings new details to light. The restrictions
imposed by (e)(5) would limit the ability of those agencies' trained
investigators and intelligence analysts to exercise their judgment
in conducting investigations and impede the development of
intelligence necessary for effective law enforcement and
counterterrorism efforts. The DHS has, however, implemented internal
quality assurance procedures to ensure that the data used in the
redress process is as thorough, accurate, and current as possible.
(i) 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, law enforcement, or intelligence investigations to
the fact of those investigations when not previously known.
(j) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of
subsection (d).
(k) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
Dated: November 10, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-27206 Filed 11-17-08; 8:45 am]
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