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Federal Register: November 18, 2008 (Volume 73, Number 223)

DOCID: fr18no08-1 FR Doc E8-27206

DEPARTMENT OF HOMELAND SECURITY

Homeland Security Department

CFR Citation: 6 CFR Part 5

Docket ID: [Docket No. DHS-2008-0183]

NOTICE: RULES

DOCID: fr18no08-1

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY:

Privacy Act of 1974: Implementation of Exemptions; Customs and Border
Protection Advanced Passenger Information System

DATES: Effective Date: This final rule is effective November 18, 2008.

DOCUMENT 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.

SUMMARY:

Privacy Act; Systems of Records,

SUPPLEMENTAL 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 casebycase 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. 1044,
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. 43214347) 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 94163, as amended (42
U.S.C. 6362). This rulemaking is not a major regulatory action under the
provisions of the EPCA.
List of Subjects in 6 CFR Part 5

Freedom of information; Privacy.
For the reasons stated in the preamble,
DHS amends Chapter I of Title 6, Code of Federal Regulations, as
follows:
PART 5DISCLOSURE OF RECORDS AND INFORMATION
1. The authority
citation for Part 5 continues to read as follows:

Authority: Public Law 107296, 116 Stat. 2135, 6 U.S.C. 101 et seq.; 5 U.S.C.
301. Subpart A also issued under 5 U.S.C. 552. 2. At the end of Appendix C to
Part 5, add the following new paragraph ``12'' to read as follows:
Appendix C
to Part 5DHS Systems of Records Exempt From the Privacy Act

* * * * *

12. DHS/CBP005, 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 casebycase 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. E827206 Filed 111708; 8:45
am]
BILLING CODE 441010P

FOR FURTHER INFORMATION CONTACT

Hugo Teufel III, Chief Privacy Officer, Privacy Office, Department of
Homeland Security, Washington, DC 20528; telephone 7032350780; facsimile:
8664665370.

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