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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=20 regulations to exempt portions of the system of records entitled the = Advanced=20 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=20 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=20 Federal Register, published a Privacy Act system of records notice = describing=20 records in the Advance Passenger Information System (APIS). APIS = performs=20 screening of both inbound and outbound passengers and crew and, in the=20 commercial air environment, crew members overflying the United States. = As part=20 of this screening function and to facilitate DHS's border enforcement = mission,=20 APIS data is compared with information in other CBP law enforcement = systems, as=20 well as with information from the TSDB, information on individuals with=20 outstanding wants or warrants, and information from other government = agencies=20 regarding high risk parties and queries based on law enforcement data,=20 intelligence, and past case experience to assess persons seeking to = cross (or in=20 the case of crew, overfly) the U.S. border using a means of transport = covered by=20 CBP's APIS regulations.

APIS contains records pertaining to various categories of = individuals,=20 including: Passengers and crew who arrive, transit through or depart the = United=20 States by air or sea (and includes the U.S. domestic portions of = international=20 travel for passengers and crew flying into or out of the United States) = and crew=20 members on aircraft that overfly the United States.

No exemption shall be asserted with respect to information maintained = in the=20 system that is collected from a person and submitted by that person's = air or=20 vessel carrier, if that person, or his or her agent, seeks access or = amendment=20 of such information.

This system, however, may contain records or information recompiled = from or=20 created from information contained in other systems of records, which = are exempt=20 from certain provisions of the Privacy Act. This system may also contain = accountings of disclosures made with respect to information maintained = in the=20 system. For these records or information only, in accordance with 5 = U.S.C.=20 552a(j)(2), and (k)(2), DHS will also claim the original exemptions for = these=20 records or information from subsections (c)(3) and (4); (d)(1), (2), = (3), and=20 (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); (f), and (g) of = the=20 Privacy Act of 1974, as amended, as necessary and appropriate to protect = such=20 information. Moreover, DHS will add these exemptions to Appendix C to 6 = CFR Part=20 5, DHS Systems of Records Exempt from the Privacy Act. Such exempt = records or=20 information may be law enforcement or national security investigation = records,=20 law enforcement activity and encounter records, or terrorist screening=20 records.

DHS needs these exemptions in order to protect information relating = to law=20 enforcement investigations from disclosure to subjects of investigations = and=20 others who could interfere with investigatory and law enforcement = activities.=20 Specifically, the exemptions are required to: Preclude subjects of=20 investigations from frustrating the investigative process; avoid = disclosure of=20 investigative techniques; protect the identities and physical safety of=20 confidential informants and of law enforcement personnel; ensure DHS's = and other=20 federal agencies' ability to obtain information from third parties and = other=20 sources; protect the privacy of third parties; and safeguard sensitive=20 information. The exemptions proposed here are standard law enforcement=20 exemptions exercised by a large number of federal law enforcement = agencies.

Nonetheless, DHS will examine each request on a casebycase basis, = and, after=20 conferring with the appropriate component or agency, may waive = applicable=20 exemptions in appropriate circumstances and where it would not appear to = interfere with or adversely affect the law enforcement purposes of the = systems=20 from which the information is recompiled or in which it is = contained.

Again, DHS will not assert any exemption with respect to information=20 maintained in the system that is collected from a person and submitted = by that=20 person's air or vessel carrier, if that person, or his or her agent, = seeks=20 access or amendment of such information. Public Comments

We received two comments; neither was specific to the Notice of = Proposed Rule=20 Making Privacy Act Exemptions.
Regulatory Requirements

A. Regulatory Impact Analyses

Changes to Federal regulations must undergo several analyses. In = conducting=20 these analyses, DHS has determined:

1. Executive Order 12866 Assessment

This rule is not a significant regulatory action under Executive = Order 12866,=20 ``Regulatory Planning and Review'' (as amended). Accordingly, this rule = has not=20 been reviewed by the Office of Management and Budget (OMB). = Nevertheless, DHS=20 has reviewed this rulemaking, and concluded that there will not be any=20 significant economic impact.
[[Page 68292]]

2. Regulatory Flexibility Act Assessment

Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5 = U.S.C.=20 605(b), as amended by the Small Business Regulatory Enforcement and = Fairness Act=20 of 1996 (SBREFA), DHS certifies that this rule will not have a = significant=20 impact on a substantial number of small entities. The rule would impose = no=20 duties or obligations on small entities. Further, the exemptions to the = Privacy=20 Act apply to individuals, and individuals are not covered entities under = the=20 RFA. 3. International Trade Impact Assessment

This rulemaking will not constitute a barrier to international trade. = The=20 exemptions relate to criminal investigations and agency documentation = and,=20 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,=20 109 Stat. 48), requires Federal agencies to assess the effects of = certain=20 regulatory actions on State, local, and tribal governments, and the = private=20 sector. This rulemaking will not impose an unfunded mandate on State, = local, or=20 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=20 that DHS consider the impact of paperwork and other information = collection=20 burdens imposed on the public and, under the provisions of PRA section = 3507(d),=20 obtain approval from the Office of Management and Budget (OMB) for each=20 collection of information it conducts, sponsors, or requires through=20 regulations. DHS has determined that there are no current or new = information=20 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=20 relationship between the national Government and the States, or on the=20 distribution of power and responsibilities among the various levels of=20 government, and therefore will not have federalism implications.

D. Environmental Analysis

DHS has reviewed this action for purposes of the National = Environmental=20 Policy Act of 1969 (NEPA) (42 U.S.C. 43214347) and has determined that = this=20 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=20 Energy Policy and Conservation Act (EPCA) Public Law 94163, as amended = (42=20 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,=20 DHS amends Chapter I of Title 6, Code of Federal Regulations, as=20 follows:
PART 5DISCLOSURE OF RECORDS AND INFORMATION
1. The = authority=20 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.=20 301. Subpart A also issued under 5 U.S.C. 552. 2. At the end of Appendix = C to=20 Part 5, add the following new paragraph ``12'' to read as = follows:
Appendix C=20 to Part 5DHS Systems of Records Exempt From the Privacy Act

* * * * *

12. DHS/CBP005, Advanced Passenger Information System. A portion of = the=20 following system of records is exempt from 5 U.S.C. 552a(c)(3) and (4); = (d)(1),=20 (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); = (f), and=20 (g); however, these exemptions apply only to the extent that information = in this=20 system records is recompiled or is created from information contained in = other=20 systems of records subject to such exemptions pursuant to 5 U.S.C. = 552a(j)(2),=20 and (k)(2). Further, no exemption shall be asserted with respect to = information=20 submitted by and collected from the individual or the individual's=20 representative in the course of any redress process associated with this = system=20 of records. After conferring with the appropriate component or agency, = DHS may=20 waive applicable exemptions in appropriate circumstances and where it = would not=20 appear to interfere with or adversely affect the law enforcement or = national=20 security purposes of the systems from which the information is = recompiled or in=20 which it is contained. Exemptions from the above particular subsections = are=20 justified, on a casebycase basis to be determined at the time a request = is made,=20 when information in this system records is recompiled or is created from = information contained in other systems of records subject to exemptions = for the=20 following reasons:
(a) From subsection (c)(3) (Accounting for = Disclosure)=20 because making available to a record subject the accounting of = disclosures from=20 records concerning him or her would specifically reveal any = investigative=20 interest in the individual. Revealing this information could reasonably = be=20 expected to compromise ongoing efforts to investigate a known or = suspected=20 terrorist by notifying the record subject that he or she is under = investigation.=20 This information could also permit the record subject to take measures = to impede=20 the investigation, e.g., destroy evidence, intimidate potential = witnesses, or=20 flee the area to avoid or impede the investigation. (b) From subsection = (c)(4)=20 (Accounting for Disclosure, notice of dispute) because portions of this = system=20 are exempt from the access and amendment provisions of subsection = (d).
(c)=20 From subsections (d)(1), (2), (3), and (4) (Access to Records) because = these=20 provisions concern individual access to and amendment of certain records = contained in this system, including law enforcement counterterrorism,=20 investigatory, and intelligence records. Compliance with these = provisions could=20 alert the subject of an investigation of the fact and nature of the=20 investigation, and/or the investigative interest of intelligence or law=20 enforcement agencies; compromise sensitive information related to = national=20 security; interfere with the overall law enforcement process by leading = to the=20 destruction of evidence, improper influencing of witnesses, fabrication = of=20 testimony, and/or flight of the subject; could identify a confidential = source or=20 disclose information which would constitute an unwarranted invasion of = another's=20 personal privacy; reveal a sensitive investigative or intelligence = technique; or=20 constitute a potential danger to the health or safety of law enforcement = personnel, confidential informants, and witnesses. Amendment of these = records=20 would interfere with ongoing
counterterrorism, law enforcement, or=20 intelligence investigations and analysis activities and impose an = impossible=20 administrative burden by requiring investigations, analyses, and reports = to be=20 continuously reinvestigated and revised.
(d) From subsection (e)(1)=20 (Relevancy and Necessity of Information) because it is not always = possible for=20 DHS or other agencies to know in advance what information is relevant = and=20 necessary for it to complete an identity comparison between the = individual=20 seeking redress and a known or suspected terrorist. Also, because DHS = and other=20 agencies may not always know what information about an encounter with a = known or=20 suspected terrorist will be relevant to law enforcement for the purpose = of=20 conducting an operational response.
(e) From subsection (e)(2) = (Collection of=20 Information from Individuals) because application of this provision = could=20 present a serious impediment to counterterrorism, law enforcement, or=20 intelligence efforts in that it would put the subject of an = investigation,=20 study, or analysis on notice of that fact, thereby permitting the = subject to=20 engage in conduct designed to frustrate or impede that activity. The = nature of=20 counterterrorism, law
enforcement, or intelligence investigations is = such=20 that vital information about an individual frequently can be obtained = only from=20 other persons who are familiar with such individual and his/her = activities. In=20 such investigations it is not feasible to rely upon information = furnished by the=20 individual concerning his own activities.
(f) From subsection (e)(3) = (Notice=20 to Subjects), to the extent that this subsection is interpreted to = require DHS=20 to provide notice [[Page 68293]]
to an individual if DHS or another = agency=20 receives or collects information about that individual during an = investigation=20 or from a third party. Should the subsection be so interpreted, = exemption from=20 this provision is necessary to avoid impeding counterterrorism, law = enforcement,=20 or intelligence efforts by putting the subject of an investigation, = study, or=20 analysis on notice of that fact, thereby permitting the subject to = engage in=20 conduct intended to frustrate or impede that activity.
(g) From = subsections=20 (e)(4)(G), (H) and (I) (Agency
Requirements) because portions of = this system=20 are exempt from the access and amendment provisions of subsection = (d).
(h)=20 From subsection (e)(5) (Collection of Information) because many of the = records=20 in this system coming from other system of records are derived from = other=20 domestic and foreign agency record systems and therefore it is not = possible for=20 DHS to vouch for their compliance with this provision; however, the DHS = has=20 implemented internal quality assurance procedures to ensure that data = used in=20 the redress process is as thorough, accurate, and current as possible. = In=20 addition, in the collection of information for law enforcement,=20 counterterrorism, and intelligence purposes, it is impossible to = determine in=20 advance what information is accurate, relevant, timely, and complete. = With the=20 passage of time, seemingly irrelevant or untimely information may = acquire new=20 significance as further investigation brings new details to light. The=20 restrictions imposed by (e)(5) would limit the ability of those = agencies'=20 trained investigators and intelligence analysts to exercise their = judgment in=20 conducting investigations and impede the development of intelligence = necessary=20 for effective law enforcement and
counterterrorism efforts. The DHS = has,=20 however, implemented internal quality assurance procedures to ensure = that the=20 data used in the redress process is as thorough, accurate, and current = as=20 possible. (i) From subsection (e)(8) (Notice on Individuals) because to = require=20 individual notice of disclosure of information due to compulsory legal = process=20 would pose an impossible administrative burden on DHS and other agencies = and=20 could alert the subjects of counterterrorism, law enforcement, or = intelligence=20 investigations to the fact of those investigations when not previously = known.=20 (j) From subsection (f) (Agency Rules) because portions of this system = are=20 exempt from the access and amendment provisions of subsection = (d).
(k) From=20 subsection (g) (Civil Remedies) to the extent that the system is exempt = from=20 other specific subsections of the Privacy Act.

Dated: November 10, 2008.
Hugo Teufel III,
Chief Privacy = Officer,=20 Department of Homeland Security.
[FR Doc. E827206 Filed 111708; 8:45=20 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:=20 8664665370.

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