[Federal Register Volume 72, Number 11 (Thursday, January 18, 2007)]
[Proposed Rules]
[Pages 2209-2211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-191]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket Number DHS-2007-0003]


Privacy Act of 1974: Implementation of Exemptions; Redress and 
Response Records System

AGENCY: Privacy Office, Office of the Secretary, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is amending its 
regulations to exempt portions of a new system of records from certain 
provisions of the Privacy Act. Specifically, the Department proposes to 
exempt portions of the Redress and Response Records System 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 February 20, 2007.

ADDRESSES: You may submit comments, identified by Docket Number DHS-
2007-0003 by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Facsimile: 866-466-5370.
     Mail: Hugo Teufel III, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT: Hugo Teufel III, Chief Privacy 
Officer, Privacy Office, Department of Homeland Security, Washington, 
DC 20528; telephone 571-227-3813; 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 DHS Redress and Response 
Records System. This system maintains records for the DHS Traveler 
Redress Inquiry Program (TRIP), which is the traveler redress mechanism 
being established by DHS in connection with the Rice-Chertoff 
Initiative, as well as in accordance with other policy and law. DHS 
TRIP will facilitate the public's ability to provide appropriate 
information to DHS for redress requests when they believe they have 
been denied entry, refused boarding for transportation, or identified 
for additional screening by DHS components or programs at their 
operational locations. Such locations include airports, seaports, train 
stations and land borders. DHS TRIP will create a cohesive process to 
address these redress requests across DHS.
    DHS TRIP will serve as a mechanism to share redress-related 
information and facilitate communication of redress results across DHS 
components. It will also facilitate efficient adjudication of redress 
requests. Once the information intake is complete, DHS TRIP will 
facilitate the transfer of or access to this information for the DHS 
components or other agencies redress process, which will address the 
redress request.
    This system contains records pertaining to various categories of 
individuals, including: individuals seeking redress or individuals on 
whose behalf redress is sought from DHS; individuals applying for 
redress on behalf of another individual; and DHS employees and 
contractors assigned to interact with the redress process.
    No exemption shall be asserted with respect to information 
submitted by and collected from individuals or their representatives in 
the course of any redress process associated with this System of 
Records.
    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. For these 
records or information only, in accordance with 5 U.S.C. 552a (j)(2), 
(k)(1), (k)(2), and (k)(5), 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.

[[Page 2210]]

    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' and other federal 
agencies' ability to obtain information from third parties and other 
sources; protect the privacy of third parties; and safeguard sensitive 
information.
    In addition, because such investigations may arise out of DHS 
programs and activities, information in this system of records may 
pertain to national security and related law enforcement matters. In 
such cases, allowing access to such information could alert subjects of 
such investigations into actual or potential criminal, civil, or 
regulatory violations, and could reveal, in an untimely manner, DHS' 
and other agencies' investigative interests in law enforcement efforts 
to preserve national security.
    Additionally, DHS needs these exemptions in order to protect 
information relating to background investigations from disclosure to 
subjects of investigations and others who could interfere with 
investigatory activities. Specifically, the exemptions are required to: 
withhold information to the extent it identifies witnesses promised 
confidentiality as a condition of providing information during the 
course of the background investigation; prevent subjects of 
investigations from frustrating the investigative process; avoid 
disclosure of investigative techniques; protect the privacy of third 
parties; ensure DHS' and other federal agencies' ability to obtain 
information from third parties and other sources; and safeguard 
sensitive information.
    The exemptions proposed here are standard law enforcement and 
national security exemptions exercised by a large number of federal law 
enforcement and intelligence agencies.
    Nonetheless, DHS will examine each separate 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 or national security purposes of the systems from which 
the information is recompiled or in which it is contained.
    Again, DHS shall not assert any exemption 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 the underlying System of Records.

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.
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

    Sensitive information, Privacy, Freedom of information.

    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: Pub. L. 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.

    2. At the end of Appendix C to Part 5, add the following new 
paragraph:

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

* * * * *
    3. DHS-ALL-005, Redress and Response Records 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

[[Page 2211]]

pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), and (k)(5). 
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) 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) 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) 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) 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) 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), to the extent that this subsection 
is interpreted to require DHS to provide notice 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) 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) 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) to the extent that the system is exempt 
from other specific subsections of the Privacy Act.

    Dated: January 12, 2007.
Hugo Teufel III,
Chief Privacy Officer.
[FR Doc. 07-191 Filed 1-12-07; 3:38 pm]
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