[Federal Register Volume 73, Number 144 (Friday, July 25, 2008)]
[Proposed Rules]
[Pages 43374-43375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17122]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 73, No. 144 / Friday, July 25, 2008 / 
Proposed Rules  

[[Page 43374]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket Number DHS-2008-0024]


Privacy Act of 1974: Implementation of Exemptions; Border 
Crossing Information

AGENCY: Privacy Office, Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is proposing to amend its 
regulations to exempt portions of a system of records from certain 
provisions of the Privacy Act. Specifically, the Department proposes to 
exempt portions of the Border Crossing Information from one or more 
provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements. This document is a 
republication of the Treasury Department exemption regulation (title 
31, Code of Federal Regulations, part 1) which previously covered the 
Border Crossing Information as part of the Treasury Enforcement 
Communications System (TECS) System of Records Notice.

DATES: Written comments must be submitted on or before August 25, 2008.

ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0024 by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 1-866-466-5370.
     Mail: Hugo Teufel III, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Laurence E. Castelli (202-572-8790), Chief, Privacy Act Policy and 
Procedures Branch, U.S. Customs and Border Protection, Regulations and 
Rulings, Office of International Trade, Mint Annex, 1300 Pennsylvania 
Ave., NW., Washington, DC 20229. For privacy issues please contact: 
Hugo Teufel III (703-235-0780), Chief Privacy Officer, Privacy Office, 
U.S. Department of Homeland Security, Washington, DC 20528.

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 Border Crossing Information 
(BCI). U.S. Customs and Border Protection (CBP) is the agency 
responsible for collecting and reviewing border crossing information 
from travelers entering and departing the United States. This is 
consistent with CBP's overall border security and enforcement missions. 
Upon arrival in the United States, all individuals crossing the border 
are required to clear CBP. As part of this clearance process, CBP 
reserves the right to verify the identity, nationality, and 
admissibility of any person crossing the border. Additionally, CBP 
creates a record of the fact that the individual has entered the United 
States at a particular time and port of entry.
    BCI collects and maintains border crossing information on travelers 
crossing the United States border, which includes: certain biographical 
information; a photograph; certain itinerary information provided by 
air, sea, and eventually rail carriers; and the time and location of 
the border crossing; and, as necessary, the status of a secondary 
examination.
    BCI contains records pertaining to various categories of 
individuals, including: Passengers and crew who arrive, transit through 
or depart the United States by air, rail, 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; and persons crossing the land border at 
ports of entry.
    No exemption shall be asserted with respect to information 
maintained in the system that is collected from a person's travel 
documents or submitted by a government computer system in support of a 
proffered travel document, if that person, or his or her agent, seeks 
access or amendment of such information.
    This system, however, may contain records or information pertaining 
to the accounting of disclosures made from BCI to other law enforcement 
agencies (Federal, State, Local, Foreign, International or Tribal) in 
accordance with the published routine uses and 5 U.S.C. 552a(b)(7). For 
the accounting of these disclosures only, in accordance with 5 U.S.C. 
552a(j)(2), and (k)(2), DHS will claim the original exemptions for 
these records or information from subsection (c)(3), (e)(8), and (g) of 
the Privacy Act of 1974, as amended, as necessary and appropriate to 
protect such information.
    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.
    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.

[[Page 43375]]

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

    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 new paragraph 6 to read 
as follows:

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

* * * * *
    6. DHS/CBP-007, Border Crossing Information. This system may 
contain records or information pertaining to the accounting of 
disclosures made from BCI to other law enforcement and 
counterterrorism agencies (Federal, State, Local, Foreign, 
International or Tribal) in accordance with the published routine 
uses. For the accounting of these disclosures only, in accordance 
with 5 U.S.C. 552a (j)(2), and (k)(2), DHS will claim the original 
exemptions for these records or information from subsection (c)(3), 
(e)(8), and (g) of the Privacy Act of 1974, as amended, as necessary 
and appropriate to protect such information. Further, no exemption 
shall be asserted with respect to biographical or travel information 
submitted by, and collected from, a person's travel documents or 
submitted from a government computer system to support or to 
validate those travel documents. 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 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 of 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 violation of U.S. law, including investigations of 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 (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 or law enforcement investigations to the fact of 
those investigations when not previously known.
    (c) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

    Dated: July 18, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.

 [FR Doc. E8-17122 Filed 7-24-08; 8:45 am]
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