[Federal Register Volume 73, Number 212 (Friday, October 31, 2008)]
[Proposed Rules]
[Pages 64890-64892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25972]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2008-0107]


Privacy Act of 1974: Implementation of Exemptions; U.S. 
Immigration and Customs Enforcement Trade Transparency Analysis and 
Research (TTAR) System of Records

AGENCY: Privacy Office; DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) is giving concurrent 
notice of a new system of records pursuant to the Privacy Act of 1974 
for the U.S. Immigration and Customs Enforcement Trade Transparency 
Analysis and Research (TTAR) system and this proposed rulemaking. In 
this proposed rulemaking, the Department proposes to exempt portions of 
the system of records from one or more provisions of the Privacy Act 
because of

[[Page 64891]]

criminal, civil, and administrative enforcement requirements.

DATES: Comments must be received on or before December 1, 2008.

ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0107 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.
     Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
     Docket: For access to the docket to read background 
documents or comments received go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Lyn Rahilly, Privacy Officer, U.S. 
Immigration and Customs Enforcement, 425 I Street, NW., Washington, DC 
20536, e-mail: [email protected], or Hugo Teufel III (703-235-0780), 
Chief Privacy Officer, Privacy Office, U.S. Department of Homeland 
Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    The Trade Transparency Analysis and Research (TTAR) system of 
records is maintained for the purpose of enforcing criminal laws 
pertaining to trade by examining U.S. and foreign trade data to 
identify anomalies in patterns of trade that may indicate trade-based 
money laundering or other import-export crimes that ICE is responsible 
for investigating. TTAR contains trade data collected by other federal 
agencies and foreign governments, and financial data collected by U.S. 
Customs and Border Protection (CBP) and the U.S. Department of the 
Treasury Financial Crimes Enforcement Network (FinCEN).
    ICE uses the Data Analysis and Research Trade Transparency System 
(DARTTS), a software application and data repository, to conduct 
analysis of TTAR data. DARTTS does not seek to predict future behavior 
or ``profile'' individuals, i.e., look for individuals or entities who 
meet a certain pattern of behavior that has been pre-determined to be 
suspect. Instead, it analyzes and identifies trade and financial 
transactions that are statistically anomalous. Investigators gather 
additional facts, verify the accuracy of the DARTTS data, and use their 
judgment and experience to determine if the anomalous transactions are 
in fact suspicious and warrant further investigation. Not all anomalies 
lead to formal investigations. DARTTS can also identify links 
(relationships) between individuals and/or entities based on 
commonalities, such as identification numbers, addresses, or other 
information. These commonalities in and of themselves are not 
suspicious, but in the context of additional information they sometimes 
help investigators to identify potentially criminal activity and 
identify other suspicious transactions, witnesses, or suspects.

II. Privacy Act

    In this notice of proposed rulemaking, DHS now is proposing to 
exempt TTAR, in part, from certain provisions of the Privacy Act. The 
Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States Government 
collects, maintains, uses, and disseminates personally identifiable 
information. The Privacy Act applies to information that is maintained 
in a ``system of records.'' A ``system of records'' is a group of any 
records under the control of an agency from which information is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. 
Individuals may request their own records that are maintained in a 
system of records in the possession or under the control of DHS by 
complying with DHS Privacy Act regulations, 6 CFR part 5.
    The Privacy Act requires each agency to publish in the Federal 
Register a description of the type and character of each system of 
records that the agency maintains, and the routine uses that are 
contained in each system in order to make agency recordkeeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals in finding such files within the agency. The Privacy Act 
also allows Government agencies to exempt certain records from the 
access and amendment provisions. If an agency claims an exemption, 
however, it must issue a notice of proposed rulemaking to make clear to 
the public the reasons why a particular exemption is claimed.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for TTAR. Some information in TTAR relates to official DHS national 
security, law enforcement, and intelligence activities. These 
exemptions are needed to protect information relating to DHS activities 
from disclosure to subjects or others related to these activities. 
Specifically, the exemptions are required to preclude subjects of these 
activities from frustrating these processes; to avoid disclosure of 
activity techniques; to protect the identities and physical safety of 
confidential informants and of border management and law enforcement 
personnel; to ensure DHS's ability to obtain information from third 
parties and other sources; to protect the privacy of third parties; and 
to safeguard classified information. Disclosure of information to the 
subject of the inquiry could also permit the subject to avoid detection 
or apprehension.
    The exemptions proposed here are standard law enforcement and 
national security exemptions exercised by a large number of Federal law 
enforcement and intelligence agencies. In appropriate circumstances, 
where compliance would not appear to interfere with or adversely affect 
the law enforcement purposes of this system and the overall law 
enforcement process, the applicable exemptions may be waived on a case 
by case basis.
    A notice of system of records for the Department's TTAR System is 
also published in this issue of the Federal Register.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

    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 12 to read as follows:

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

* * * * *
    12. The Trade Transparency Analysis and Research (TTAR) System 
consists of electronic and paper records and will be used by the 
Department of Homeland Security (DHS). TTAR is a repository of 
information held by DHS in connection with its several and varied 
missions and functions, including, but not limited to: The 
enforcement of civil and criminal laws; investigations, inquiries, 
and proceedings there under; and national security and

[[Page 64892]]

intelligence activities. TTAR contains information that is collected 
by other federal and foreign government agencies and may contain 
personally identifiable information.
    Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, 
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); 
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and 
(e)(8); (f), and (g). Pursuant to 5 U.S.C. 552a(k)(2), this system 
is exempt from the following provisions of the Privacy Act, subject 
to the limitations set forth in those subsections: 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f). Exemptions 
from these particular subsections are justified, on a case-by-case 
basis to be determined at the time a request is made, for the 
following reasons:
    (a) From subsection (c)(3) and (4) (Accounting for Disclosures) 
because release of the accounting of disclosures could alert the 
subject of an investigation of an actual or potential criminal, 
civil, or regulatory violation to the existence of the 
investigation, and reveal investigative interest on the part of DHS 
as well as the recipient agency. Disclosure of the accounting would 
therefore present a serious impediment to law enforcement efforts 
and/or efforts to preserve national security. Disclosure of the 
accounting would also permit the individual who is the subject of a 
record to impede the investigation, to tamper with witnesses or 
evidence, and to avoid detection or apprehension, which would 
undermine the entire investigative process.
    (b) From subsection (d) (Access to Records) because access to 
the records contained in this system of records could inform the 
subject of an investigation of an actual or potential criminal, 
civil, or regulatory violation, to the existence of the 
investigation, and reveal investigative interest on the part of DHS 
or another agency. Access to the records could permit the individual 
who is the subject of a record to impede the investigation, to 
tamper with witnesses or evidence, and to avoid detection or 
apprehension. Amendment of the records could interfere with ongoing 
investigations and law enforcement activities and would impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated. In addition, permitting access and 
amendment to such information could disclose security-sensitive 
information that could be detrimental to homeland security.
    (c) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of Federal law, the accuracy of information obtained or 
introduced occasionally may be unclear or the information may not be 
strictly relevant or necessary to a specific investigation. In the 
interests of effective law enforcement, it is appropriate to retain 
all information that may aid in establishing patterns of unlawful 
activity.
    (d) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from 
the subject of an investigation would alert the subject to the 
nature or existence of an investigation, thereby interfering with 
the related investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information would impede law enforcement in 
that it could compromise investigations by: Revealing the existence 
of an otherwise confidential investigation and thereby provide an 
opportunity for the subject of an investigation to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative efforts; reveal the identity of witnesses in 
investigations, thereby providing an opportunity for the subjects of 
the investigations or others to harass, intimidate, or otherwise 
interfere with the collection of evidence or other information from 
such witnesses; or reveal the identity of confidential informants, 
which would negatively affect the informant's usefulness in any 
ongoing or future investigations and discourage members of the 
public from cooperating as confidential informants in any future 
investigations.
    (f) From subsections (e)(4)(G) and (H) (Agency Requirements), 
and (f) (Agency Rules) because portions of this system are exempt 
from the individual access provisions of subsection (d) for the 
reasons noted above, and therefore DHS is not required to establish 
requirements, rules, or procedures with respect to such access. 
Providing notice to individuals with respect to existence of records 
pertaining to them in the system of records or otherwise setting up 
procedures pursuant to which individuals may access and view records 
pertaining to themselves in the system would undermine investigative 
efforts and reveal the identities of witnesses, and potential 
witnesses, and confidential informants.
    (g) From subsection (e)(5) (Collection of Information) because 
in the collection of information for law enforcement purposes it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with (e)(5) would 
preclude DHS agents from using their investigative training and 
exercise of good judgment to both conduct and report on 
investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' ability to obtain, serve, and 
issue subpoenas, warrants, and other law enforcement mechanisms that 
may be filed under seal, and could result in disclosure of 
investigative techniques, procedures, and evidence.
    (i) From subsection (g) to the extent that the system is exempt 
from other specific subsections of the Privacy Act relating to 
individuals' rights to access and amend their records contained in 
the system. Therefore DHS is not required to establish rules or 
procedures pursuant to which individuals may seek a civil remedy for 
the agency's: refusal to amend a record; refusal to comply with a 
request for access to records; failure to maintain accurate, 
relevant timely and complete records; or failure to otherwise comply 
with an individual's right to access or amend records.

    Dated: October 24, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. E8-25972 Filed 10-30-08; 8:45 am]
BILLING CODE 4410-10-P