[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Rules and Regulations]
[Pages 68291-68293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27206]



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  Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / 
Rules and Regulations  

[[Page 68291]]



DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 5

[Docket No. DHS-2008-0183]


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

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

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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.

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

FOR FURTHER INFORMATION CONTACT: Hugo Teufel III, Chief Privacy 
Officer, Privacy Office, Department of Homeland Security, Washington, 
DC 20528; telephone 703-235-0780; 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 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 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.

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. 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

    Freedom of information; Privacy.

0
For the reasons stated in the preamble, DHS amends Chapter I of Title 
6, Code of Federal Regulations, as follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

0
1. The authority citation for Part 5 continues to read as follows:

    Authority: Public Law 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.


0
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. DHS/CBP-005, 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 
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) (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. E8-27206 Filed 11-17-08; 8:45 am]
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