[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Proposed Rules]
[Pages 77536-77537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29875]


 ========================================================================
 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. 245 / Friday, December 19, 2008 / 
Proposed Rules  

[[Page 77536]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2008-0173]


Privacy Act of 1974: Implementation of Exemptions, DHS/CBP--014 
Regulatory Audit Archive System

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 revised and updated system of records pursuant to the 
Privacy Act of 1974 for the U.S. Customs and Border Protection 
Regulatory Audit Archive System (RAAS) system of records 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 criminal, civil, and 
administrative enforcement requirements.

DATES: Comments must be received on or before January 20, 2009.

ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0173, 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, Department 
of Homeland Security, Washington DC 20528.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. 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: For general questions please contact: 
Laurence E. Castelli (202-325-0280), Chief, Privacy Act Policy and 
Procedures Branch, U.S. Customs and Border Protection, Office of 
International Trade, Regulations & Rulings, Mint Annex, 799 Ninth 
Street, NW., Washington, DC 20001-4501. For privacy issues contact: 
Hugo Teufel III (703-235-0780), Chief Privacy Officer, Privacy Office, 
U.S. Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION: Background: Pursuant to the savings clause 
in the Homeland Security Act of 2002, Public Law 107-296, section 1512, 
116 Stat. 2310 (November 25, 2002), the Department of Homeland Security 
(DHS)/United States Customs and Border Protection (CBP) have relied on 
preexisting Privacy Act systems of records notices for the collection 
and maintenance of records that concern records on regulatory audits of 
customs brokers and other persons engaged in international trade, who 
are the subject of audits or within the scope of an audit.
    As part of its efforts to streamline and consolidate its record 
systems, DHS is updating and reissuing a DHS/CBP system of records 
under the Privacy Act (5 U.S.C. 552a) that deals with regulatory audits 
of customs brokers and other persons engaged in international trade. 
These audits are part of CBP's continuing oversight of Customs Brokers, 
who are licensed by CBP, pursuant to 19 U.S.C. 1641, to act as agents 
for importers in the entry of merchandise and payment of duties and 
fees. This SORN also notes the expansion of CBP's regulatory audit 
authority to other persons engaged in international trade.
    In this notice of proposed rulemaking, DHS now is proposing to 
exempt DHS/CBP--014 Regulatory Audit Archive System (RAAS), 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 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 DHS/CBP-014 Regulatory Audit Archive System (RAAS). Some 
information in DHS/CBP-014 Regulatory Audit Archive System (RAAS) 
system of records relates to official DHS national security, law 
enforcement, immigration, 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 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

[[Page 77537]]

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 DHS/CBP-014 Regulatory Audit 
Archive System (RAAS) 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: 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. 
Subpart B also issued under 5 U.S.C. 552a.

    2. Add at the end of Appendix C to Part 5, Exemption of Record 
Systems under the Privacy Act, the following new paragraph ``14'':

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

* * * * *
    14. The Department of Homeland Security/United States Customs 
and Border Protection--014 Regulatory Audit Archive System (RAAS) 
system of records consists of electronic and paper records and will 
be used by DHS and its components. DHS/CBP-014 Regulatory Audit 
Archive System (RAAS) 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 intelligence activities. DHS/CBP-014 
Regulatory Audit Archive System (RAAS) contains information that is 
collected by, on behalf of, in support of, or in cooperation with 
DHS and its components and may contain personally identifiable 
information collected by other Federal, State, local, tribal, 
foreign, or international government agencies. Pursuant to 5 U.S.C. 
552a(k)(2) of the Privacy Act, 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), (e)(4)(I), 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) (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 subsections (e)(4)(G), (H), and (I) (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.

    Dated: December 10, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.

 [FR Doc. E8-29875 Filed 12-18-08; 8:45 am]
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