[Federal Register Volume 74, Number 149 (Wednesday, August 5, 2009)]
[Rules and Regulations]
[Pages 38887-38889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18620]



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  Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / 
Rules and Regulations  

[[Page 38887]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2008-0169]


Privacy Act of 1974: Implementation of Exemptions; U.S. 
Immigration and Customs Enforcement-005 Trade Transparency Analysis and 
Research (TTAR) System

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of a new U.S. Immigration and 
Customs Enforcement system of records entitled the ``U.S. ICE-005 Trade 
Transparency Analysis and Research (TTAR)'' system from certain 
provisions of the Privacy Act. Specifically, the Department exempts 
portions of the TTAR 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 August 5, 2009.

FOR FURTHER INFORMATION CONTACT: Lyn Rahilly (202-732-3300), Privacy 
Officer, U.S. Immigration and Customs Enforcement, 500 12th Street, 
SW., Washington, DC 20024, e-mail: [email protected], or Mary Ellen 
Callahan (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) published a notice of 
proposed rulemaking in the Federal Register, 73 FR 64890, Oct. 31, 2008 
proposing to exempt portions of the U.S. ICE-005 Trade Transparency 
Analysis and Research (TTAR) system of records from one or more 
provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements. The TTAR system of records 
notice (SORN) was published concurrently in the Federal Register, 73 FR 
64967, Oct. 31, 2008. and comments were invited on both the proposed 
rule and SORN. No comments were received from the public regarding 
either the SORN or the proposed rule. Therefore, no changes have been 
made to the rule or the SORN, and DHS is implementing the final rule as 
published.
    In this rule, DHS is claiming exemption from certain requirements 
of the Privacy Act for TTAR because certain information in the system 
may contain information about ongoing law enforcement investigations. 
The 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).
    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 published here are standard law enforcement and 
national security exemptions exercised by a large number of Federal law 
enforcement and intelligence agencies. The exemptions do not 
necessarily apply to all records described in the TTAR SORN. 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.

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 civil or 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

[[Page 38888]]

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:  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.

0
2. At the end of appendix C to part 5, add the following new paragraph 
14 to read as follows:

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

* * * * *
    14. The U.S. ICE-005 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 
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, 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's 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

[[Page 38889]]

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: July 30, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-18620 Filed 8-4-09; 8:45 am]
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