[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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Rules and Regulations
Federal Register
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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.
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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
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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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