[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Pages 45076-45077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20751]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0060]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Customs and Border Protection--014 Regulatory 
Audit Archive System of Records

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 Department of Homeland 
Security U.S. Customs and Border Protection system of records entitled 
the ``Department of Homeland Security U.S. Customs and Border 
Protection--014 Regulatory Audit Archive System of Records'' from 
certain provisions of the Privacy Act. Specifically, the Department 
exempts portions of the Department of Homeland Security U.S. Customs 
and Border Protection--014 Regulatory Audit Archive 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 31, 2009.

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: 
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 77536, December 19, 
2008, proposing 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. The system of records is the 
DHS/U.S. Customs and Border Protection (CBP)--014 Regulatory Audit 
Archive system. The DHS/CBP--014 Regulatory Audit Archive system of 
records notice was published concurrently in the Federal Register, 73 
FR 77807, December 19, 2008, and comments were invited on both the 
notice of proposed rulemaking and system of records notice. No comments 
were received.

Public Comments

    DHS received no comments on the notice of proposed rulemaking or 
the system of records notice. DHS will implement the rulemaking as 
proposed.

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. 
Subpart B also issued under 5 U.S.C. 552a.

0
2. Add at the end of Appendix C to Part 5, Exemption of Record Systems 
under the Privacy Act, the following new paragraph ``25'':

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

* * * * *
    25. The DHS/CBP--014 Regulatory Audit Archive system of records 
consists of electronic and paper records and will be used by DHS and 
its components. The DHS/CBP--014 Regulatory Audit Archive system 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 thereunder; and national 
security and intelligence activities. The DHS/CBP--014 Regulatory 
Audit Archive system 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. The Secretary of Homeland 
Security has exempted this system from the following provisions of 
the Privacy Act, subject to the limitations set forth in 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) 
pursuant to 5 U.S.C. 552a(k)(2). 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,

[[Page 45077]]

and potential witnesses, and confidential informants.

    Dated: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-20751 Filed 8-28-09; 8:45 am]
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