[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.
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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
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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.
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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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