[Federal Register Volume 77, Number 100 (Wednesday, May 23, 2012)]
[Proposed Rules]
[Pages 30433-30435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12395]


 ========================================================================
 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. 77, No. 100 / Wednesday, May 23, 2012 / 
Proposed Rules  

[[Page 30433]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2012-0020]


Privacy Act of 1974: Implementation of Exemptions; Automated 
Targeting System

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY:  The Department of Homeland Security is giving concurrent 
notice of a updated system of records pursuant to the Privacy Act of 
1974 for the ``Department of Homeland Security/U.S. Customs and Border 
Protection--006--Automated Targeting System (ATS) System of Records'' 
and this proposed rulemaking. The Department is publishing this Notice 
of Proposed Rulemaking to ensure that the exemptions previously 
published are clearly and appropriately applied to all records in the 
updated system of records.

DATES: Comments must be received on or before June 22, 2012.

ADDRESSES: You may submit comments, identified by docket number DHS-
2012-0020, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 703-483-2999.
     Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy 
Office, 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), CBP Privacy Officer, Office of 
International Trade, U.S. Customs and Border Protection, Mint Annex, 
799 Ninth Street NW., Washington, DC 20229. For privacy issues please 
contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, 
Privacy Office, Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, the Department of 
Homeland Security proposes to update and expand an existing Department 
of Homeland Security SORN titled, U.S. Customs and Border Protection, 
DHS/CBP-006--Automated Targeting System (ATS) 72 FR 43650, August 6, 
2007.
    The SORN published elsewhere in the Federal Register is being 
updated and expanded to inform the public about changes to the 
Automated Targeting System (ATS) categories of individuals, categories 
of records, routine uses, access provisions, and sources of data. DHS/
CBP is updating and expanding the categories of individuals, categories 
of records and sources of records stored in ATS because it has certain 
data that it must ingest for performance purposes. The Privacy Impact 
Assessment (PIA), which DHS will publish on its Web site (http://www.dhs.gov/privacy) concurrently with the publication of the SORN in 
the Federal Register, provides a full discussion of the functional 
capabilities of ATS and its modules. DHS and CBP have previously 
exempted portions of ATS from the access, amendment, and public 
accounting provisions of the Privacy Act because it is a law 
enforcement system. DHS and CBP, however, will consider each request 
for access to records maintained in ATS to determine whether or not 
information may be released. DHS and CBP further note that despite the 
exemption taken on this system of records they are providing access and 
amendment to passenger name records (PNR) collected by CBP pursuant to 
its statutory authority, 49 U.S.C. 44909, as implemented by 19 CFR 
122.49d; Importer Security Filing (10+2 documentation) information; and 
any records that were ingested by ATS where the source system of 
records already provides access and/or amendment under the Privacy Act.
    ATS provides the following basic functionalities to support the CBP 
officer in identifying individuals and cargo that need additional 
review across the different means or modes of travel to and from the 
United States:
     Comparison: ATS compares information on travelers and 
cargo coming into and going out of the country against law enforcement 
and intelligence databases to identify individuals and cargo requiring 
additional scrutiny. For example, ATS compares information on 
individuals (identified as passengers, travelers, crewmembers, or 
persons appearing on documents supporting the movement of cargo) trying 
to enter the country or trying to enter merchandise into the country 
against the Terrorist Screening Database (TSDB), which ATS ingests from 
the DHS Watchlist Service (WLS), and outstanding wants and warrants.
     Rules: ATS compares existing information on individuals 
and cargo entering and exiting the country with patterns identified as 
requiring additional scrutiny. The patterns are based on CBP officer 
experience, analysis of trends of suspicious activity, and raw 
intelligence corroborating those trends. For example, ATS might compare 
information on cargo entering the country against a set of scenario-
based targeting rules that indicate a particular type of fish rarely is 
imported from a given country.
     Federated Query: ATS allows users to search data across 
many different databases and correlates it across the various systems 
to provide a person centric view of all data responsive to a query 
about the person's identity from the selected data bases.
    In order to do the above, ATS pulls data from many different source 
systems. In some instances ATS is the official record for the 
information, while in other instances ATS ingests and maintains the 
information in order to improve the functionality of the system or 
provides a pointer to the information in the underlying system. Below 
is a summary:
     Official Record: ATS maintains the official record for 
Passenger Name Records (PNR) collected by CBP pursuant to its statutory 
authority, 49

[[Page 30434]]

U.S.C. 44909, as implemented by 19 CFR 122.49d; for Importer Security 
Filing (10+2 documentation) information, which provides advanced 
information about cargo and related persons and entities for risk 
assessment and targeting purposes; for results of Cargo Enforcement 
Exams; for the combination of license plate, Department of Motor 
Vehicle (DMV) registration data and biographical data associated with a 
border crossing; for law enforcement and/or intelligence data, reports, 
and projects developed by CBP analysts that may include public source 
and/or classified information; and information obtained through 
memorandum of understanding or other arrangements because the 
information is relevant to the border security mission of the 
Department.
     Ingestion of Data: ATS maintains copies of key elements of 
certain CBP databases in order to minimize the processing time for 
searches on the operational systems and to act as a backup for certain 
operational systems, including, but not limited to: Automated 
Commercial Environment (ACE), Automated Commercial System (ACS), 
Automated Export System (AES), Advance Passenger Information System 
(APIS), Border Crossing Information (BCI), Consular Electronic 
Application Center (CEAC), Enforcement Integrated Database (EID) [which 
includes the Enforcement Case Tracking System (ENFORCE)], Electronic 
System for Travel Authorization (ESTA), Global Enrollment System (GES), 
Non-Immigrant Information System (NIIS), historical National Security 
Entry-Exit Registration System (NSEERS), Seized Asset and Case Tracking 
System (SEACATS), U.S. Immigration and Customs Enforcement (ICE) 
Student Exchange and Visitor Information System (SEVIS), Social 
Security Administration (SSA) Master Death File, TECS, Terrorist 
Screening Database (TSDB) through the DHS Watchlist Service (WLS), and 
WebIDENT. If additional data is ingested and that additional data does 
not require amendment of the categories of individuals or categories of 
records in the SORN, the PIA for ATS will be updated to reflect that 
information. The updated PIA can be found at www.dhs.gov/privacy.
     Pointer System: ATS accesses and uses additional databases 
without ingesting the data, including, but not limited to: CBP Border 
Patrol Enforcement Tracking System (BPETS), Department of State 
Consular Consolidated Database (CCD), commercial data aggregators, 
CBP's Enterprise Geospatial Information Services (eGIS), DHS/USVISIT 
IDENT, National Law Enforcement Telecommunications System (Nlets), 
DOJ's National Crime Information Center (NCIC), the results of queries 
in the FBI's Interstate Identification Index (III), and the National 
Insurance Crime Bureau's (NICB's) private database of stolen vehicles. 
If additional data is ingested and that additional data does not 
require amendment of the categories of individuals or categories of 
records in the SORN, the PIA for ATS will be updated to reflect that 
information. The updated PIA can be found at www.dhs.gov/privacy.
    DHS/CBP has reorganized the ATS routine uses to provide greater 
uniformity across DHS systems. Consistent with DHS's information 
sharing mission, information stored in ATS may be shared with other DHS 
components, as well as appropriate Federal, State, local, tribal, 
foreign, or international government agencies. This sharing will only 
take place after DHS determines that the recipient has a need to know 
the information to carry out functions consistent with the routine uses 
set forth in the SORN.
    DHS has exempted the system from the notification, access, 
amendment, and certain accounting provisions of the Privacy Act of 1974 
because of the law enforcement nature of ATS. Despite the exemptions 
taken on this system of records, CBP and DHS are not exempting the 
following records from the access and amendment provisions of the 
Privacy Act: passenger name records (PNR) collected by CBP pursuant to 
its statutory authority, 49 U.S.C. 44909, as implemented by 19 CFR 
122.49d; Importer Security Filing (10+2 documentation) information; and 
any records that were ingested by ATS where the source system of 
records already provides access and/or amendment under the Privacy Act. 
A traveler may obtain access to his or her PNR and request amendment as 
appropriate, but records concerning the targeting rules, the responses 
to rules, case events, law enforcement and/or intelligence data, 
reports, projects developed by CBP analysts that may include public 
source and/or classified information, information obtained through 
memorandum of understanding or other arrangements because the 
information is relevant to the border security mission of the 
Department, or records exempted from access by the system from which 
ATS ingested or accessed the information, will not be accessible to the 
individual.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which the U.S. 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. In 
the Privacy Act, an individual is defined to encompass U.S. citizens 
and lawful permanent residents. As a matter of policy (Privacy Policy 
Guidance Memorandum 2007-1, most recently updated January 7, 2009), DHS 
extends administrative Privacy Act protections to all persons, 
regardless of citizenship, where systems of records maintains 
information on both U.S. citizens and lawful permanent residents, as 
well as visitors.
    The Privacy Act allows government agencies to exempt systems of 
records from certain provisions of the Act. 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.
    As such, DHS is continuing to claim exemptions from certain 
requirements of the Privacy Act for DHS/CBP-006--Automated Targeting 
System (ATS) System of Records. Some information in DHS/CBP-006--
Automated Targeting System (ATS) 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' ability to obtain information from third 
parties and other sources; to protect the privacy of third parties; and 
to safeguard officially classified and/or controlled 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

[[Page 30435]]

number of federal law enforcement and intelligence agencies. 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.
    A notice of system of records for DHS/CBP-006--Automated Targeting 
System (ATS) System of Records 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:  6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 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. Replace paragraph 45 at the end of Appendix C to Part 5, with 
the following:

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

* * * * *
    45. The DHS/CBP-006--Automated Targeting System (ATS) System of 
Records consists of electronic and paper records and will be used by 
DHS and its components. The DHS/CBP-006--Automated Targeting System 
(ATS) System of Records 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; 
national security and intelligence activities. The DHS/CBP-006--
Automated Targeting System (ATS) System of Records 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 certain 
provisions of the Privacy Act as follows:
     Pursuant to 5 U.S.C. 552a(j)(2), the system is exempt 
from 5 U.S.C. 552a(c)(3) and (c)(4), (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g).
     Pursuant to 5 U.S.C. 552a(j)(2), the system (except for 
passenger name records (PNR) collected by CBP pursuant to its 
statutory authority, 49 U.S.C. 44909, as implemented by 19 CFR 
122.49d; Importer Security Filing (10+2 documentation) information; 
and any records that were ingested by ATS where the source system of 
records already provides access and/or amendment under the Privacy 
Act) is exempt from 5 U.S.C. 552a(d)(1), (d)(2), (d)(3), and (d)(4).
     Pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), the system 
is exempt from 5 U.S.C. 552a(c)(3); (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I); and (f).
     Pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), the system 
(except for passenger name records (PNR) collected by CBP pursuant 
to its statutory authority, 49 U.S.C. Sec.  44909, as implemented by 
19 CFR 122.49d; Importer Security Filing (10+2 documentation) 
information; and any records that were ingested by ATS where the 
source system of records already provides access and/or amendment 
under the Privacy Act) is exempt from (d)(1), (d)(2), (d)(3), and 
(d)(4).
    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 that 
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 that 
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 
unreasonable administrative burden by requiring investigations to be 
continually reinvestigated. In addition, permitting access and 
amendment to such information could disclose classified and 
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 the investigation, thereby interfering with 
that investigation and related law enforcement activities.
    (e) From subsection (e)(3) (Notice to Individuals) because 
providing such detailed information could impede law enforcement by 
compromising the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(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.
    (g) From subsection (e)(5) (Collection of Information) because 
with 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 subsection (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)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.

Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2012-12395 Filed 5-22-12; 8:45 am]
BILLING CODE 9110-06-P