[Federal Register Volume 77, Number 155 (Friday, August 10, 2012)]
[Rules and Regulations]
[Pages 47767-47768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19336]



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  Federal Register / Vol. 77, No. 155 / Friday, August 10, 2012 / Rules 
and Regulations  

[[Page 47767]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0114]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Customs and Border Protection, DHS/CBP--017 
Analytical Framework for Intelligence (AFI) System of Records

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 newly established system 
of records titled, ``Department of Homeland Security/U.S. Customs and 
Border Protection, DHS/CBP--017 Analytical Framework for Intelligence 
(AFI) 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, DHS/CBP--017 
Analytical Framework for Intelligence (AFI) System of Records'' 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 10, 2012.

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 (202-343-4010), Chief Privacy Officer, 
Privacy Office, Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

Background

    The Department of Homeland Security (DHS) U.S. Customs and Border 
Protection (CBP) published a notice of proposed rulemaking in the 
Federal Register, 77 FR 33683 (June 7, 2012) 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/CBP--017 Analytical 
Framework for Intelligence (AFI) System of Records. The DHS/CBP--017 
Analytical Framework for Intelligence (AFI) system of records notice 
was published concurrently in the Federal Register, 77 FR 33753, June 
7, 2012, and comments were invited on both the Notice of Proposed 
Rulemaking (NPRM) and System of Records Notice (SORN).

Public Comments

    DHS received no comments with respect to the NPRM and five 
submissions commenting on the SORN.

NPRM

    DHS received no comments on the NPRM.

SORN

    DHS received twelve distinct comments from four individuals in 
response to the SORN.
    Comment: DHS/CBP received two comments inquiring as to whether or 
not the results generated from AFI will be released to the public, or 
if applicable, a statement from DHS that all of the expected results 
generated will not be permitted to be disclosed to the public.
    Response: DHS/CBP has taken an exemption from the access provisions 
of the Privacy Act for the information created in AFI. The 
applicability of this exemption will be reviewed in the context of each 
request for access. DHS/CBP separately may share information generated 
through AFI with the public, or specific members of the public, in 
accordance with three specific routine uses identified in the AFI SORN: 
routine use K where the member of the public is a possible informant; 
routine use O where the member of the public is possible target of 
terrorist activity; and routine use Q where the DHS Chief Privacy 
Officer in consultation with the Office of General Counsel identifies a 
legitimate public interest in the disclosure of information. In all 
instances, application of a particular routine use is subject to the 
limitations set forth in each respective routine use.
    Comment: DHS/CBP received one comment requesting the name of the 
Congressional oversight committees that will have access to the 
information concerning AFI.
    Response: DHS/CBP has briefed the House Permanent Select Committee 
on Intelligence, the Senate Select Committee on Intelligence, and the 
House Committee on Homeland Security on AFI. These Committees and the 
Senate Committee on Homeland Security and Government Affairs retain 
jurisdiction over the purpose and mission of AFI and will receive 
future briefings upon request and as appropriate. See 5 U.S.C. Sec.  
552a(6). The Committees and their staff will not have regular log-in 
access to AFI.
    Comment: DHS/CBP received nine comments related to the staffing 
requirements, capital costs, and operating costs of AFI and the length 
of time the system is expected to operate before it must be replaced 
with new technologies.
    Response: This information can be found on the Federal IT Dashboard 
available through the following link: http://www.itdashboard.gov/investment?buscid=315.
    After consideration of public comments, the Department will 
implement the rulemaking as proposed.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

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


0
2. Add at the end of Appendix C to Part 5, the following new paragraph 
``69'':

[[Page 47768]]

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

* * * * *
    69. The DHS/CBP--017 Analytical Framework for Intelligence (AFI) 
System of Records consists of electronic and paper records and will 
be used by DHS and its components. The DHS/CBP--017 Analytical 
Framework for Intelligence (AFI) System of Records is a repository 
of information held by DHS to enhance DHS's ability to: Identify, 
apprehend, and/or prosecute individuals who pose a potential law 
enforcement or security risk; aid in the enforcement of the customs 
and immigration laws, and other laws enforced by DHS at the border; 
and enhance United States security. This system also supports 
certain other DHS programs whose functions include, but are not 
limited to, the enforcement of civil and criminal laws; 
investigations, inquiries, and proceedings there under; and national 
security and intelligence activities. The DHS/CBP--017 Analytical 
Framework for Intelligence (AFI) 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.
    (a) The Secretary of Homeland Security has exempted this system 
from certain provisions of the Privacy Act as follows:
    (1) 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).
    (2) Pursuant to 5 U.S.C. 552a(j)(2), the system (except for any 
records that were ingested by AFI 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).
    (3) Pursuant to 5 U.S.C. 552a(k)(1), 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).
    (4) Pursuant to 5 U.S.C. 552a(k)(1), the system is exempt from 
(d)(1), (d)(2), (d)(3), and (d)(4).
    (5) Pursuant to 5 U.S.C. 552a(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).
    (6) Pursuant to 5 U.S.C. 552a(k)(2),the system (except for any 
records that were ingested by AFI 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).
    (b) 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:
    (1) 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.
    (2) 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 security-sensitive 
information that could be detrimental to homeland security.
    (3) 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 and national security, it 
is appropriate to retain all information that may aid in 
establishing patterns of unlawful activity.
    (4) 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 and national security 
activities.
    (5) From subsection (e)(3) (Notice to Individuals) because 
providing such detailed information could impede law enforcement and 
national security by compromising the existence of a confidential 
investigation or reveal the identity of witnesses or confidential 
informants.
    (6) 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.
    (7) 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.
    (8) 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.
    (9) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.

    Dated: July 31, 2012.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2012-19336 Filed 8-9-12; 8:45 am]
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