[Federal Register Volume 78, Number 184 (Monday, September 23, 2013)]
[Proposed Rules]
[Pages 58254-58256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22691]
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Proposed Rules
Federal Register
________________________________________________________________________
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. 78, No. 184 / Monday, September 23, 2013 /
Proposed Rules
[[Page 58254]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS 2013-0021]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/U.S. Customs and Border Protection--019 Air and
Marine Operations Surveillance System (AMOSS) System of Records
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 newly established system of records pursuant to the Privacy
Act of 1974 for the ``Department of Homeland Security/U.S. Customs and
Border Protection--019 Air and Marine Operations Surveillance System
(AMOSS) System of Records'' and this proposed rulemaking. In this
proposed rulemaking, the Department proposes 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.
DATES: Comments must be received on or before October 23, 2013.
ADDRESSES: You may submit comments, identified by docket number DHS
2013-0021, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 202-343-4010.
Mail: Jonathan R. Cantor, Acting 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 Castelli, (202) 325-0280, Privacy Officer, U.S. Customs and
Border Protection, Washington, DC 20229. For privacy issues please
contact: Jonathan R. Cantor (202-343-1717), Acting Chief Privacy
Officer, Privacy Office, Department of Homeland Security, Washington,
DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the
Department of Homeland Security (DHS)/U.S. Customs and Border
Protection (CBP) proposes to establish a new DHS system of records
titled, ``DHS/CBP--019 Air and Marine Operations Surveillance System
(AMOSS) System of Records.''
The AMOSS System of Records Notice (SORN) is being published
because AMOSS stores personally identifiable information in a system of
records. AMOSS is a sophisticated radar processing system that supports
the concerted and cooperative effort of air, land, and sea vehicles;
field offices; and command and control centers staffed by law
enforcement officers (LEO), detection enforcement officers (DEO),
pilots, crew, and Air and Marine Operations Center (AMOC) support staff
in monitoring approaches to the U.S. border to detect illicit
trafficking and direct interdiction actions, as appropriate. AMOSS also
supports domestic operations in conjunction with other domestic law
enforcement agencies by tracking domestic flights, as well as providing
air traffic monitoring for air defense purposes. By processing a
collection of external data imposed over a zooming-capable screen,
AMOSS provides a real-time picture of air activity over a wide portion
of North America, thus allowing system operators to discriminate
between normal and suspicious air, ground, and marine vehicle movement.
Much of the external data processed by AMOSS does not contain
Personally Identifiable Information (PII) and is supplied to AMOSS by
means of networked external sources. For instance, global positioning
systems (GPS), maps, datasets from radar plot data, track data, and
flight plan data are all incorporated to enhance the system operator's
ability to discriminate between normal and suspicious aviation
movement.
The collection of information in AMOSS is authorized primarily by
the following authorities: 6 U.S.C. 202; the Tariff Act of 1930, as
amended, including 19 U.S.C. 1590; 19 U.S.C. 2075(b)(2)(B)(3); the
Immigration and Nationality Act (INA), 8 U.S.C. 1101, et seq.,
including 8 U.S.C. 1103, 1225, and 1324; and the Immigration Reform and
Immigrant Responsibility Act of 1996, Public Law 104-208; Presidential
Directive 47/Homeland Security Presidential Directive 16 (NSPD-47/HSPD-
16); and DHS Delegation No. 7010.3 (May 11, 2006).
No exemption shall be asserted with respect to aircraft data
collected from the FAA that is maintained in AMOSS. However, this FAA
data may be shared with law enforcement and/or intelligence agencies
pursuant to the above routine uses. The Privacy Act requires DHS
maintain an accounting of the disclosures made pursuant to all routine
uses. Disclosing the fact that a law enforcement or intelligence agency
has sought particular records may affect ongoing law enforcement or
intelligence activity. As such, pursuant to 5 U.S.C. 552a(j)(2), DHS
will claim an exemption from (c)(3); (e)(8); and (g)(1) of the Privacy
Act of 1974, as amended, as is necessary and appropriate to protect
this information. Further, DHS will claim exemption from subsection
(c)(3) of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C.
552a(k)(2) as is necessary and appropriate to protect this information.
The Secretary of Homeland Security, pursuant to 5 U.S.C.
552a(j)(2), has exempted all other AMOSS data from the following
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3) and (4); (d);
(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), and
(e)(8); (f); and (g)(1). Additionally, the Secretary of Homeland
Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted this non-FAA
source data in AMOSS from the following provisions of the Privacy Act:
5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and
(f). When a record received from another system has been exempted in
that source system under 5 U.S.C. 552a(j)(2), DHS will claim the same
exemptions for those records that are claimed for the original primary
[[Page 58255]]
systems of records from which they originated and claims any additional
exemptions set forth here.
II. Privacy Act
The Privacy Act embodies fair information practice principles in a
statutory framework governing the means by which federal government
agencies collect, maintain, use, and disseminate 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, DHS extends administrative Privacy Act protections to all
individuals when systems of records maintain information on U.S.
citizens, lawful permanent residents, and visitors.
The Privacy Act allows government agencies to exempt certain
records from the access and amendment provisions. 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.
DHS is claiming exemptions from certain requirements of the Privacy
Act for DHS/U.S. Customs and Border Protection--019 Air and Marine
Operations Surveillance System (AMOSS) System of Records. Some
information in DHS U.S. Customs and Border Protection--019 Air and
Marine Operations Surveillance System (AMOSS) 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's ability to obtain information
from third parties and other sources; and to protect the privacy of
third parties. Disclosure of information to the subject of the inquiry
could also permit the subject to avoid detection or apprehension.
In appropriate circumstances, when 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. Moreover, no
exemption shall be asserted with respect to information maintained in
the system as it relates to aircraft data collected from the FAA, aside
from the accounting of disclosures with law enforcement and/or
intelligence agencies pursuant to the routine uses in this SORN.
A notice of system of records for DHS U.S. Customs and Border
Protection--019 Air and Marine Operations Surveillance System (AMOSS)
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
0
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.
0
2. Add paragraph ``72'' at the end of Appendix C to Part 5 to read as
follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
72. The DHS/U.S. Customs and Border Protection--019 Air and
Marine Operations Surveillance System (AMOSS) System of Records
consists of electronic and paper records and will be used by DHS and
its components. The DHS/U.S. Customs and Border Protection--019 Air
and Marine Operations Surveillance System (AMOSS) 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/U.S. Customs and
Border Protection--019 Air and Marine Operations Surveillance System
(AMOSS) 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) No exemption shall be asserted with respect to aircraft data
collected from the Federal Aviation Administration (FAA) that is
maintained in AMOSS. However, this FAA data may be shared with law
enforcement and/or intelligence agencies pursuant to the routine
uses listed in the SORN. The Privacy Act requires DHS to maintain an
accounting of the disclosures made pursuant to all routine uses.
Disclosing the fact that a law enforcement or intelligence agency
has sought particular records may affect ongoing law enforcement or
intelligence activity. As such, pursuant to 5 U.S.C. 552a(j)(2), DHS
will claim an exemption from (c)(3); (e)(8); and (g)(1) of the
Privacy Act of 1974, as amended, as is necessary and appropriate to
protect this information. Further, DHS will claim exemption from
subsection (c)(3) of the Privacy Act of 1974, as amended, pursuant
to 5 U.S.C. 552a(k)(2) as is necessary and appropriate to protect
this information.
(b) The Secretary of Homeland Security, pursuant to exemption 5
U.S.C. 552a(j)(2) has exempted all other AMOSS data from the
following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3) and
(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I),
(e)(5), and (e)(8); (f), and (g)(1). Additionally, the Secretary of
Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted
this non-FAA source data in AMOSS from the following provisions of
the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I); and (f).
(c) When a record received from another system has been exempted
in that source system under 5 U.S.C. 552a(j)(2), DHS will claim the
same exemptions for those records that are claimed for the original
primary systems of records from which they originated and claims any
additional exemptions set forth here.
(d) 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
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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, 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 activities.
(5) From subsection (e)(3) (Notice to Subjects) 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.
(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, 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: August 6, 2013.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2013-22691 Filed 9-20-13; 8:45 am]
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