[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
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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. 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

[[Page 58256]]

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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