[Federal Register Volume 72, Number 135 (Monday, July 16, 2007)]
[Rules and Regulations]
[Pages 38750-38753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13564]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket Number DHS-2007-0047]
Privacy Act of 1974: Implementation of Exemptions; Redress and
Response Records System
AGENCY: Privacy Office, Office of the Secretary, 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 new system of records
entitled the Redress and Response Records System from certain
provisions of the Privacy Act. Specifically, the Department proposes to
exempt portions of the Redress and Response Records 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 July 16, 2007.
FOR FURTHER INFORMATION CONTACT: Hugo Teufel III, Chief Privacy
Officer, Privacy Office, Department of Homeland Security, Washington,
DC 20528; telephone 703-235-0780; facsimile: 866-466-5370.
SUPPLEMENTARY INFORMATION:
Background
On January 18, 2007, DHS published notice of a new Privacy Act
system of records entitled ``Redress and Response Records System, DHS/
ALL-005.'' \1\ The DHS Redress and Response Records System maintains
records for the DHS Traveler Redress Inquiry Program (TRIP), which is
the traveler redress mechanism established by DHS in connection with
the Rice-Chertoff Initiative, as well as in accordance with other
policy and law. DHS TRIP will facilitate the public's ability to
provide appropriate information to DHS for redress requests when they
believe they have been denied entry, refused boarding for
transportation, or identified for additional screening by DHS
components or programs at their operational locations. Such locations
include airports, seaports, train stations, and land borders. DHS TRIP
will create a cohesive process to address these redress requests across
DHS.
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\1\ 72 FR 2296 (January 18, 2007).
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DHS TRIP will serve as a mechanism to share redress-related
information and facilitate communication of redress results across DHS
components. It will also facilitate efficient adjudication of redress
requests. Once the information intake is complete, DHS TRIP will
facilitate the transfer of or access to this information for the DHS
components or other agencies that will address the redress request.
This system contains records pertaining to various categories of
individuals, including: Individuals seeking redress or individuals on
whose behalf redress is sought from DHS; individuals applying for
redress on behalf of another individual; and DHS employees and
contractors assigned to interact with the redress process.
No exemption shall be asserted with respect to information
submitted by and collected from individuals or their representatives in
the course of any redress process associated with this System of
Records.
[[Page 38751]]
In conjunction with publication of the DHS Redress and Response
Records System system of records notice, DHS initiated a rulemaking to
exempt this system of records from a number of provisions of the
Privacy Act,\2\ because this system may contain records or information
recompiled from or created from information contained in other systems
of records, which are exempt from certain provisions of the Privacy
Act. For these records or information only, in accordance with 5 U.S.C.
552a(j)(2), (k)(1), (k)(2), and (k)(5), DHS will also claim the
original exemptions for these records or information from subsections
(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G)
through (I), (5), and (8); (f), and (g) of the Privacy Act of 1974, as
amended, as necessary and appropriate to protect such information. Such
exempt records or information may be law enforcement or national
security investigation records, law enforcement activity and encounter
records, or terrorist screening records.
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\2\ 72 FR 2209 (January 18, 2007).
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Public Comments
DHS received four comments on the proposed rule and two on the DHS
Redress and Response Records System system of records notice.
With regard to the comments received on the proposed rule, two of
the four comments received via the docket did not address this
particular proposed rule and appear to be mistaken submissions. One
comment received did not specifically provide comments, but posed a
number of questions. The remaining comment provided observations with
regard to the DHS Traveler Redress Inquiry Program (DHS TRIP) and
watchlists, and comments regarding the system of records notice and the
proposed rule.
With regard to the two comments received on the system of records
notice, one comment was a duplicate of the last noted comment on the
proposed rule. The remaining comment was a general comment regarding
the DHS TRIP program and did not address issues concerning the system
or records notice or the proposed rule.
A discussion for response to the applicable comments received is
below.
The comments received questioned the use of exemptions to
provisions of the Privacy Act of 1974 as proposed. Generally, DHS
proposed to use the exemptions in order to protect information relating
to law enforcement investigations from disclosure to subjects of
investigations and others who could interfere with investigatory and
law enforcement activities. Specifically, the exemptions are required
to: Preclude subjects of investigations from frustrating the
investigative process; avoid disclosure of investigative techniques;
protect the identities and physical safety of confidential informants
and of law enforcement personnel; ensure DHS's and other federal
agencies' ability to obtain information from third parties and other
sources; protect the privacy of third parties; and safeguard sensitive
information.
Nevertheless, under the proposed rule, these exemptions will only
be claimed for information coming into this system of records from
systems that already claim exemptions on such information, and no
exemptions would be claimed over information collected directly from an
individual for input into this system of records. In fact, both the
system of records notice and the proposed rule indicate that as part of
the process for responding to requests, if information about an
individual contained in this system of records comes from a system
claiming exemptions, a review will occur to determine if the need to
claim exemption from provisions of the Privacy Act with regard to a
particular individual's information continues to be necessary. This
approach to claiming exemptions will not only provide better access to
information and directly resolve the concerns raised in the comments
received, but it will also serve to enhance the redress process by
ensuring the accuracy and relevancy of information in underlying
systems of records.
One comment suggested that this provision is meaningless; however,
due to the appropriate routine uses included in the system of records
notice, because the routine uses regarding the sharing of information
for law enforcement or counter-intelligence/counter-terrorism purposes
work independently of whether or not information is disclosed back to
the individual and therefore is not meaningless. As noted above, DHS
seeks only to protect information from inappropriate disclosure that
originates from systems already claiming exemptions; however, on a
case-by-case basis, DHS will examine whether or not the exemptions
continue to be necessary with regard to the particular individual's
information.
Additionally, one comment suggests that the exemptions are
unnecessary because, in the context of the information potentially held
in this system of records, an individual will ``know'' that he or she
is under investigation and therefore the underlying reason for needing
the exemptions is moot; however, an individual's mere belief that his
or her perceived delay or inconvenience while traveling does not
provide that individual with definitive knowledge of whether or not he
or she was the subject of an investigation, even if that individual
already sought resolution through the DHS TRIP.
The comments received questioned the general need for exempting
some records of this system from the provisions of the Privacy Act.
Because information in this system of records may be related to
investigations that may arise out of DHS programs and activities, such
information may pertain to national security and/or law enforcement
matters. In such cases, allowing access to such information could alert
subjects of such investigations of actual or potential criminal, civil,
or regulatory violations, and could reveal, in an untimely manner,
DHS's and other agencies' investigative interests in law enforcement
efforts to preserve national security.
Additionally, DHS needs to have the ability to claim these
exemptions in order to protect information relating to investigations
from disclosure to subjects of investigations and others who could
interfere with investigatory activities. Specifically, the exemptions
are required to: Withhold information to the extent it identifies
witnesses promised confidentiality as a condition of providing
information during the course of an investigation; prevent subjects of
investigations from frustrating the investigative process; avoid
disclosure of investigative techniques; protect the privacy of third
parties; ensure DHS' and other federal agencies' ability to obtain
information from third parties and other sources; and safeguard
sensitive information. The exemptions proposed here are standard law
enforcement and national security exemptions exercised by federal law
enforcement and intelligence agencies.
One comment asserts that this rule will create new exemptions for
other systems of records. Nonetheless, this rule cannot exempt other
existing systems of records from provisions of the Privacy Act. The
purpose of this rule is to protect appropriately information coming
into this system of records from systems that independently claim
exemptions.
Further, the comment indicates that there is no ``alternative
venue'' for individuals regarding their information; however, the DHS
TRIP provides individuals with appropriate redress mechanisms in
connection with travel-
[[Page 38752]]
related encounters or circumstances, including the correction or
updating of an individual's information. Furthermore, when an
individual requests access to his or her information, DHS will examine
each request on a case-by-case basis, and, after conferring with the
appropriate component or agency, may waive applicable exemptions in
appropriate circumstances where it would not appear to interfere with
or adversely affect the law enforcement or national security purposes
of the systems from which the information is recompiled or in which it
is contained.
Again, DHS shall not assert any exemption with respect to
information submitted by and collected from the individual or the
individual's representative in the course of any redress process
associated with the underlying system of records.
Regulatory Requirements
A. Regulatory Impact Analyses
Changes to Federal regulations must undergo several analyses. In
conducting these analyses, DHS has determined:
1. Executive Order 12866 Assessment
This rule is not a significant regulatory action under Executive
Order 12866, ``Regulatory Planning and Review'' (as amended).
Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB). Nevertheless, DHS has reviewed this
rulemaking, and concluded that there will not be any significant
economic impact.
2. Regulatory Flexibility Act Assessment
Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5
U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement
and Fairness Act of 1996 (SBREFA), DHS certifies that this rule will
not have a significant impact on a substantial number of small
entities. The rule would impose no duties or obligations on small
entities. Further, the exemptions to the Privacy Act apply to
individuals, and individuals are not covered entities under the RFA.
3. International Trade Impact Assessment
This rulemaking will not constitute a barrier to international
trade. The exemptions relate to criminal investigations and agency
documentation and, therefore, do not create any new costs or barriers
to trade.
4. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub.
L. 104-4, 109 Stat. 48), requires Federal agencies to assess the
effects of certain regulatory actions on State, local, and tribal
governments, and the private sector. This rulemaking will not impose an
unfunded mandate on State, local, or tribal governments, or on the
private sector.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DHS consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. DHS has determined
that there are no current or new information collection requirements
associated with this rule.
C. Executive Order 13132, Federalism
This action will not have a substantial direct effect on the
States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and therefore will not have federalism
implications.
D. Environmental Analysis
DHS has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
E. Energy Impact
The energy impact of this action has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163,
as amended (42 U.S.C. 6362). This rulemaking is not a major regulatory
action under the provisions of the EPCA.
List of Subjects in 6 CFR Part 5
Sensitive information, Privacy, Freedom of information.
0
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 continues to read 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.
0
2. At the end of Appendix C to Part 5, add a new section 3 to read as
follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
3. DHS-ALL-005, Redress and Response Records System. A portion
of the following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3),
(4)(G) through (I), (5), and (8); (f), and (g); however, these
exemptions apply only to the extent that information in this system
records is recompiled or is created from information contained in
other systems of records subject to such exemptions pursuant to 5
U.S.C. 552a(j)(2), (k)(1), (k)(2), and (k)(5). Further, no exemption
shall be asserted with respect to information submitted by and
collected from the individual or the individual's representative in
the course of any redress process associated with this system of
records. After conferring with the appropriate component or agency,
DHS may waive applicable exemptions in appropriate circumstances and
where it would not appear to interfere with or adversely affect the
law enforcement or national security purposes of the systems from
which the information is recompiled or in which it is contained.
Exemptions from the above particular subsections are justified, on a
case-by-case basis to be determined at the time a request is made,
when information in this system records is recompiled or is created
from information contained in other systems of records subject to
exemptions for the following reasons:
(a) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him or
her would specifically reveal any investigative interest in the
individual. Revealing this information could reasonably be expected
to compromise ongoing efforts to investigate a known or suspected
terrorist by notifying the record subject that he or she is under
investigation. This information could also permit the record subject
to take measures to impede the investigation, e.g., destroy
evidence, intimidate potential witnesses, or flee the area to avoid
or impede the investigation.
(b) From subsection (c)(4) because portions of this system are
exempt from the access and amendment provisions of subsection (d).
(c) From subsections (d)(1), (2), (3), and (4) because these
provisions concern individual access to and amendment of certain
records contained in this system, including law enforcement
counterterrorism, investigatory, and intelligence records.
Compliance with these provisions could alert the subject of an
investigation of the fact and nature of the investigation, and/or
the investigative interest of intelligence or law enforcement
agencies; compromise sensitive information related to national
security; interfere with the overall law enforcement process by
leading to the destruction of evidence, improper influencing of
witnesses, fabrication of testimony, and/or flight of the subject;
could identify a confidential source or disclose information which
would constitute an unwarranted invasion of another's personal
[[Page 38753]]
privacy; reveal a sensitive investigative or intelligence technique;
or constitute a potential danger to the health or safety of law
enforcement personnel, confidential informants, and witnesses.
Amendment of these records would interfere with ongoing
counterterrorism, law enforcement, or intelligence investigations
and analysis activities and impose an impossible administrative
burden by requiring investigations, analyses, and reports to be
continuously reinvestigated and revised.
(d) From subsection (e)(1) because it is not always possible for
DHS or other agencies to know in advance what information is
relevant and necessary for it to complete an identity comparison
between the individual seeking redress and a known or suspected
terrorist. Also, because DHS and other agencies may not always know
what information about an encounter with a known or suspected
terrorist will be relevant to law enforcement for the purpose of
conducting an operational response.
(e) From subsection (e)(2) because application of this provision
could present a serious impediment to counterterrorism, law
enforcement, or intelligence efforts in that it would put the
subject of an investigation, study, or analysis on notice of that
fact, thereby permitting the subject to engage in conduct designed
to frustrate or impede that activity. The nature of
counterterrorism, law enforcement, or intelligence investigations is
such that vital information about an individual frequently can be
obtained only from other persons who are familiar with such
individual and his/her activities. In such investigations it is not
feasible to rely upon information furnished by the individual
concerning his own activities.
(f) From subsection (e)(3), to the extent that this subsection
is interpreted to require DHS to provide notice to an individual if
DHS or another agency receives or collects information about that
individual during an investigation or from a third party. Should the
subsection be so interpreted, exemption from this provision is
necessary to avoid impeding counterterrorism, law enforcement, or
intelligence efforts by putting the subject of an investigation,
study, or analysis on notice of that fact, thereby permitting the
subject to engage in conduct intended to frustrate or impede that
activity.
(g) From subsections (e)(4)(G), (H) and (I) (Agency
Requirements) because portions of this system are exempt from the
access and amendment provisions of subsection (d).
(h) From subsection (e)(5) because many of the records in this
system coming from other system of records are derived from other
domestic and foreign agency record systems and therefore it is not
possible for DHS to vouch for their compliance with this provision;
however, the DHS has implemented internal quality assurance
procedures to ensure that data used in the redress process is as
thorough, accurate, and current as possible. In addition, in the
collection of information for law enforcement, counterterrorism, and
intelligence purposes, it is impossible to determine in advance what
information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details
to light. The restrictions imposed by (e)(5) would limit the ability
of those agencies' trained investigators and intelligence analysts
to exercise their judgment in conducting investigations and impede
the development of intelligence necessary for effective law
enforcement and counterterrorism efforts. The DHS has, however,
implemented internal quality assurance procedures to ensure that the
data used in the redress process is as thorough, accurate, and
current as possible.
(i) From subsection (e)(8) because to require individual notice
of disclosure of information due to compulsory legal process would
pose an impossible administrative burden on DHS and other agencies
and could alert the subjects of counterterrorism, law enforcement,
or intelligence investigations to the fact of those investigations
when not previously known.
(j) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of
subsection (d).
(k) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act.
Dated: July 5, 2007.
Hugo Teufel III,
Chief Privacy Officer.
[FR Doc. E7-13564 Filed 7-13-07; 8:45 am]
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