[Federal Register: July 25, 2008 (Volume 73, Number 144)]
[Proposed Rules]
[Page 43374-43375]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jy08-14]
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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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[[Page 43374]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket Number DHS-2008-0024]
Privacy Act of 1974: Implementation of Exemptions; Border
Crossing Information
AGENCY: Privacy Office, Department of Homeland Security.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security is proposing to amend its
regulations to exempt portions of a system of records from certain
provisions of the Privacy Act. Specifically, the Department proposes to
exempt portions of the Border Crossing Information from one or more
provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements. This document is a
republication of the Treasury Department exemption regulation (title
31, Code of Federal Regulations, part 1) which previously covered the
Border Crossing Information as part of the Treasury Enforcement
Communications System (TECS) System of Records Notice.
DATES: Written comments must be submitted on or before August 25, 2008.
ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0024 by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 1-866-466-5370.
Mail: Hugo Teufel III, Chief Privacy Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Laurence E. Castelli (202-572-8790), Chief, Privacy Act Policy and
Procedures Branch, U.S. Customs and Border Protection, Regulations and
Rulings, Office of International Trade, Mint Annex, 1300 Pennsylvania
Ave., NW., Washington, DC 20229. For privacy issues please contact:
Hugo Teufel III (703-235-0780), Chief Privacy Officer, Privacy Office,
U.S. Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland Security (DHS), elsewhere in this
edition of the Federal Register, published a Privacy Act system of
records notice describing records in the Border Crossing Information
(BCI). U.S. Customs and Border Protection (CBP) is the agency
responsible for collecting and reviewing border crossing information
from travelers entering and departing the United States. This is
consistent with CBP's overall border security and enforcement missions.
Upon arrival in the United States, all individuals crossing the border
are required to clear CBP. As part of this clearance process, CBP
reserves the right to verify the identity, nationality, and
admissibility of any person crossing the border. Additionally, CBP
creates a record of the fact that the individual has entered the United
States at a particular time and port of entry.
BCI collects and maintains border crossing information on travelers
crossing the United States border, which includes: certain biographical
information; a photograph; certain itinerary information provided by
air, sea, and eventually rail carriers; and the time and location of
the border crossing; and, as necessary, the status of a secondary
examination.
BCI contains records pertaining to various categories of
individuals, including: Passengers and crew who arrive, transit through
or depart the United States by air, rail, or sea (and includes the U.S.
domestic portions of international travel for passengers and crew
flying into or out of the United States) and crew members on aircraft
that overfly the United States; and persons crossing the land border at
ports of entry.
No exemption shall be asserted with respect to information
maintained in the system that is collected from a person's travel
documents or submitted by a government computer system in support of a
proffered travel document, if that person, or his or her agent, seeks
access or amendment of such information.
This system, however, may contain records or information pertaining
to the accounting of disclosures made from BCI to other law enforcement
agencies (Federal, State, Local, Foreign, International or Tribal) in
accordance with the published routine uses and 5 U.S.C. 552a(b)(7). For
the accounting of these disclosures only, in accordance with 5 U.S.C.
552a(j)(2), and (k)(2), DHS will claim the original exemptions for
these records or information from subsection (c)(3), (e)(8), and (g) of
the Privacy Act of 1974, as amended, as necessary and appropriate to
protect such information.
DHS needs these 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.
Nonetheless, 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 and where it
would not appear to interfere with or adversely affect the law
enforcement purposes of the systems from which the information is
recompiled or in which it is contained.
Again, DHS will not assert any exemption with respect to
information maintained in the system that is collected from a person
and submitted by that person's air or vessel carrier, if that person,
or his or her agent, seeks access or amendment of such information.
[[Page 43375]]
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
Privacy, Freedom of information.
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: 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.
2. At the end of Appendix C to Part 5, add new paragraph 6 to read
as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
6. DHS/CBP-007, Border Crossing Information. This system may
contain records or information pertaining to the accounting of
disclosures made from BCI to other law enforcement and
counterterrorism agencies (Federal, State, Local, Foreign,
International or Tribal) in accordance with the published routine
uses. For the accounting of these disclosures only, in accordance
with 5 U.S.C. 552a (j)(2), and (k)(2), DHS will claim the original
exemptions for these records or information from subsection (c)(3),
(e)(8), and (g) of the Privacy Act of 1974, as amended, as necessary
and appropriate to protect such information. Further, no exemption
shall be asserted with respect to biographical or travel information
submitted by, and collected from, a person's travel documents or
submitted from a government computer system to support or to
validate those travel documents. 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 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 of 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) (Accounting for Disclosure) 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 violation of U.S. law, including investigations of 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 (e)(8) (Notice on Individuals) 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 or law enforcement investigations to the fact of
those investigations when not previously known.
(c) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
Dated: July 18, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-17122 Filed 7-24-08; 8:45 am]
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