[Federal Register: January 18, 2007 (Volume 72, Number 11)]
[Proposed Rules]
[Page 2209-2211]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ja07-19]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket Number DHS-2007-0003]
Privacy Act of 1974: Implementation of Exemptions; Redress and
Response Records System
AGENCY: Privacy Office, Office of the Secretary, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security is amending its
regulations to exempt portions of a new system of records 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: Comments must be received on or before February 20, 2007.
ADDRESSES: You may submit comments, identified by Docket Number DHS-
2007-0003 by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Facsimile: 866-466-5370.
Mail: Hugo Teufel III, Chief Privacy Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
FOR FURTHER INFORMATION CONTACT: Hugo Teufel III, Chief Privacy
Officer, Privacy Office, Department of Homeland Security, Washington,
DC 20528; telephone 571-227-3813; facsimile: 866-466-5370.
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 DHS Redress and Response
Records System. This system maintains records for the DHS Traveler
Redress Inquiry Program (TRIP), which is the traveler redress mechanism
being 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.
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 redress process, which 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.
This system, however, 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. Moreover, DHS
will add these exemptions to Appendix C to 6 CFR Part 5, DHS Systems of
Records Exempt from the Privacy Act. Such exempt records or information
may be law enforcement or national security investigation records, law
enforcement activity and encounter records, or terrorist screening
records.
[[Page 2210]]
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' and other federal
agencies' ability to obtain information from third parties and other
sources; protect the privacy of third parties; and safeguard sensitive
information.
In addition, because such investigations may arise out of DHS
programs and activities, information in this system of records may
pertain to national security and related law enforcement matters. In
such cases, allowing access to such information could alert subjects of
such investigations into actual or potential criminal, civil, or
regulatory violations, and could reveal, in an untimely manner, DHS'
and other agencies' investigative interests in law enforcement efforts
to preserve national security.
Additionally, DHS needs these exemptions in order to protect
information relating to background 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 the background 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 a large number of federal law
enforcement and intelligence agencies.
Nonetheless, DHS will examine each separate 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 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.
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 the following new
paragraph:
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
[[Page 2211]]
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 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: January 12, 2007.
Hugo Teufel III,
Chief Privacy Officer.
[FR Doc. 07-191 Filed 1-12-07; 3:38 pm]
BILLING CODE 4410-10-P