[Federal Register: October 31, 2008 (Volume 73, Number 212)]
[Proposed Rules]
[Page 64890-64892]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc08-21]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2008-0107]
Privacy Act of 1974: Implementation of Exemptions; U.S.
Immigration and Customs Enforcement Trade Transparency Analysis and
Research (TTAR) System of Records
AGENCY: Privacy Office; DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) is giving concurrent
notice of a new system of records pursuant to the Privacy Act of 1974
for the U.S. Immigration and Customs Enforcement Trade Transparency
Analysis and Research (TTAR) system 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
[[Page 64891]]
criminal, civil, and administrative enforcement requirements.
DATES: Comments must be received on or before December 1, 2008.
ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0107 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.
Instructions: All submissions received must include the
agency name and docket number for this rulemaking. 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: Lyn Rahilly, Privacy Officer, U.S.
Immigration and Customs Enforcement, 425 I Street, NW., Washington, DC
20536, e-mail: ICEPrivacy@dhs.gov, or Hugo Teufel III (703-235-0780),
Chief Privacy Officer, Privacy Office, U.S. Department of Homeland
Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The Trade Transparency Analysis and Research (TTAR) system of
records is maintained for the purpose of enforcing criminal laws
pertaining to trade by examining U.S. and foreign trade data to
identify anomalies in patterns of trade that may indicate trade-based
money laundering or other import-export crimes that ICE is responsible
for investigating. TTAR contains trade data collected by other federal
agencies and foreign governments, and financial data collected by U.S.
Customs and Border Protection (CBP) and the U.S. Department of the
Treasury Financial Crimes Enforcement Network (FinCEN).
ICE uses the Data Analysis and Research Trade Transparency System
(DARTTS), a software application and data repository, to conduct
analysis of TTAR data. DARTTS does not seek to predict future behavior
or ``profile'' individuals, i.e., look for individuals or entities who
meet a certain pattern of behavior that has been pre-determined to be
suspect. Instead, it analyzes and identifies trade and financial
transactions that are statistically anomalous. Investigators gather
additional facts, verify the accuracy of the DARTTS data, and use their
judgment and experience to determine if the anomalous transactions are
in fact suspicious and warrant further investigation. Not all anomalies
lead to formal investigations. DARTTS can also identify links
(relationships) between individuals and/or entities based on
commonalities, such as identification numbers, addresses, or other
information. These commonalities in and of themselves are not
suspicious, but in the context of additional information they sometimes
help investigators to identify potentially criminal activity and
identify other suspicious transactions, witnesses, or suspects.
II. Privacy Act
In this notice of proposed rulemaking, DHS now is proposing to
exempt TTAR, in part, from certain provisions of the Privacy Act. The
Privacy Act embodies fair information principles in a statutory
framework governing the means by which the United States Government
collects, maintains, uses, and disseminates 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.
Individuals may request their own records that are maintained in a
system of records in the possession or under the control of DHS by
complying with DHS Privacy Act regulations, 6 CFR part 5.
The Privacy Act requires each agency to publish in the Federal
Register a description of the type and character of each system of
records that the agency maintains, and the routine uses that are
contained in each system in order to make agency recordkeeping
practices transparent, to notify individuals regarding the uses to
which personally identifiable information is put, and to assist
individuals in finding such files within the agency. The Privacy Act
also 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 TTAR. Some information in TTAR relates to official DHS national
security, law enforcement, 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 of border management and law enforcement
personnel; to ensure DHS's ability to obtain information from third
parties and other sources; to protect the privacy of third parties; and
to safeguard classified information. Disclosure of information to the
subject of the inquiry could also permit the subject to avoid detection
or apprehension.
The exemptions proposed here are standard law enforcement and
national security exemptions exercised by a large number of Federal law
enforcement and intelligence agencies. In appropriate circumstances,
where 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.
A notice of system of records for the Department's TTAR System 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
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 12 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
12. The Trade Transparency Analysis and Research (TTAR) System
consists of electronic and paper records and will be used by the
Department of Homeland Security (DHS). TTAR 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; and national security and
[[Page 64892]]
intelligence activities. TTAR contains information that is collected
by other federal and foreign government agencies and may contain
personally identifiable information.
Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act,
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4);
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and
(e)(8); (f), and (g). Pursuant to 5 U.S.C. 552a(k)(2), this system
is exempt from the following provisions of the Privacy Act, subject
to the limitations set forth in those subsections: 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f). 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:
(a) 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 the
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.
(b) 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 the
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
impossible administrative burden by requiring investigations to be
continuously reinvestigated. In addition, permitting access and
amendment to such information could disclose security-sensitive
information that could be detrimental to homeland security.
(c) 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.
(d) 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 an investigation, thereby interfering with
the related investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information would impede law enforcement in
that it could compromise investigations by: Revealing the existence
of an otherwise confidential investigation and thereby provide an
opportunity for the subject of an investigation to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative efforts; reveal the identity of witnesses in
investigations, thereby providing an opportunity for the subjects of
the investigations or others to harass, intimidate, or otherwise
interfere with the collection of evidence or other information from
such witnesses; or reveal the identity of confidential informants,
which would negatively affect the informant's usefulness in any
ongoing or future investigations and discourage members of the
public from cooperating as confidential informants in any future
investigations.
(f) From subsections (e)(4)(G) and (H) (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, and potential
witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because
in 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 (e)(5) would
preclude DHS agents from using their investigative training and
exercise of good judgment to both conduct and report on
investigations.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS' 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.
(i) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act relating to
individuals' rights to access and amend their records contained in
the system. Therefore DHS is not required to establish rules or
procedures pursuant to which individuals may seek a civil remedy for
the agency's: refusal to amend a record; refusal to comply with a
request for access to records; failure to maintain accurate,
relevant timely and complete records; or failure to otherwise comply
with an individual's right to access or amend records.
Dated: October 24, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-25972 Filed 10-30-08; 8:45 am]
BILLING CODE 4410-10-P