`[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Page 45070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20744]



[[Page 45069]]

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Part VI





Department of Homeland Security





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6 CFR Part 5



Privacy Act of 1974: Implementation of Exemptions; Final Rules

  Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules 
and Regulations  

[[Page 45070]]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0057]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Customs and Border Protection--009 Electronic 
System for Travel Authorization System of Records

AGENCY: Privacy Office, 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 Department of Homeland 
Security U.S. Customs and Border Protection system of records entitled 
the ``Department of Homeland Security U.S. Customs and Border 
Protection--009 Electronic System for Travel Authorization System of 
Records'' from certain provisions of the Privacy Act. Specifically, the 
Department exempts portions of the Department of Homeland Security U.S. 
Customs and Border Protection--009 Electronic System for Travel 
Authorization 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 August 31, 2009.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Laurence E. Castelli (202-325-0280), Chief, Privacy Act Policy and 
Procedures Branch, U.S. Customs and Border Protection, Office of 
International Trade, Regulations & Rulings, Mint Annex, 799 Ninth 
Street, NW., Washington, DC 20001-4501. For privacy issues contact: 
Mary Ellen Callahan (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) published a notice of 
proposed rulemaking in the Federal Register, 73 FR 32657, June 10, 
2008, proposing 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. The system of records is the 
DHS/U.S. Customs and Border Protection (CBP)--009 Electronic System for 
Travel Authorization system. The DHS/CBP--009 Electronic System for 
Travel Authorization system of records notice was published 
concurrently in the Federal Register, 73 FR 32720, June 10, 2008, and 
comments were invited on both the notice of proposed rulemaking and 
system of records notice. No comments were received.

Public Comments

    DHS received no comments on the notice of proposed rulemaking or 
the system of records notice. DHS will implement the rulemaking as 
proposed.

List of Subjects in 6 CFR Part 5

    Freedom of information, Privacy.

    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:  Public Law 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. 
Subpart B also issued under 5 U.S.C. 552a.

0
2. Add at the end of Appendix C to Part 5, Exemption of Record Systems 
under the Privacy Act, the following new paragraph ``20'':

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    20. The DHS/CBP--009 Electronic System for Travel Authorization 
system of records consists of electronic and paper records and will 
be used by DHS and it's Components. The DHS/CBP--009 Electronic 
System for Travel Authorization system 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 thereunder; and national security and intelligence 
activities. The DHS/CBP--009 Electronic System for Travel 
Authorization system 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. The Secretary of Homeland 
Security has exempted this system from the following provisions of 
the Privacy Act, subject to the limitations set forth in 5 U.S.C. 
552a(c)(3), (e)(8), and (g) pursuant to 5 U.S.C. 552a(j)(2), and 
(k)(2). Further, no exemption shall be asserted with respect to 
information maintained in the system as it relates to data submitted 
by or on behalf of a person who travels to visit the United States 
and crosses the border, nor shall an exemption be asserted with 
respect to the resulting determination (approval or denial). 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 may impede a law enforcement or national security 
investigation:
    (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: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-20744 Filed 8-28-09; 8:45 am]
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