45076 Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations 

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: August 20, 2009. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E9–20753 Filed 8–28–09; 8:45 am] 

BILLING CODE 9110–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2009–0060] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security U.S. Customs and Border 

Protection—014 Regulatory Audit 

Archive System of Records 

AGENCY: Privacy Office, DHS. 

ACTION: Final rule. 

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—014 Regulatory 

Audit Archive 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—014 Regulatory Audit 

Archive 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 77536, December 19, 

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)—014 

Regulatory Audit Archive system. The 

DHS/CBP—014 Regulatory Audit 

Archive system of records notice was 

published concurrently in the Federal 

Register, 73 FR 77807, December 19, 

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 

■ 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. 

■ 2. Add at the end of Appendix C to 

Part 5, Exemption of Record Systems 

under the Privacy Act, the following 

new paragraph ‘‘25’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

25. The DHS/CBP—014 Regulatory Audit 

Archive system of records consists of 

electronic and paper records and will be used 

by DHS and its components. The DHS/CBP— 

014 Regulatory Audit Archive 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—014 Regulatory Audit Archive 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), (d), (e)(1), (e)(4)(G), (e)(4)(H), 

(e)(4)(I), and (f) pursuant to 5 U.S.C. 

552a(k)(2). 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) (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 subsections (e)(4)(G), (H), and (I) 

(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, 


PWALKER on DSK8KYBLC1PROD with RULES5
Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations 45077 

and potential witnesses, and confidential 

informants. 

Dated: August 20, 2009. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E9–20751 Filed 8–28–09; 8:45 am] 

BILLING CODE 9110–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2009–0051] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security U.S. Customs and Border 

Protection—015 Automated 

Commercial System of Records 

AGENCY: Privacy Office, DHS. 

ACTION: Final rule. 

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—015 Automated 

Commercial 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—015 Automated Commercial 

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 77548, December 19, 

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)—015 

Automated Commercial System. The 

DHS/CBP Automated Commercial 

system of records notice was published 

concurrently in the Federal Register, 73 

FR 77759, December 19, 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 

■ 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. 

■ 2. At the end of Appendix C to Part 

5, add the following new paragraph 

‘‘26’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

26. The DHS/CBP—015 Automated 

Commercial System (ACS) system of records 

consists of electronic and paper records and 

will be used by DHS and its Components. 

The DHS/CBP—015 Automated Commercial 

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—015 Automated Commercial 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 caseby-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. E9–20780 Filed 8–28–09; 8:45 am] 

BILLING CODE 9110–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2009–0058] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security U.S. Customs and Border 

Protection—016 Nonimmigrant 

Information System of Records 

AGENCY: Privacy Office, DHS. 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security is issuing a final rule to amend 


PWALKER on DSK8KYBLC1PROD with RULES5