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
45078 Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations 

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—016 Nonimmigrant 

Information 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—016 Nonimmigrant 

Information system from one or more 

provisions of the Privacy Act because of 

criminal, civil, and administrative 

enforcement requirements. 

Additionally, two administrative 

errors were made at the time of 

publishing and are corrected through 

this final rule. Two systems of records 

notices were issued the same system of 

records notice number. Both U.S. 

Customs and Border Protection system 

of records notices Nonimmigrant 

Information system of records and 

Electronic System for Travel 

Authorization system of records were 

published with number 009. Electronic 

System for Travel Authorization system 

of records will remain with number 009 

and Nonimmigrant Information system 

of records will be reassigned number 

016. Second, the notice of proposed 

rulemaking for the Nonimmigrant 

Information system of records was 

incorrectly published with the name 

‘‘Nonimmigrant Inspection System.’’ 

The name of the proposed rule and this 

final rule will be Nonimmigrant 

Information System. 

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 77549, 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)—016 

Nonimmigrant Information System. The 

DHS/CBP—016 Nonimmigrant 

Information system of records notice 

was published concurrently in the 

Federal Register, 73 FR 77739, 

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 

Privacy, Freedom of information. 

■ 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 ‘‘27’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

27. The DHS/CBP–009 Nonimmigrant 

Information system of records consists of 

electronic and paper records and will be used 

by DHS and it’s Components. The DHS/CBP– 

009 Nonimmigrant Information 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 Nonimmigrant Information 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. This system may contain records or 

information pertaining to the accounting of 

disclosures made from the Nonimmigrant 

Information System to other law enforcement 

and counterterrorism agencies (Federal, 

State, Local, Foreign, International or Tribal) 

in accordance with the published routine 

uses. 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. 522(c)(3), (e) 

(8), and (g) of the Privacy Act of 1974, as 

amended, as necessary and appropriate to 

protect accounting of these disclosures only, 

pursuant to 5 U.S.C. 552a (j)(2), and (k)(2). 

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 caseby-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: August 20, 2009. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E9–20778 Filed 8–28–09; 8:45 am] 

BILLING CODE 9110–06–P 


PWALKER on DSK8KYBLC1PROD with RULES5