Federal Register / Vol. 75, No. 22 / Wednesday, February 3, 2010 / Rules and Regulations 5491 

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 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 known or suspected criminal or 

terrorist, or other person of interest, 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. Exemptions from these 

particular subsections are justified, on a caseby-case basis to be determined at the time a 

request is made, 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 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) (Accounting for 

Disclosure, notice of dispute) because certain 

records in this system are exempt from the 

access and amendment provisions of 

subsection (d), this requirement to inform 

any person or other agency about any 

correction or notation of dispute that the 

agency made with regard to those records, 

should not apply. 

(c) From subsections (d)(1), (2), (3), and (4) 

(Access to Records) because these provisions 

concern individual access to and amendment 

of certain records contained in this system, 

including law enforcement, counterterrorism, 

and investigatory records. Compliance with 

these provisions could alert the subject of an 

investigation to the fact and nature of the 

investigation, and/or the investigative 

interest of intelligence or law enforcement 

agencies; compromise sensitive information 

related to law enforcement, including matters 

bearing on 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; 

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 or law enforcement 

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) (Relevancy and 

Necessity of Information) 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 

screening of cargo, conveyances, and 

passengers. Information relating to known or 

suspected criminals or terrorists or other 

persons of interest, is not always collected in 

a manner that permits immediate verification 

or determination of relevancy to a DHS 

purpose. For example, during the early stages 

of an investigation, it may not be possible to 

determine the immediate relevancy of 

information that is collected—only upon 

later evaluation or association with further 

information, obtained subsequently, may it 

be possible to establish particular relevance 

to a law enforcement program. Lastly, this 

exemption is required because DHS and 

other agencies may not always know what 

information about an encounter with a 

known or suspected criminal or terrorist or 

other person of interest will be relevant to 

law enforcement for the purpose of 

conducting an operational response. 

(e) From subsection (e)(2) (Collection of 

Information from Individuals) because 

application of this provision could present a 

serious impediment to counterterrorism or 

other law enforcement 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, and law 

enforcement 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 solely upon information 

furnished by the individual concerning his 

own activities. 

(f) From subsection (e)(3) (Notice to 

Subjects), 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 or other law enforcement 

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) (Collection of 

Information) because many of the records in 

this system coming from other systems 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 its screening processes is as 

complete, accurate, and current as possible. 

In addition, in the collection of information 

for law enforcement and counterterrorism 

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. 

(i) 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. 

(j) From subsection (f) (Agency Rules) 

because portions of this system are exempt 

from the access and amendment provisions 

of subsection (d). Access to, and amendment 

of, system records that are not exempt or for 

which exemption is waived may be obtained 

under procedures described in the related 

SORN or Subpart B of this Part. 

(k) From subsection (g) (Civil Remedies) to 

the extent that the system is exempt from 

other specific subsections of the Privacy Act. 

Dated: January 21, 2010. 

Mary Ellen Callahan 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2010–2201 Filed 2–2–10; 8:45 am] 

BILLING CODE 9110–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2009–0052] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security/U.S. Customs and Border 

Protection—007 Border Crossing 

Information 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—007 Border Crossing 

Information System of Records.’’ 

Specifically, the Department exempts 

portions of the Department of Homeland 

Security/U.S. Customs and Border 

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5492 Federal Register / Vol. 75, No. 22 / Wednesday, February 3, 2010 / Rules and Regulations 

Protection—007 Border Crossing 

Information System of Records from 

provisions of the Privacy Act because of 

criminal, civil, and administrative 

enforcement requirements. 

DATES: Effective Date: This final rule is 

effective February 3, 2010. 

FOR FURTHER INFORMATION CONTACT: For 

general questions please contact: 

Laurence E. Castelli (202–325–0280), 

Privacy Officer, U.S. Customs and 

Border Protection, Office of 

International Trade, Mint Annex, 799 

Ninth Street, NW., Washington, DC 

20001–4501. For privacy issues please 

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 43374, July 25, 2008, 

proposing to exempt portions of a 

system of records from 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)—007 Border Crossing 

Information system. The DHS/CBP—007 

Border Crossing Information system of 

records notice was published 

concurrently in the Federal Register, 73 

FR 43457, July 25, 2008, and comments 

were invited on both the notice of 

proposed rulemaking and system of 

records notice. Comments were received 

on the notice of proposed rulemaking 

and system of records notice. 

Public Comments 

Forty-eight comments were received 

on the system of records notice (SORN). 

Of those forty-eight comments, three 

comments were submitted in duplicate, 

one comment was submitted in 

triplicate, and one comment was 

submitted in quintuplicate. 

Accordingly, after accounting for the 

repetitive submissions, thirty-nine 

original comments were received on the 

system of records notice. Additionally, 

the same commenter posted comments 

twice on the notice of proposed 

rulemaking (NPRM) however, it was 

only one comment. Therefore only one 

original comment was received on the 

NPRM. The thirty-nine comments 

received on the SORN focused primarily 

on opposition either to the entire DHS/ 

CBP—007 Border Crossing Information 

system of records or to specific aspects 

of the system including opposition to 

the proposed length of time the records 

would be maintained and several of the 

routine uses listed for the system. 

Several comments stated opposition to 

the system because they alleged that the 

system was unconstitutional. The one 

comment on the NPRM was against the 

proposed Privacy Act exemptions 

because the commenter believed that 

not all records within DHS/CBP—007 

Border Crossing Information system of 

records are law enforcement data and 

exempting the DHS/CBP—007 Border 

Crossing Information system of records 

information from the Privacy Act would 

make it extremely difficult to contest 

and/or fix errors in the data, a right 

which is provided for in the Privacy 

Act. DHS notes that several comments 

submitted in conjunction with the 

SORN expressed disagreement with 

DHS’ use of the Privacy Act exemptions. 

However, the comments were not 

submitted in response to the NPRM. The 

following is a synopsis of the comments 

received and DHS’ response. 

General Comments 

Comment: No records should be 

maintained on law abiding U.S. citizens. 

Lawful border crossing of U.S. citizens 

should not be tracked. The focus should 

be on illegal entrants and non-U.S. 

citizens. 

Response: Throughout its 219 year 

history, and beginning with actions by 

the First Congress of the United States, 

CBP and its principal legacy 

components, the Immigration and 

Naturalization Service (INS) and the 

U.S. Customs Service, have possessed 

the authority to stop and search all 

persons, conveyances, and cargo 

attempting to cross the U.S. border. The 

DHS/CBP—007 Border Crossing 

Information system of records is a tool 

that is by utilized CBP in performance 

of its mission at U.S. borders. The 

responsibility of CBP at the U.S. borders 

encompasses all persons crossing the 

borders, including U.S. citizens. 

Furthermore, as explained in the 

DHS/CBP—007 Border Crossing 

Information system of records, the 

system does not represent a new or 

expanded collection of information by 

CBP. Rather, CBP is providing increased 

information regarding the agency’s 

historical practices. 

Comment: This system should be 

classified. The collected information 

should only be used for National 

Security purposes. 

Response: The DHS/CBP—007 Border 

Crossing Information system of records 

was published as part of DHS’s ongoing 

effort to increase transparency regarding 

the collection of information at the 

Department. Accordingly, if the system 

were classified, the public would 

generally not have access to information 

in the system either under the Privacy 

Act or the Freedom of Information Act. 

Moreover, in CBP’s judgment the 

system’s level of classification is 

commensurate with the type of 

information maintained in the system 

and the agency has put in place 

adequate measures to ensure the 

integrity of the system. 

Comment: The system should not be 

exempted from the Freedom of 

Information Act. 

Response: The system is not 

exempted from the Freedom of 

Information Act. The Privacy Act by its 

terms at 5 U.S.C. 552a(b)(2) specifically 

provides for access to information in a 

system of records, including exempt 

systems of records, through a request 

made under the Freedom of Information 

Act. In response to a Freedom of 

Information Act request, and in 

accordance with that statute, the 

government may exempt certain 

portions of responsive records from 

disclosure when providing an 

individual with information about him 

or herself. 

Comment: Criminal penalties for 

misuse of data must be specified with 

no exceptions for government 

employees. 

Response: The Privacy Act authorizes 

criminal penalties for misuse of data 

maintained in a system covered by the 

Privacy Act. 5 U.S.C. 552a(i). There are 

no exceptions for criminal conduct 

committed by government employees. 

Additionally, CBP identifies misuse of 

information in its information systems 

as a specific violation applicable to all 

CBP employees. Employees may be 

dismissed from CBP for mishandling or 

misusing information maintained in 

CBP’s systems and may be subject to 

criminal or civil penalties. 

Comment: The system should have an 

audit trail and information should only 

be accessed if there is need to know. 

Response: This system has a clear 

audit trail of who has accessed the 

system and who has accessed what 

records, so that if there are concerns 

about an individual’s use of the system 

it can be tracked. CBP’s Office of 

Internal Affairs regularly reviews the 

use of the system to ensure it is being 

used properly. CBP recognizes the need 

to prevent misuse of any information it 

collects. Therefore, CBP has 

implemented several internal controls to 

mitigate threats to the integrity of its 

systems. Access to CBP’s systems is 

governed by a strict policy that 

implements rights and responsibilities 

to information. This means that only 

CBP employees with a need to know 

have access to information that falls 

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within the performance of official 

duties. Furthermore, CBP requires that 

all employees participate in regular 

privacy awareness training to receive 

automated systems access and requires 

that employees periodically re-attend 

such training to continue their access. 

CBP also identifies misuse of 

information in information systems as a 

specific violation applicable to all CBP 

employees. Employees may be 

dismissed from CBP for mishandling or 

misusing information maintained in 

CBP’s systems and may be subject to 

criminal or civil penalties. 

Comment: DHS should have an 

updated System of Records Notice for 

TECS. 

Response: A new system of records 

notice for TECS was published in 

December 2008. DHS/CBP—011 TECS 

(73 FR 77778, December 19, 2008). 

Comment: The system security for the 

DHS/CBP—007 Border Crossing 

Information system of records data has 

not been adequately addressed. 

Response: Multiple security measures 

are in place for data collected in DHS 

systems. CBP uses routers, firewall and 

intrusion detection systems to prevent 

unauthorized access to its systems. Any 

information stored via backup tape is 

protected through strict physical 

safeguards and other technical 

safeguards to ensure it cannot be 

inappropriately accessed. 

Access and Redress Comments 

Comment: Exempting information 

within the DHS/CBP—007 Border 

Crossing Information system of records 

from certain provisions of the Privacy 

Act will make it extremely difficult, if 

not impossible, for individuals to fix 

errors that show up in the database. 

Response: CBP respectfully disagrees. 

CBP has not proposed exempting access 

to the DHS/CBP—007 Border Crossing 

Information system of records by 

individuals who have a system record 

that pertains to them. To the contrary, 

the DHS/CBP—007 Border Crossing 

Information system of records 

delineated procedures for contesting 

system records. The relevant section of 

the SORN states: ‘‘Requests to amend a 

record must be in writing and should be 

addressed to the CBP Customer Service 

Center (Rosslyn, VA), 1300 

Pennsylvania Avenue, NW., 

Washington, DC 20229; Telephone (877) 

227–5511; or through the ‘‘Questions’’ 

tab at http://www.cbp.gov.xp.cgov/ 

travel/customerservice.’’ Requests 

should conform with the requirements 

of 6 CFR Part 5, Subpart B, which 

provides the rules for requesting access 

to Privacy Act records maintained by 

DHS and can be found at http:// 

www.dhs.gov/foia. The envelope and 

letter should be clearly marked ‘‘Privacy 

Act Access Request.’’ The request 

should include a general description of 

the records sought and must include the 

requester’s full name, current address, 

and date and place of birth. The request 

must be signed and either notarized or 

submitted under penalty of perjury. 

If individuals are uncertain what 

agency handles the information, they 

may seek redress through the DHS 

Traveler Redress Program (DHS TRIP) 

(72 FR 2294, January 18, 2007). DHS 

TRIP is a single point of contact for 

individuals who have inquiries or seek 

resolution regarding difficulties they 

experienced during their travel 

screening at transportation hubs, such 

as airports, seaports and train stations or 

at U.S. land borders. Through DHS 

TRIP, a traveler can request correction 

of erroneously stored data in other DHS 

databases through one application. 

Redress requests should be sent to: DHS 

Traveler Redress Inquiry Program, 601 

South 12th Street, TSA–901, Arlington, 

VA 22202–4220 or online at http:// 

www.dhs.gov/trip. 

Retention Period Comments 

Comment: The retention period is too 

long for records about people that have 

committed no crime. 

Response: The fifteen-year and 

seventy-five year retention periods 

proposed for the DHS/CBP—007 Border 

Crossing Information system of records 

were determined in order to allow CBP 

to effectively pursue its law 

enforcement mission while addressing 

privacy concerns. The fifteen-year 

retention period will allow CBP to 

access the data when needed for a law 

enforcement purpose yet permit the 

removal of the data in a time period 

significantly shorter than other systems. 

The seventy-five year period for nonimmigrant aliens will allow for proper 

administration of certain immigration 

benefits as well as other law 

enforcement purposes. Furthermore, it 

should be noted, that while the DHS/ 

CBP—007 Border Crossing Information 

system of records information is 

maintained for a number of years, any 

access to the information will always 

require a ‘‘need to know’’ by any person 

accessing the information. Access by 

persons without a proper ‘‘need to 

know’’ may result in criminal penalties 

and/or disciplinary actions. 

Routine Uses 

Comment: Under the listed Routine 

Uses, potential interested parties with 

whom the DHS/CBP—007 Border 

Crossing Information system of records 

information may be shared, such as 

press, foreign governments, State, 

prospective employers, students, 

contractors, etc., is too broad and not 

consistent with the reason for collecting 

the information. 

Response: CBP, and its predecessor 

agencies, INS and the U.S. Customs 

Service, have signed Memoranda of 

Understandings (MOUs) or entered into 

agreements with a wide variety of 

Federal, State, and local agencies with 

an interest in maintaining border 

security and law enforcement; similar 

arrangements are in place with other 

nations in the form of Customs Mutual 

Assistance Agreements (CMAAs) and 

other information-sharing agreements 

and arrangements. The terms of these 

arrangements specify the necessity of 

sharing information and highlight the 

fact that the types of information 

sharing described in the SORN are 

neither unique nor a new practice for 

border authorities. Additionally, all 

MOUs and other arrangements for the 

sharing of information contain specific 

provisions relating to the 

responsibilities of the receiving party to 

keep the information confidential, 

protected, and secure. DHS does not 

share PII with domestic or foreign 

governments or multilateral 

organizations which DHS is not 

confident will protect the privacy 

interests of the data subject. 

The routine uses identified are 

consistent with CBP’s role as a law 

enforcement agency that enforces over 

400 statutes on behalf of more than 40 

agencies in the Federal Government. 

DHS is charged in its authorizing 

statute, specifically section 892 of the 

Homeland Security Act of 2002, to 

facilitate the sharing of terrorist 

information across the government. In 

addition, The Intelligence Reform and 

Terrorism Prevention Act of 2004 

required the President to establish an 

Information Sharing Environment ‘‘that 

facilitates the sharing of terrorism 

information.’’ Following this enactment, 

on October 25, 2005, the President 

issued Executive Order 13388, directing 

that DHS and other agencies ‘‘promptly 

give access to * * * terrorism 

information to the head of each other 

agency that has counterterrorism 

functions’’ and establishing a 

mechanism for implementing the 

Information Sharing Environment. 

In addition, routine use O. permits 

CBP to share information with the press 

where such a release would inform the 

public about the performance of CBP’s 

border security mission, such as the 

release of information pertaining to an 

arrest of a person attempting to enter the 

United States with bomb making 

materials in the trunk of his/her car. 

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Such uses are consistent with CBP’s and 

DHS’s overall law enforcement mission 

and serve to inform the public of how 

that mission is being accomplished. The 

particular routine use includes 

protections to balance the privacy 

interests of the person, whose 

information may be disclosed, with the 

public’s right to know how the 

government is accomplishing its 

mission; this is the traditional balance 

that has always been struck between 

privacy and the public’s right ‘‘to know 

what its government is up to.’’ 

Comment: The listed Routine Use for 

sharing for civil cases is not consistent 

with the mission against terrorism. 

Response: The priority mission of 

CBP is to prevent terrorist and terrorists’ 

weapons from entering the United 

States while facilitating legitimate travel 

and trade. In performance of its duties 

at the border, CBP, as a law enforcement 

agency, enforces over 400 statutes on 

behalf of more than 40 agencies in the 

Federal government. As such, the 

enforcement is not always criminal in 

nature and the sharing of DHS/CBP— 

007 Border Crossing Information system 

of records information in certain civil 

matters is understandable and 

consistent with CBP overall mission. 

Again, the DHS/CBP—007 Border 

Crossing Information system of records 

does not represent a new collection of 

information, and the routine use for 

civil purposes is consistent with CBP’s 

historical treatment of this information. 

Comment: Routine Uses are vague, 

overbroad and in some instances 

unnecessary. 

Response: CBP is a law enforcement 

agency that enforces over 400 statutes 

on behalf of more than 40 agencies in 

the Federal government. In addition, 

CBP and its predecessor agencies, the 

INS and U.S. Customs Service, have 

signed MOUs or similar agreements 

with a wide variety of Federal, State and 

local agencies with border security and 

law enforcement interests and have 

similar accords with other nations in the 

form of CMAAs and other information 

sharing agreements or arrangements. 

The DHS/CBP—007 Border Crossing 

Information system of records Routine 

Uses are established to facilitate the 

sharing of specific information in 

furtherance of these shared law 

enforcement missions. The Routine 

Uses set forth at great length in the 

DHS/CBP—007 Border Crossing 

Information system of records also 

provides notice and transparency to the 

public as to nature and extent of the 

sharing of system data while containing 

appropriate parameters to limit the 

sharing to discrete purposes. 

Privacy Act Statutory Comments 

Comment: The system is not 

consistent with DHS principles of 

minimization and the Fair Information 

Practice Principles, specifically the 

length of retention, and as such should 

be amended to comply with these 

standards. 

Response: CBP collects the minimum 

amount of information to properly 

record the border crossing event of an 

individual and facilitate CBP’s border 

security, law enforcement and 

counterterrorism functions. 

Additionally, as discussed, the length of 

retention for information stored in the 

system was established to allow CBP to 

effectively pursue its border security, 

law enforcement and counterterrorism 

missions, while addressing privacy 

concerns. 

Legal or Constitutional Comments 

Comment: The system is 

unconstitutional. No records should be 

maintained in the system without 

probable cause that something is illegal 

nor should any records be shared 

without probable cause. 

Response: As the U.S. Supreme Court 

has stated, ‘‘[i]t is axiomatic that the 

United States, as sovereign, has the 

inherent authority to protect, and a 

paramount interest in protecting, its 

territorial integrity.’’ United States v. 

Flores-Montano, 541 U.S. 149, 153 

(2004). Indeed, ‘‘the Government’s 

interest in preventing the entry of 

unwanted persons and effects is at its 

zenith at the international border.’’ Id. at 

152. For this reason, the U.S. Supreme 

Court has held that stops and 

examinations are reasonable in the 

absence of a warrant or probable cause 

when they are conducted at the U.S. 

border, see Carroll v. United States, 267 

U.S. 132, 153–54 (1925), and the 

‘‘functional equivalent of the border,’’ 

such as international airports, see 

United States v. Irving, 432 F.3d 401, 

414 (2nd Cir. 2005). 

Under the border search exception, 

routine stops and examinations 

conducted at the border are reasonable 

for Fourth Amendment purposes 

‘‘simply by virtue of the fact that they 

occur at the border,’’ and may be 

conducted without any individualized 

suspicion. United States v. Ramsey, 431 

U.S. 606, 616 (1977). In addition, the 

Congress has specifically authorized 

CBP to collect the information 

maintained in the system. (see, e.g., 49 

U.S.C. 44909 for information collected 

through the DHS/CBP—005 Advance 

Passenger Information system of records 

(73 FR 68435, November 18, 2008)). 

Comment: The system is prohibited 

by the Privacy Act because it involves 

the collection and retention of records 

pertaining to activities protected by the 

First Amendment (i.e., ‘‘right of 

assembly’’). 

Response: The broad authority of CBP 

to conduct activities relating to the entry 

or exit of persons or things into or out 

of the United States is codified at title 

19 of the United States Code (U.S.C.), in 

sections 482, 1461, 1496, 1499, and 

1581–83, and title 8, U.S.C. 1357. The 

system is a decision-support tool used 

by CBP officers to execute this lawful 

border enforcement authority and does 

not violate the right of citizens to 

assemble. 

Privacy Act Exemptions Comments 

Comment: There is no good reason for 

exempting a system of this type from the 

Privacy Act. All people for whom the 

government holds records ought to have 

the ability to review, amend, or correct 

information maintained by the 

government. 

Response: The suggested exemptions 

from the Privacy Act listed in the DHS/ 

CBP—007 Border Crossing Information 

NPRM (73 FR 43374, June 25, 2008) 

were selected to allow maximum 

transparency of data collected in the 

system while simultaneously allowing 

CBP to perform its border enforcement 

mission. For example, if the system did 

not have the proposed exemption from 

subsection (c)(3) of the Privacy Act, (5 

U.S.C. 552a (c)(3)), the fact that certain 

DHS/CBP—007 Border Crossing 

Information system of records 

information was shared with a law 

enforcement agency could disclose to 

the subject of an investigation the 

existence of such an investigation, and 

reveal investigative interest on the part 

of DHS as well as the recipient agency. 

Disclosure of the accounting could 

possibly allow the suspect individual to 

impede the investigation and present a 

serious concern to successful law 

enforcement efforts and possibly 

compromise national security. 

Public Recommendations 

The submitted public comments 

offered numerous suggestions 

concerning DHS/CBP—007 Border 

Crossing Information system of records. 

Those suggestions ranged from 

cancellation of the system in its entirety, 

to proposed modifications to the system 

to enable it to meet concerns raised in 

the comments. Some of the suggested 

modifications included the following: 

• Records not be shared without 

probable cause support by a court order 

(already in Privacy Act); 

• Penalties for misuse of data (already 

exist); 

• This system should be classified; 

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Federal Register / Vol. 75, No. 22 / Wednesday, February 3, 2010 / Rules and Regulations 5495 

• Retention of records should only be 

in cases were there is a reasonable 

suspicion of criminal or terrorist 

activity; 

• The retention period should be 

shortened; 

• Records should only be maintained 

on non-U.S. Citizens; and 

• Records should only be shared 

pursuant to a court order. 

Responses to all these 

recommendations have been provided 

elsewhere within this document. 

Upon careful review of the submitted 

public comments, having taken into 

consideration public comments 

resulting from this NPRM and SORN, as 

well as the Department’s position on 

these public comments, DHS has 

determined that for the reasons stated, 

it is important that the exemptions 

remain in place. 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: 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. 

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 ‘‘46’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

46. The DHS/CBP—007 Border Crossing 

Information system of records will maintain 

border crossing information on travelers who 

are admitted or paroled into the United 

States. This information includes: certain 

biographical information; a photograph (if 

available); certain itinerary information 

provided by air and sea carriers and any 

other forms of passenger transportation, 

including rail, which is or may subsequently 

be mandated, or is or may be provided on a 

voluntary basis; and the time and location of 

the border crossing. This system may contain 

records or information pertaining to the 

accounting of disclosures made from DHS/ 

CBP—007 Border Crossing Information 

system of records to agencies (Federal, State, 

Local, Tribal, Foreign, or International), in 

accordance with the published routine uses. 

For the accounting of these disclosures only, 

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. 552(c)(3); 

(e)(8); and (g) pursuant to 5 U.S.C. 552a(j)(2). 

Additionally, for the accounting of these 

disclosures only, 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. 

552(c)(3); (e)(8); and (g) pursuant to 5 U.S.C. 

552a(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 case-by-case basis to be determined at the 

time a request is made, when information in 

this system or 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 

Disclosures) because making available to a 

record subject to 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 expect to compromise ongoing efforts to 

investigate a violation of U.S. law, including 

investigations of a known or suspected 

terrorist or criminal, or other person of 

interest, by notifying the record subject that 

he or she is under investigation. This 

information could also permit the record’s 

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 to 

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: January 21, 2010. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2010–2200 Filed 2–2–10; 8:45 am] 

BILLING CODE 9110–06–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 50 

RIN 3150–AI01 

[NRC–2007–0008] 

Alternate Fracture Toughness 

Requirements for Protection Against 

Pressurized Thermal Shock Events; 

Correction 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Final rule; correction. 

SUMMARY: This document corrects a rule 

that appeared in the Federal Register on 

January 4, 2010 (75 FR 13), that amends 

the NRC’s regulations to provide 

alternate fracture toughness 

requirements for protection against 

pressurized thermal shock (PTS) events 

for pressurized water reactor (PWR) 

pressure vessels. This document is 

necessary to correct formatting and 

typographical errors in paragraph (g). 

DATES: The correction is effective 

February 3, 2010, the date the original 

rule becomes effective. 

FOR FURTHER INFORMATION CONTACT: 

Michael T. Lesar, Chief, Rulemaking 

and Directives Branch, Office of 

Administration, Nuclear Regulatory 

Commission, Washington, DC 20555– 

0001, telephone 301–492–3663, e-mail 

Michael.Lesar@nrc.gov. 

SUPPLEMENTARY INFORMATION: In FR doc. 

E9–31146, published on January 4, 

2010, make the following correction: 

§ 50.61a [Corrected] 

■ 1. On page 27, paragraph (g) of 

§ 50.61a is corrected to read as follows: 

(g) Equations and variables used in 

this section. 

Equation 1: RT = MAX RT + T MAX AW NDT(U) plate 30 pla − −− Δ te NDT(U) axial weld 30 axial weld ⎡ RT + T ⎣ ⎤

⎦ ⎡⎣ ⎤ { } − − ⎦ , Δ

Equation 2: RT = RT + T MAX PL NDT(U) plate 30 plate − −− Δ


WReier-Aviles on DSKGBLS3C1PROD with RULESER03FE10.000</MATH> ER03FE10.001</MATH>