[Federal Register Volume 61, Number 231 (Friday, November 29, 1996)]
[Rules and Regulations]
[Pages 60559-60562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30280]
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DEPARTMENT OF THE TREASURY
Customs Service
31 CFR Part 1
Privacy Act of 1974, as Amended; Exemption of System of Records
From Certain Provisions
AGENCY: Customs Service, Treasury.
ACTION: Final Rule; determination.
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SUMMARY: In accordance with the Privacy Act of 1974, as amended,
Customs has determined to exempt a system of records, the Pacific Basin
Reporting Network (Treasury/ Customs .171) from certain provisions of
the Privacy Act. The exemptions are intended to increase the value of
the system of records for law enforcement purposes, to comply with
legal prohibitions against the disclosure of certain kinds of
information, and to protect the privacy of individuals identified in
the system of records.
EFFECTIVE DATE: November 29, 1996.
FOR FURTHER INFORMATION CONTACT: Marvin M. Amernick, Acting Chief,
Disclosure Law Branch, Office of Regulations and Rulings, U.S. Customs
Service, (202) 482-6970.
SUPPLEMENTARY INFORMATION: As a law enforcement agency, the U.S.
Customs Service has a wide variety of
[[Page 60560]]
investigatory responsibilities including, for example, investigations
of smuggling, narcotics trafficking, the importation of prohibited or
restricted merchandise, violations of the Neutrality Act,
investigations of organized crime activities, commercial fraud
investigations and many others. Among the activities in which Customs
is involved is the clearance of aircraft and vessels and their crews
into the customs territory of the United States. The purpose of the
Pacific Basin Reporting Network system of records is to collect and
store information with respect to potential violations of Customs and
other domestic and international laws and where appropriate to disclose
this information to other law enforcement agencies which have an
interest in this information. Authority for the system is provided by 5
U.S.C. 301; 19 U.S.C. 1433, 1459; 19 U.S.C. 1644(a); Treasury
Department Order No. 165, Revised, as amended.
Pursuant to the Privacy Act of 1974, as amended, 5 U.S.C.552a, the
Department of the Treasury published in the Federal Register of
November 9, 1995 (60 FR 56648), all of its systems of records including
the Pacific Basin Reporting Network--Treasury/Customs .171. This system
of records assists Customs in the proper performance of its functions
under the statutes and Treasury Department Order No. 165 cited above.
Under 5 U.S.C. 552a(j)(2), the head of an agency may promulgate
rules to exempt a system of records from certain provisions of 5 U.S.C.
552a if the system of records is maintained by an agency or component
thereof which performs as its principal function any activity
pertaining to the enforcement of criminal laws, including police
efforts to prevent,control, or reduce crime or to apprehend criminals,
and the activities of prosecutors, courts, correctional, probation,
pardon, or parole authorities, and which consists of: (a) Information
compiled for the purpose of identifying individual criminal offenders
and alleged offenders and consisting only of identifying data and
notations of arrests, the nature and disposition of criminal charges,
sentencing, confinement, release and parole and probation status; (b)
information compiled for the purpose of a criminal investigation,
including reports of informants and investigators, and associated with
an identifiable individual; or (c) reports identifiable to an
individual compiled at any stage of the process of enforcement of the
criminal laws from arrest or indictment through release from
supervision.
In addition, under 5 U.S.C. 552a(k)(2), the head of an agency may
promulgate rules to exempt a system of records from certain provisions
of 5 U.S.C. 552a if the system of records is investigatory material
compiled for law enforcement purposes other than material within the
scope of subsection (j)(2) set forth above.
Accordingly, pursuant to the authority contained in section
1.23(c) of the regulations of the Department of the Treasury (31 CFR
1.23(c)), the Commissioner of Customs has determined to exempt the
Pacific Basin Reporting Network from certain provisions of the Privacy
Act pursuant to 5 U.S.C. 552a(j)(2), (k)(2) and 31 CFR 1.23(c). The
proposed rule announcing the determination was published in the Federal
Register on November 19, 1992, at 57 FR 54539. No comments were
received in response to the proposed rule. The specific provisions and
the reasons for exempting the system of records from each specific
provision of 5 U.S.C. 552a are set forth below as required by 5 U.S.C.
552a(j)(2) and (k)(2).
General Exemption Under 5 U.S.C. 552a(j)(2)
Pursuant to 5 U.S.C. 552a(j)(2), the Commissioner of Customs
exempts the Pacific Basin Reporting Network from the following
provisions of the Privacy Act of 1974, as amended, 5 U.S.C. 552a(c)(3)
and (4); (d)(1), (2), (3) and (4); (e)(1),(2),(3), (4)(G),(H) and
(I);(e)(5) and (8); (f) and (g).
Specific Exemptions Under 5 U.S.C. 552a(k)(2)
To the extent the exemption under 5 U.S.C. 552a(j) does not apply
to the Pacific Basin Reporting Network, the Commissioner of Customs
exempts the Pacific Basin Reporting Network from the following
provisions of 5 U.S.C. 552a pursuant to 5 U.S.C. 552(k)(2): 5 U.S.C.
552a(c)(3); (d)(1),(2), (3) and (4); (e)(1), (e)(4)(G), (H) and (I);
and (f).
Reasons for Exemption Under 5 U.S.C. 552a(j)(2) and (k)(2)
Although more specific explanations are contained in 31 CFR 1.36
under the heading United States Customs Service, the following
explanations for exemptions will be helpful.
(1) Pursuant to 5 U.S.C. 552a(e)(4)(G) and (f)(1), individuals may
inquire whether a system of records contains records pertaining to
them. Application of these provisions to the Pacific Basin Reporting
Network would give individuals an opportunity to learn whether they
have been identified as either suspects or subjects of investigation.
As further described in the following subsection, access to such
knowledge would impair the ability of the Office of Investigations to
carry out its mission, since individuals could take steps to avoid
detection, inform associates that an investigation is in progress:
learn whether they are only suspects or identified as law violators;
begin, continue, or resume illegal conduct upon learning that they are
not identified in the system of records; or destroy evidence needed to
prove the violation.
(2) Pursuant to 5 U.S.C.552a(d)(1), (e)(4)(H) and (f)(2), (3) and
(5), individuals may gain access to records pertaining to them. The
application of these provisions to the Pacific Basin Reporting Network
would compromise the ability of the Office of Investigations to provide
useful tactical and strategic information to law enforcement agencies.
Permitting access to records contained in the Pacific Basin Reporting
Network would provide individuals with information concerning the
nature of any current investigations concerning them and would enable
them to avoid detection or apprehension. By discovering the collection
of facts which would form the basis of their arrest, by enabling them
to destroy or alter evidence of criminal conduct that would form the
basis for their arrest, and by learning that criminal investigators had
reason to believe that a crime was about to be committed, they could
delay the commission of the crime or change the scene of the crime to a
location which might not be under surveillance.
Permitting access to either on-going or closed investigations
files would also reveal investigative techniques and procedures, the
knowledge of which could enable individuals planning crimes to
structure their operations in such a way as to avoid detection or
apprehension and thereby neutralize law enforcement officers'
established investigative tools and procedures.
Permitting access to investigative files and records could,
moreover, disclose the identity of confidential sources and informers
and the nature of the information supplied and thereby endanger the
physical safety of sources of information by exposing them to reprisals
for having provided the information. Confidential sources and informers
might refuse to provide criminal investigators with valuable
information if they could not be secure in the knowledge that their
identities would not be revealed through disclosure of either their
names or the nature of the information they supplied. Loss of access to
such sources would seriously impair the ability of the Office
[[Page 60561]]
of Investigations to carry out its mandate.
Furthermore, providing access to records contained in the Pacific
Basin Reporting Network could reveal the identities of undercover law
enforcement officials who compiled information regarding the
individual's criminal activities and thereby endanger the physical
safety of those undercover officers or their families by exposing them
to possible reprisals.
By compromising the law enforcement value of the Pacific Basin
Reporting Network for the reasons outlined above, permitting access in
keeping with these provisions would discourage other law enforcement
and regulatory agencies, foreign and domestic, from freely sharing
information with the Office of Investigations and thus would restrict
the Office's access to information necessary to accomplish its mission
most effectively.
(3) Pursuant to 5 U.S.C. 552a(d)(2),(3), and (4),(e)(4)(H), and
(f)(4) an individual may request amendment of a record pertaining to
him or her and the agency must either amend the record, or note the
disputed portion of the record and provide a copy of the individual's
statement of disagreement with the agency's refusal to amend a record
to persons or other agencies to whom the record is thereafter
disclosed. Since these provisions depend on the individual's having
access to his or her records, and since these rules exempt the Pacific
Basin Reporting Network from provisions of 5 U.S.C. 552a, as amended,
relating to access to records, for the reasons set out in (2) above,
these provisions should not apply to the Pacific Basin Reporting
Network.
(4) Under 5 U.S.C. 552a(c)(4) an agency must inform any person or
other agency about any correction or notation of dispute that the
agency made in accordance with 5 U.S.C. 552a(d) to any record that the
agency disclosed to the person or agency if an accounting of the
disclosure was made. Since this provision depends on an individual's
having access to and an opportunity to request amendment of records
pertaining to him or her, and since these rules exempt the Pacific
Basin Reporting Network from the provisions of 5 U.S.C. 552a relating
to access to and amendment of records, for the reasons set out in
paragraph (3) above, this provision ought not apply to the Pacific
Basin Reporting Network.
(5) Under 5 U.S.C. 552a(c)(3) an agency is required to make an
accounting of disclosure of records available to the individual named
in the record upon his or her request. The accounting must state the
date, nature, and purpose of each disclosure of the record and the name
and address of the recipient.
The application of this provision would impair the ability of
enforcement agencies outside the Department of the Treasury to make
effective use of information provided by the Pacific Basin Reporting
Network. Making an accounting of disclosure available to the subjects
of an investigation would alert those individuals to the fact that
another agency is conducting an investigation into their criminal
activities and could reveal the geographic location of the other
agency's investigation, the nature and purpose of that investigation,
and dates on which that investigation was active. Violators possessing
such knowledge would be able to take measures to avoid detection or
apprehension by altering their operations, by transferring their
criminal activities to other geographical areas, or by destroying or
concealing evidence that would form the basis for arrest.
Moreover, providing accounting to the subjects of investigations
would alert them to the fact that the Pacific Basin Reporting Network
has information regarding their criminal activities and could inform
them of the general nature of that information. Access to such
information could reveal the operation of the Office of Investigation's
information gathering and analysis systems and permit violators to take
steps to avoid detection or apprehension.
(6) Under 5 U.S.C. 552a(e)(4)(1) an agency is required to publish a
general notice listing the categories of sources for information
contained in a system of records. The application of this provision to
the Pacific Basin Reporting Network could compromise its ability to
provide useful information to law enforcement agencies, since revealing
sources for the information could disclose investigative techniques and
procedures, result in threats or reprisals against informers by the
subjects of investigations, and cause informers to refuse to give full
information to criminal investigators for fear of having their
identities as sources disclosed.
(7) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term ``maintain'' as
defined in 5 U.S.C. 552a(a)(3) includes ``collect'' and
``disseminate.'' At the time that information is collected by the
Customs Service, there is often insufficient time to determine whether
the information is relevant and necessary to accomplish a purpose of
the Customs Service; in many cases information collected may not be
immediately susceptible to a determination of whether the information
is relevant and necessary, particularly in the early stages of
investigation, and in many cases information which initially appears to
be irrelevant and unnecessary may, upon further evaluation or upon
continuation of the investigation, prove to have particular relevance
to an enforcement program of the Customs Service. Further, not all
violations of law discovered during a Customs Service criminal
investigation fall within the investigative jurisdiction of the Customs
Service; in order to promote effective law enforcement, it often
becomes necessary and desirable to disseminate information pertaining
to such violations to other law enforcement agencies which have
jurisdiction over the offense to which the information relates. The
Customs Service should not be placed in a position of having to ignore
information relating to violations of law not within its jurisdiction
where that information comes to the attention of the Customs Service
through the conduct of a lawful Customs Service investigation. The
Customs Service therefore believes that it is appropriate to exempt the
above-listed systems of records from the provisions of 5 U.S.C.
552a(e)(1).
(8) Under 5 U.S.C. 552a(e)(2) an agency is requested to collect
information to the greatest extent practicable directly from the
subject individual when the information may result in adverse
determinations about an individual's rights, benefits, and privileges
under Federal programs. The application of this provision to the
Pacific Basin Reporting Network would impair the ability to collate,
analyze, and disseminate investigative intelligence and enforcement
information.
Most information collected about an individual under criminal
investigation is obtained from third parties, such as witnesses and
informers. It is usually not feasible to rely upon the subject of the
investigation as a source for information regarding his criminal
activities. An attempt to obtain information from the subject of a
criminal investigation will often alert that individual to the
existence of an investigation, thereby affording the individual an
opportunity to attempt to conceal his criminal activities so as to
avoid apprehension. In certain instances, the subject of a criminal
investigation is not required to supply
[[Page 60562]]
information to criminal investigators as a matter of legal duty. During
criminal investigations it is often a matter of sound investigative
procedure to obtain information from a variety of sources to verify
information already obtained.
(9) Pursuant to 5 U.S.C. 552a(e)(3) an agency must inform each
individual whom it asks to supply information, on the form that it uses
to collect the information or on a separate form that the individual
can retain, the agency's authority for soliciting the information;
whether the disclosure of information is voluntary or mandatory; the
principal purposes for which the agency will use the information and
the effects on the individual of not providing all or part of the
information. The Pacific Basin Reporting Network should be exempted
from this provision to avoid impairing the ability of the Office of
Investigation to collect and collate investigative intelligence and
enforcement data.
Confidential sources or undercover law enforcement officers often
obtain information under circumstances in which it is necessary to keep
the true purpose of their actions secret so as not to let the subject
of the investigation or his or her associates know that a criminal
investigation is in progress. If it became known that the undercover
officer was assisting in a criminal investigation, the officer's
physical safety could be endangered through reprisal, and that officer
may not be able to continue working on the investigation.
Further, individuals for personal reasons often would feel
inhibited in talking to a person representing a criminal law
enforcement agency but would be willing to talk to a confidential
source or undercover officer whom they believe not to be involved in
law enforcement activities. Providing a confidential source of
information with written evidence that he or she was a source, as
required by this provision, could increase the likelihood that the
source of information would be subject to retaliation by the subject of
the investigation. Further, application of the provision could result
in an unwarranted invasion of the personal privacy of the subject of
the criminal investigation, where further investigation reveals that
the subject was not involved in any criminal activity.
(10) Pursuant to 5 U.S.C. 552a(e)(5) an agency must maintain all
records it uses in making any determination about any individual with
such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination.
Since 5 U.S.C. 552a(a)(3) defines ``maintain'' to include
``collect'' and ``disseminate'', application of this provision to the
Pacific Basin Reporting Network would hinder the initial collection of
any information that could not, at the moment of collection, be
determined to be accurate, relevant, timely, and complete. Similarly,
application of this provision would seriously restrict the ability of
Customs to disseminate information from the Pacific Basin Reporting
Network pertaining to a possible violation of law to law enforcement
and regulatory agencies. In collecting information during a criminal
investigation, it is often impossible or unfeasible to determine
accuracy, relevance, timeliness or completeness prior to collection of
the information.
Information that may initially appear inaccurate, irrelevant,
untimely, or incomplete may, when collected and analyzed with other
available information, become more pertinent as an investigation
progresses. In addition, application of this provision could seriously
impede criminal investigators and intelligence analysts in the exercise
of their judgment in reporting results obtained during criminal
investigations.
(11) Under 5 U.S.C. 552a(e)(8) an agency must make reasonable
efforts to serve notice on an individual when the agency makes any
record on the individual available to any person under compulsory legal
process, when such process becomes a matter of public record. The
Pacific Basin Reporting Network should be exempted from this provision
to avoid revealing investigative techniques and procedures outlined in
those records and to prevent revelation of the existence of an ongoing
investigation where there is need to keep the existence of the
investigation secret.
(12) Under 5 U.S.C. 552a(g) civil remedies are provided to an
individual when an agency wrongfully refuses to amend a record or to
review a request for amendment, when an agency wrongfully refuses to
grant access to a record, when an agency fails to maintain accurate,
relevant, timely, and complete records which are used to make a
determination adverse to the individual, and when an agency fails to
comply with any other provision of 5 U.S.C. 552a so as to adversely
affect the individual.
The Pacific Basin Reporting Network is exempted from this provision
to the extent that the civil remedies may relate to this provision of 5
U.S.C. 552a from which these rules exempt the Pacific Basin Reporting
Network, since there are civil remedies for failure to comply with
provisions from which the Pacific Basin Reporting Network is exempted.
Exemption from this provision will also protect the Pacific Basin
Reporting Network from baseless civil court actions that might hamper
its ability to collate, analyze, and disseminate investigative
intelligence and law enforcement data.
A conforming amendment to 31 CFR 1.36 will be published at a later
date in the Federal Register by the Department of the Treasury.
George J. Weise,
Commissioner of Customs.
Approved:
Dated: November 14, 1996.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
Dated: November 18, 1996.
Alex Rodriguez,
Deputy Assistant Secretary (Administration).
[FR Doc. 96-30280 Filed 11-27-96; 8:45 am]
BILLING CODE 4820-02-F
