Privacy Act of 1974; Implementation

DEPARTMENT OF THE TREASURY

Customs Service

31 CFR Part 1

Privacy Act of 1974; Implementation

AGENCY: Customs Service, Department of the Treasury.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In accordance with the Privacy Act of 1974, as amended,

Customs has determined to exempt a system of records, the Seized Asset

and Case Tracking System (SEACATS) Treasury/ Customs .213 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.

DATES: Comments must be received no later than February 8, 1999.

ADDRESSES: Comments (preferably in triplicate) may be submitted to the

U.S. Customs Service, Office of Regulations and Rulings, Disclosure Law

Branch, 1300 Pennsylvania Ave. NW., Washington, DC 20229. Comments will

be available for inspection and copying at the Disclosure Law Branch,

1300 Pennsylvania Ave., NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Ellen Mulvenna, Office of Information

and Technology, U.S. Customs Service, (202) 927-0800.

SUPPLEMENTARY INFORMATION: This computerized database will permit the

retrieval of information as part of a redesigned work process improving

the way the Office of Information and Technology uses technology to

maximize efficiency. The purpose of the newly proposed system of

records is to provide Customs and the Treasury Executive Office of

Asset Forfeiture with a comprehensive system for tracking seized and

forfeited property, penalties and liquidated damages from case

initiation to final resolution. The system includes investigative

reports relating to seizures and other law enforcement matters.

Authority for the system is provided by 5 U.S.C. 301; and Treasury

Department Order No. 165, Revised, as amended

nd 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 is proposing to exempt the Seized Asset and

Case Tracking System (SEACATS) 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

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

proposes to exempt the Seized Asset and Case Tracking System (SEACATS)

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),

. 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

proposes to exempt the Seized Asset and Case Tracking System (SEACATS)

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),

(e)(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)(2) does not

apply to the Seized Asset and Case Tracking System (SEACATS), the

Commissioner of Customs exempts the Seized Asset and Case Tracking

System (SEACATS) 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 Seized Asset and Case

Tracking System (SEACATS) would give individuals an opportunity to

learn whether they have been identified as either suspects or subjects

of investigation

ations 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 Seized Asset and Case

Tracking System (SEACATS) 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 offices

supplying information to the Office of Information and Technology to

carry out their investigation, 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 Seized Asset and Case Tracking

System (SEACATS) would compromise the ability of the Office of

Information and Technology to provide useful tactical and strategic

information to law enforcement agencies. Permitting access to records

contained in the Seized Asset and Case Tracking System (SEACATS) would

provide individuals with information concerning the nature of any

current investigations concerning them and would enable them to avoid

detection or apprehension

bility of the Office of

Information and Technology to provide useful tactical and strategic

information to law enforcement agencies. Permitting access to records

contained in the Seized Asset and Case Tracking System (SEACATS) 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 investigative 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 of

Information and Technology to carry out its mandate

nformers

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 of

Information and Technology to carry out its mandate. Furthermore,

providing access to records contained in the Seized Asset and Case

Tracking System (SEACATS) 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

Seized Asset and Case Tracking System (SEACATS) 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

Information and Technology 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 Seized

Asset and Case Tracking System (SEACATS) 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 Seized Asset

and Case Tracking System (SEACATS)

thereafter

disclosed. Since these provisions depend on the individual's having

access to his or her records, and since these rules exempt the Seized

Asset and Case Tracking System (SEACATS) 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 Seized Asset

and Case Tracking System (SEACATS).

(4) 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

Seized Asset and Case Tracking System (SEACATS). 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 Seized Asset and Case Tracking System (SEACATS)

has information regarding their criminal activities and could inform

them of the general nature of that information

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 Seized Asset and Case Tracking System (SEACATS)

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 Customs' information

gathering and analysis systems and permit violators to take steps to

avoid detection or apprehension.

(5) 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 Seized Asset

and Case Tracking System (SEACATS) 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 Seized

Asset and Case Tracking System (SEACATS).

(6) Under 5 U.S.C. 552a(e)(4)(I) 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 Seized Asset and Case Tracking System (SEACATS) 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.

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

iolations 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 cited system 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 Seized

Asset and Case Tracking System (SEACATS) 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 information to criminal

investigators as a matter of legal duty

ion 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 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 Seized Asset and Case Tracking System (SEACATS) should

be exempted from this provision to avoid impairing the ability of the

Office of Information and Technology 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

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''

bject 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 Seized Asset

and Case Tracking System (SEACATS) 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 SEACATS 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.

nitially 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

Seized Asset and Case Tracking System (SEACATS) 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 Seized Asset and Case Tracking System

(SEACATS) 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 Seized Asset and Case Tracking System (SEACATS), since

there are civil remedies for failure to comply with provisions from

which SEACATS is exempted

a so as to adversely

affect the individual. The Seized Asset and Case Tracking System

(SEACATS) 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 Seized Asset and Case Tracking System (SEACATS), since

there are civil remedies for failure to comply with provisions from

which SEACATS is exempted. Exemption from this provision will also

protect the Seized Asset and Case Tracking System from baseless civil

court actions that might hamper its ability to collate, analyze, and

disseminate investigative intelligence and law enforcement data.

Consideration will be given to any written comments timely

submitted to Customs. Comments submitted will be available for public

inspection in accordance with the Freedom of Information Act (5 U.S.C.

552), 1.4 Treasury Department Regulations (31 CFR 1.4), Customs

Regulations (19 CFR 103.11(b)), on regular business days between the

hours of 9:00 a.m. and 4:30 p.m. at the Office of Regulations and

Rulings, 1300 Pennsylvania Avenue, NW., Washington, DC.

After consideration of the comments received, notice will be given

concerning the exempt status of the system of records. If the

Department finally exempts as herein proposed, a conforming amendment

to 31 CFR 1.36 will also be published.

As required by Executive Order 12866, it has been determined that

this proposed rule is not a significant regulatory action and,

therefore, does not require a regulatory impact analysis.

Pursuant to the requirements of the Regulatory Flexibility Act, 5

U.S.C. 601-612, it is hereby certified that this rule will not have

significant economic impact on a substantial number of small entities.

In accordance with the provisions of the Paperwork Reduction Act of

1995, the Department of the Treasury has determined that this proposed

rule would not impose new recordkeeping, application, reporting, or

other types of information collection requirements.

S.C. 601-612, it is hereby certified that this rule will not have

significant economic impact on a substantial number of small entities.

In accordance with the provisions of the Paperwork Reduction Act of

1995, the Department of the Treasury has determined that this proposed

rule would not impose new recordkeeping, application, reporting, or

other types of information collection requirements.

List of Subjects in 31 CFR Part 1

Privacy.

Part 1 of Title 31 of the Code of Federal Regulations is amended as

follows:

PART 1--[AMENDED]

1. The authority citation for part 1 continues to read as follows:

Authority: 5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued

under 5 U.S.C. 522 as amended. Subpart C also issued under 5 U.S.C.

552a.

Sec. 1.36 [Amended]

2. Section 1.36 of Subpart C is amended by adding the following

text in numerical order in paragraphs a.1. and b.1. under the heading

UNITED STATES CUSTOMS SERVICE:

* * * * *

a. * * *

1. * * *

* * * * *

00.213--Seized Asset and Case Tracking System (SEACATS)

* * * * *

b. * * *

1. * * *

* * * * *

00.213--Seized Asset and Case Tracking System (SEACATS)

* * * * *

Dated: November 19, 1998.

Shelia Y. McCann,

Deputy Assistant Secretary (Administration).

[FR Doc. 99-355 Filed 1-7-99; 8:45 am]

BILLING CODE 4820-02-P