80 FR 71690 - Freedom of Information Act Procedures

DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection

Federal Register Volume 80, Issue 221 (November 17, 2015)

Page Range		71690-71693
FR Document		2015-29183

This final rule amends the U.S. Customs and Border Protection (``CBP'') Freedom of Information Act (``FOIA'') regulations. Due to the transfer of CBP from the Department of the Treasury to the Department of Homeland Security (``DHS''), and the subsequent promulgation of DHS FOIA regulations which provide that the DHS FOIA regulations generally apply to all DHS components, most of the CBP FOIA regulations have been functionally superseded. This document sets forth that, with the exception of a regulation pertaining to the treatment of confidential commercial information, CBP will apply the DHS FOIA and Privacy Act regulations for purposes of administering the FOIA. This final rule removes outdated regulations, aligns CBP's regulatory procedures for processing FOIA requests with those of DHS, thereby creating a consistent standard among the DHS components, and brings CBP within compliance of the FOIA guidelines developed by OMB.

Federal Register, Volume 80 Issue 221 (Tuesday, November 17, 2015)

[Federal Register Volume 80, Number 221 (Tuesday, November 17, 2015)]
[Rules and Regulations]
[Pages 71690-71693]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-29183]

[[Page 71690]]

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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection

19 CFR Parts 103, 161, and 175

[CBP Dec. 15-16]
RIN 1651-AB05

Freedom of Information Act Procedures

AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.

ACTION: Final rule.

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SUMMARY: This final rule amends the U.S. Customs and Border Protection
(``CBP'') Freedom of Information Act (``FOIA'') regulations. Due to the
transfer of CBP from the Department of the Treasury to the Department
of Homeland Security (``DHS''), and the subsequent promulgation of DHS
FOIA regulations which provide that the DHS FOIA regulations generally
apply to all DHS components, most of the CBP FOIA regulations have been
functionally superseded. This document sets forth that, with the
exception of a regulation pertaining to the treatment of confidential
commercial information, CBP will apply the DHS FOIA and Privacy Act
regulations for purposes of administering the FOIA. This final rule
removes outdated regulations, aligns CBP's regulatory procedures for
processing FOIA requests with those of DHS, thereby creating a
consistent standard among the DHS components, and brings CBP within
compliance of the FOIA guidelines developed by OMB.

DATES: Effective: November 17, 2015.

FOR FURTHER INFORMATION CONTACT: Shari Suzuki, Chief, FOIA Appeals,
Policy & Litigation Branch, Office of International Trade, (202) 325-
0121.

SUPPLEMENTARY INFORMATION:

Background

The Freedom of Information Act (``FOIA'') (5 U.S.C. 552) provides
for the disclosure of agency records and information to the public
unless the records and information are exempted from disclosure. U.S.
Customs and Border Protection (``CBP'') regulations specifically
covering the production and disclosure of records under the FOIA are
set forth in part 103 of title 19 of the Code of Federal Regulations
(19 CFR part 103) and consist of sections 103.1-103.13 (19 CFR 103.1-
103.13).
Prior to March 1, 2003, the United States Customs Service
(``Customs'') was a component of the Department of the Treasury. On
November 25, 2002, the President signed the Homeland Security Act of
2002, 6 U.S.C. 101 et seq., Public Law 107-296, (the ``HSA''),
establishing the Department of Homeland Security (``DHS''). Pursuant to
section 403(1) of the HSA, Customs was transferred from Treasury to DHS
effective March 1, 2003, and renamed as the Bureau of Customs and
Border Protection (now U.S. Customs and Border Protection or CBP).
DHS published FOIA and Privacy Act regulations in the Federal
Register (68 FR 4056) as an interim rule on January 27, 2003. The DHS
regulations specifically covering FOIA-related matters are set forth in
subpart A of part 5 of title 6 of the Code of Federal Regulations (6
CFR part 5, subpart A) and consist of sections 5.1-5.12 (6 CFR 5.1-
5.12).
Section 5.1(a)(2) (6 CFR 5.1(a)(2)) states that, except to the
extent a DHS component adopts separate guidance under the FOIA, the
provisions of the DHS FOIA regulations apply to each component of the
Department. However, under these regulations DHS components may issue
their own guidance pursuant to approval by DHS. As discussed in more
detail below, CBP published in the Federal Register (71 FR 54197) a
final rule on September 14, 2006, relating to the treatment of
confidential commercial information. See also interim final rule issued
on August 11, 2003 at 68 FR 47453. No other provisions of the CBP FOIA
regulations have been amended since CBP became a part of DHS.
For additional resources, please see the CBP FOIA page online at
http://www.cbp.gov/site-policy-notices/foia.

Need for Correction

Due to the promulgation of DHS FOIA regulations which provide that
the DHS FOIA regulations generally apply to all DHS components except
to the extent that a DHS component adopts separate guidance, most of
the CBP FOIA regulations have been functionally superseded. The current
CBP regulation, section 103.0, directs the public to the Treasury FOIA
regulations found at 31 CFR part 1 and instructs that for any
inconsistency between 19 CFR part 103 and the Treasury FOIA
regulations, the Treasury FOIA regulations control. The existing CBP
regulations are now obsolete and retaining inconsistent regulations
causes confusion for those seeking to file a FOIA request. As a result,
CBP is amending sections 103.0 through 103.3, removing and reserving
sections 103.4 through 103.13 of Subpart A of Part 103, and directing
readers to the DHS FOIA regulations. This will align CBP's regulatory
procedures for processing FOIA requests and appeals with DHS
procedures.
The DHS FOIA regulations reflect many Congressional amendments to
the FOIA, for which conforming changes had not been made in the CBP
FOIA regulations. The DHS FOIA regulations also reflect OMB's
guidelines established in the Uniform Freedom of Information Act Fee
Schedule and Guidelines publication. In addition, DHS recently proposed
additional updates to its FOIA regulations to update and streamline the
language of several procedural provisions, and to incorporate changes
brought about by the amendments to the FOIA under the OPEN Government
Act of 2007, among other changes (80 FR 45101, July 29, 2015).
While in practice, CBP currently follows the FOIA, as amended, and
the rules and procedures set forth in the DHS FOIA regulations, CBP
hopes to eliminate confusion for the public making FOIA requests, as
well as CBP personnel handling FOIA requests by removing conflicting
and sometimes outdated CBP FOIA regulations and directing readers to
the DHS FOIA regulations, as appropriate.

Discussion of Amendments

This document makes amendments to the scope section of part 103 (19
CFR 103.0), sections 103.1 through 103.3 of subpart A (19 CFR 103.1-
103.3), and by removing sections 103.4 through 103.13 of subpart A of
19 CFR part 103 (19 CFR 103.4-103.13). Specifically, this document
amends section 103.0 by removing references to the FOIA subject matters
that are no longer discussed within Part 103 because they are now
addressed in the DHS regulations and amends section 103.1 to account
for CBP's move to virtual reading rooms (19 CFR 103.1). In addition,
section 103.2 is revised to explain in paragraph (a) that CBP processes
FOIA requests pursuant to the DHS FOIA regulations set forth in 6 CFR
part 5, subpart A (19 CFR 103.2(a)), unless CBP provides a particular
exception. Paragraph (b) of section 103.2 sets forth the exception that
CBP will not apply the DHS FOIA regulation pertaining to the treatment
of business information contained in 6 CFR 5.8 (19 CFR 103.2(b)).
Rather, as explained below, CBP will continue to apply its current
regulation in section 103.35 (19 CFR 103.35) which governs the
treatment of confidential commercial information. A corresponding
amendment is made to section 103.35 (19 CFR 103.35). Lastly, section
103.3 is revised to explain how CBP processes Privacy Act requests
pursuant to the DHS Privacy Act

[[Page 71691]]

regulations set forth in 6 CFR part 5, subpart B (6 CFR 5).

Exceptions to DHS Regulations

On September 14, 2006, CBP published a final rule in the Federal
Register (71 FR 54197) governing the disclosure procedures that CBP
follows when commercial information is provided to CBP by a business
submitter. The rule finalized an interim rule in section 103.35 (19 CFR
103.35) to subpart C, published in the Federal Register on August 11,
2003 (68 FR 47453), in order to clearly set forth CBP's policy
governing the disclosure of confidential commercial information that is
provided to CBP by a business submitter.
As opposed to section 103.35 in title 19 CFR, the DHS FOIA
regulation controlling the treatment of business information in 6 CFR
5.8 contains an affirmative requirement that a business submitter must
identify information as privileged or confidential in order to be
withheld from disclosure. In this regard, 6 CFR 5.8 specifically states
that a submitter of business information must use good-faith efforts to
designate, by appropriate markings, either at the time of submission or
at a reasonable time thereafter, any portions of their submission that
they consider to be exempt from disclosure under the FOIA.
Section 5.8 of title 6 CFR also states that, before business
information is released, notice will be provided to submitters whenever
a FOIA request is made that seeks the business information that has
been designated in good faith as confidential or when the agency has a
reason to believe that the information may be protected from
disclosure. When notice is provided by the agency, the submitter is
required to submit a detailed written statement specifying the grounds
for withholding any portion of the information and show why the
information is a trade secret or commercial or financial information
that is privileged or confidential.
CBP has determined that 19 CFR 103.35 remains an effective
regulation. In addition, CBP believes that this regulation should be
retained in order to assure the public that CBP's established policy
governing the treatment of confidential commercial information subject
to FOIA requests will not change as a result of the amendments in this
document. See 68 FR 47753 (August 11, 2003). For example, CBP will not
require business submitters to designate information as protected from
disclosure as privileged or confidential in order for CBP to withhold
the information in response to a FOIA request. Therefore, CBP will
continue to apply 19 CFR 103.35 in order to process confidential
information under the FOIA. This action is fully consistent with DHS's
recent proposed rule on FOIA, which explicitly proposed to incorporate
the provisions of 19 CFR 103.35 into DHS's title 6 FOIA regulation. See
80 FR at 45103.

Other Changes

CBP has also determined that paragraph (b) of section 103.13 (19
CFR 103.13(b)), which provides that identifying data will not be
eliminated from petitions by domestic interested parties, is more
appropriately placed within 19 CFR part 175. Part 175 sets forth the
regulations for petitions by domestic interested parties. As existing
19 CFR 103.13(b) is specific to petitions by domestic interested
parties, this relocation will provide the public involved with such
petitions with all relevant regulations in one location. Accordingly,
this document moves the provision currently found in paragraph (b) of
section 103.13 (19 CFR 103.13(b)) to the end of section 175.21(b) (19
CFR 175.21(b)).
This document also amends sections 103.31a, 103.32, 103.34, 161.15,
and 175.21 (19 CFR 103.31a, 103.32, 103.34, 161.15, and 175.21) in
order to remove references in these sections to the CBP FOIA
regulations that are being removed and to update the references
accordingly. In sections 103.31a and 103.32 (19 CFR 103.31a and
103.32), references to CBP FOIA regulations are removed and replaced
with references to the DHS FOIA provisions at 6 CFR 5.3. In addition,
the introductory paragraph to section 103.31a (19 CFR 103.31a) is
revised to replace a reference to section 103.12(d), which is removed
by this document, with text from current section 103.12(d) (19 CFR
103.12) providing that trade secrets and commercial or financial
information are per se exempt from disclosure.
In sections 103.34, 161.15, and 175.21 (19 CFR 104.34, 161.15, and
175.21), the reference to CBP FOIA regulations are replaced with
references to the FOIA statute at 5 U.S.C. 552. In addition, section
161.15 (19 CFR 161.15) is revised to replace a reference to section
103.12(g)(4) (19 CFR 103.12), which is removed by this document, with a
reference to 5 U.S.C. 552(b)(7)(D) and text from current section
103.12(g)(4). Section 161.15 (19 CFR 161.15) is also being revised to
replace a reference to 103.12(i) (19 CFR 103.12), which is removed by
this document, with text from current section 103.12(i) which tracks
the language found in 5 U.S.C. 552(a)(7)(C)(2). Lastly, this document
makes non-substantive amendments to these regulations to reflect the
nomenclature changes effected by the reorganization of the U.S. Customs
Service under DHS in 2003 and to remove the word consignee from section
175.21 to be consistent with the statutory amendments to 19 U.S.C.
1484(a)(2)(B).

Executive Orders 13563 and 12866

Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule is not a ``significant regulatory action,''
under section 3(f) of Executive Order 12866. Accordingly, the Office of
Management and Budget has not reviewed this regulation.
Following the creation of DHS in 2003, DHS promulgated the Freedom
of Information Act and Privacy Act Procedures interim final rule set
forth in 6 CFR part 5. For consistent and appropriate administration,
CBP generally began applying the DHS FOIA procedures after their
publication. However, the CBP FOIA procedures remained in the Code of
Federal Regulations, sometimes causing confusion about their use among
the public and agency personnel. Unlike the CBP FOIA regulations
outlined in 19 CFR 103 subpart A, the DHS FOIA procedures are up-to-
date and conform to FOIA guidelines established by OMB. This rule will
serve to remove obsolete provisions of CBP's FOIA regulations and will
establish uniform FOIA administration procedures among DHS and its
component, CBP, in the Code of Federal Regulations. This rule will not
affect CBP's current application of FOIA procedures as CBP already
adheres to DHS FOIA regulations. Instead, the rule will provide greater
clarity of CBP's application of FOIA procedures. Therefore, this rule
will not have an economic impact on CBP or the public.

Inapplicability of Notice and Delayed Effective Date

Pursuant to 5 U.S.C. 553(b)(B), CBP has determined that it would be
unnecessary and contrary to the public interest to delay publication of
this rule in final form pending an opportunity for public comment
because the existing regulations are obsolete and maintaining

[[Page 71692]]

inconsistent regulations causes confusion for the public. In addition,
pursuant to 5 U.S.C. 553(d)(3), CBP has determined that there is good
cause for this final rule to become effective immediately upon
publication. CBP currently follows the DHS FOIA regulations as a matter
of law and policy. The amendments contained in this document merely
align CBP's regulatory procedures for processing FOIA requests and
appeals with DHS procedures and bring CBP in compliance with OMB's
guidelines established in the Uniform Freedom of Information Act Fee
Schedule and Guidelines publication.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et. seq.), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996,
requires agencies to assess the impact of regulations on small
entities. A small entity may be a small business (defined as any
independently owned and operated business not dominant in its field
that qualifies as a small business per the Small Business Act); a small
not-for-profit organization; or a small governmental jurisdiction
(locality with fewer than 50,000 people). The Regulatory Flexibility
Act applies only to rules subject to notice and comment rulemaking
requirements under the Administrative Procedure Act (APA) or any other
law (5 U.S.C. 553(a)(2)). Because this rule is not subject to such
notice and comment rulemaking requirements, the provisions of the
Regulatory Flexibility Act do not apply. However, as discussed above in
the ``Executive Orders 13563 and 12866'' section, this rule will not
have an economic impact on the public because it merely clarifies CBP's
current adherence to DHS FOIA procedures rather than existing, outdated
CBP FOIA regulations.

Signing Authority

This document is being issued in accordance with 19 CFR 0.2(a),
which provides that the authority of the Secretary of the Treasury with
respect to CBP regulations that are not related to customs revenue
functions was transferred to the Secretary of Homeland Security
pursuant to section 403(1) of the Homeland Security Act of 2002.
Accordingly, this final rule to amend such regulations may be signed by
the Secretary of Homeland Security (or his delegate).

List of Subjects

19 CFR Part 103

Administrative practice and procedure, Computer technology,
Confidential business information, Customs duties and inspection,
Freedom of information, Privacy, Reporting and recordkeeping
requirements.

19 CFR Part 161

Customs duties and inspection, Exports, Imports, Law enforcement.

19 CFR Part 175

Administrative practice and procedure, Customs duties and
inspection, Reporting and recordkeeping requirements.

Amendments to the CBP Regulations

For the reasons discussed in the preamble, parts 103, 161, and 175
of title 19 of the Code of Federal Regulations (19 CFR parts 103, 161,
and 175) are amended as set forth below.

PART 103--AVAILABILITY OF INFORMATION

0
1. The general authority citation for part 103 continues to read as
follows:

Authority: 5 U.S.C. 301; 552, 552a; 19 U.S.C. 66, 1624; 31
U.S.C. 9701.
* * * * *

0
2. Section 103.0 is revised to read as follows:

Sec. 103.0 Scope.

This part governs the production/disclosure of agency-maintained
documents/information requested pursuant to the Freedom of Information
Act (FOIA), as amended (5 U.S.C. 552), the Privacy Act of 1974, as
amended (5 U.S.C. 552a), and/or under other statutory or regulatory
provisions and/or as requested through administrative and/or legal
processes. In this respect, this part contains regulations on
production or disclosure in federal, state, local, and foreign
proceedings and includes specific information pertaining to the
procedures to be followed when producing or disclosing documents or
information under various circumstances. In addition, this part
contains regulations on other information subject to restricted access.
As information obtained by CBP is derived from myriad sources, persons
seeking information should consult with the appropriate field officer
before invoking the formal procedures set forth in this part. Except
for 19 CFR 103.35, the regulations in this part supplement the
regulations of the Department of Homeland Security regarding public
access to records found at 6 CFR part 5. For purposes of this part, the
CBP Office of the Chief Counsel is considered to be a part of CBP.

Subpart A--Production of Documents/Disclosure of Information Under
the FOIA

0
3. Section 103.1 is revised to read as follows:

Sec. 103.1 Public Reading Room.

CBP maintains a virtual public reading room at http://foiarr.cbp.gov/ where the material required to be made available under
5 U.S.C. 552(a) and this part may be inspected and copied.

0
4. Section 103.2 is revised to read as follows:

Sec. 103.2 Department of Homeland Security Freedom of Information Act
Procedures.

(a) Department of Homeland Security FOIA Regulations. In order to
process requests for documents/information and appeals under the
Freedom of Information Act (FOIA), as amended (5 U.S.C. 552), except as
provided in paragraph (b) of this section, CBP applies the Department
of Homeland Security FOIA regulations in 6 CFR part 5, subpart A.
(b) Exception. Notwithstanding section 5.8 of Title 6, CBP retains
its own policy on the treatment of confidential commercial information
provided in Sec. 103.35.

0
5. Section 103.3 is revised to read as follows:

Sec. 103.3 Department of Homeland Security Privacy Act Procedures.

Department of Homeland Security Privacy Act Regulations. In order
to process access requests for documents/information and appeals under
the Privacy Act of 1974, as amended (5 U.S.C. 552a), CBP applies the
Department of Homeland Security Privacy Act regulations in 6 CFR part
5, subpart B.

Sec. Sec. 103.4 through 103.13 [Removed and Reserved]

0
6. Remove and reserve Sec. Sec. 103.4 through 103.13.
0
7. In Sec. 103.31a, revise the introductory text to read as follows:

Sec. 103.31a Advance electronic information for air, truck, and rail
cargo; Importer Security Filing Information for vessel cargo.

The following types of advance electronic information are per se
exempt from disclosure as either trade secrets or privileged or
confidential commercial or financial information, unless CBP receives a
specific request for such records pursuant to 6 CFR 5.3, and the

[[Page 71693]]

owner of the information expressly agrees in writing to its release:
* * * * *

Sec. 103.32 [Amended]

0
8. In Sec. 103.32:
0
a. In the parenthetical clause in the first sentence, add the words
``or CBP Decisions'' after the words ``Treasury Decisions'';
0
b. Remove the word ``Customs'' each place it appears and add in its
place the term ``CBP'';
0
c. Remove the word ``shall'' each place it appears and add in its place
the word ``must''; and
0
d. Remove the reference in the last sentence to ``Sec. 103.5'' and add
in its place ``6 CFR 5.3''.
0
9. In Sec. 103.34:
0
a. The section heading is revised;
0
b. Paragraph (a) is amended by:
0
i. Removing the word ``Customs'' each place it appears and adding in
its place the term ``CBP'';
0
ii. Removing the phrase ``the U.S. Customs Service'' and adding in its
place the term ``CBP''; and
0
c. Paragraph (b) is revised.
The revisions read as follows:

Sec. 103.34 Sanctions for improper actions by CBP officers or
employees.

* * * * *
(b) Under 5 U.S.C. 552(a)(4)(F), the Special Counsel, Merit Systems
Protection Board, has authority, upon the issuance of a written finding
by a court that a CBP officer or employee who was primarily responsible
for withholding a record may have acted arbitrarily or capriciously, to
initiate a proceeding to determine whether disciplinary action is
warranted against that officer or employee. Such proceedings are
governed by Merit Systems Protection Board regulations found at Part
1201 of Title 5 of the Code of Federal Regulations.

0
10. In Sec. 103.35, the first sentence of paragraph (a) is revised to
read as follows:

Sec. 103.35 Confidential commercial information; exempt.

(a) * * * Notwithstanding 6 CFR 5.8, for purposes of this section,
``commercial information'' is defined as trade secret, commercial, or
financial information obtained from a person. * * *
* * * * *

PART 161--GENERAL ENFORCEMENT PROVISIONS

0
11. The general authority citation for part 161 continues to read and a
specific authority citation for section 161.15 is added to read as
follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1600, 1619, 1624.
* * * * *
Section 161.15 also issued under 5 U.S.C. 552.
0
12. Section 161.15 is revised to read as follows:

Sec. 161.15 Confidentiality for informant.

The name and address of the informant must be kept confidential. No
files or information will be revealed which might aid in the
unauthorized identification of an informant. Pursuant to 5 U.S.C.
552(b)(7)(D), specific informant records that are exempt from
disclosure are those that could reasonably be expected to disclose the
identity of a confidential source, including a state, local, or foreign
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source. Informant records maintained by CBP under an
informant's name or personal identifier that are requested by a third
party according to the informant's name or personal identifier are not
subject to the disclosure requirements of 5 U.S.C. 552(a), unless the
informant's status as an informant has been officially confirmed.

PART 175--PETITIONS BY DOMESTIC INTERESTED PARTIES

0
13. The general authority citation for part 175 continues, and a
specific authority citation for section 175.21 is added, to read as
follows:

Authority: R.S. 251, as amended, secs. 516, 624, 46 Stat. 735,
as amended, 759; 19 U.S.C. 66, 1516, 1624, unless otherwise noted.
* * * * *
Section 175.21 also issued under 5 U.S.C. 552.

0
14. In Sec. 175.21, paragraph (b) is revised to read as follows:

Sec. 175.21 Notice of filing of petition, inspection of petition, and
inspection of documents and papers.

* * * * *
(b) Inspection of petition; inspection of documents and papers. The
petition filed by a domestic interested party will be made available
for inspection by interested parties in accordance with the provisions
of 5 U.S.C. 552(a). However, neither a petitioner nor other interested
parties will in any case be permitted to inspect documents or papers of
the importer of record which are exempted from disclosure by 5 U.S.C.
552(b)(4). Identifying data is not to be deleted from petitions filed
by American manufacturers, producers, and wholesalers pursuant to
section 516, Tariff Act of 1930, as amended (19 U.S.C. 1516).

Dated: November 9, 2015.
R. Gil Kerlikowske,
Commissioner, U.S. Customs and Border Protection.
[FR Doc. 2015-29183 Filed 11-16-15; 8:45 am]
BILLING CODE 9111-14-P

71690 Federal Register / Vol. 80, No. 221 / Tuesday, November 17, 2015 / Rules and Regulations

DEPARTMENT OF HOMELAND President signed the Homeland Security procedures for processing FOIA requests
SECURITY Act of 2002, 6 U.S.C. 101 et seq., Public and appeals with DHS procedures.
Law 107–296, (the ‘‘HSA’’), establishing The DHS FOIA regulations reflect
U.S. Customs and Border Protection the Department of Homeland Security many Congressional amendments to the
(‘‘DHS’’). Pursuant to section 403(1) of FOIA, for which conforming changes
19 CFR Parts 103, 161, and 175 the HSA, Customs was transferred from had not been made in the CBP FOIA
Treasury to DHS effective March 1, regulations. The DHS FOIA regulations
[CBP Dec. 15–16]
2003, and renamed as the Bureau of also reflect OMB’s guidelines
RIN 1651–AB05 Customs and Border Protection (now established in the Uniform Freedom of
U.S. Customs and Border Protection or Information Act Fee Schedule and
Freedom of Information Act CBP). Guidelines publication. In addition,
Procedures DHS published FOIA and Privacy Act DHS recently proposed additional
AGENCY: U.S. Customs and Border regulations in the Federal Register (68 updates to its FOIA regulations to
Protection, Department of Homeland FR 4056) as an interim rule on January update and streamline the language of
Security. 27, 2003. The DHS regulations several procedural provisions, and to
specifically covering FOIA-related incorporate changes brought about by
ACTION: Final rule.
matters are set forth in subpart A of part the amendments to the FOIA under the
SUMMARY: This final rule amends the 5 of title 6 of the Code of Federal OPEN Government Act of 2007, among
U.S. Customs and Border Protection Regulations (6 CFR part 5, subpart A) other changes (80 FR 45101, July 29,
(‘‘CBP’’) Freedom of Information Act and consist of sections 5.1–5.12 (6 CFR 2015).
(‘‘FOIA’’) regulations. Due to the 5.1–5.12). While in practice, CBP currently
transfer of CBP from the Department of Section 5.1(a)(2) (6 CFR 5.1(a)(2)) follows the FOIA, as amended, and the
the Treasury to the Department of states that, except to the extent a DHS rules and procedures set forth in the
Homeland Security (‘‘DHS’’), and the component adopts separate guidance DHS FOIA regulations, CBP hopes to
subsequent promulgation of DHS FOIA under the FOIA, the provisions of the eliminate confusion for the public
regulations which provide that the DHS DHS FOIA regulations apply to each making FOIA requests, as well as CBP
FOIA regulations generally apply to all component of the Department. However, personnel handling FOIA requests by
DHS components, most of the CBP FOIA under these regulations DHS removing conflicting and sometimes
regulations have been functionally components may issue their own outdated CBP FOIA regulations and
superseded. This document sets forth guidance pursuant to approval by DHS. directing readers to the DHS FOIA
that, with the exception of a regulation As discussed in more detail below, CBP regulations, as appropriate.
pertaining to the treatment of published in the Federal Register (71
Discussion of Amendments
confidential commercial information, FR 54197) a final rule on September 14,
2006, relating to the treatment of This document makes amendments to
CBP will apply the DHS FOIA and the scope section of part 103 (19 CFR
Privacy Act regulations for purposes of confidential commercial information.
See also interim final rule issued on 103.0), sections 103.1 through 103.3 of
administering the FOIA. This final rule subpart A (19 CFR 103.1–103.3), and by
removes outdated regulations, aligns August 11, 2003 at 68 FR 47453. No
other provisions of the CBP FOIA removing sections 103.4 through 103.13
CBP’s regulatory procedures for of subpart A of 19 CFR part 103 (19 CFR
regulations have been amended since
processing FOIA requests with those of 103.4–103.13). Specifically, this
CBP became a part of DHS.
DHS, thereby creating a consistent document amends section 103.0 by
For additional resources, please see
standard among the DHS components, removing references to the FOIA subject
the CBP FOIA page online at http://
and brings CBP within compliance of matters that are no longer discussed
www.cbp.gov/site-policy-notices/foia.
the FOIA guidelines developed by OMB. within Part 103 because they are now
DATES: Effective: November 17, 2015. Need for Correction addressed in the DHS regulations and
FOR FURTHER INFORMATION CONTACT: Due to the promulgation of DHS FOIA amends section 103.1 to account for
Shari Suzuki, Chief, FOIA Appeals, regulations which provide that the DHS CBP’s move to virtual reading rooms (19
Policy & Litigation Branch, Office of FOIA regulations generally apply to all CFR 103.1). In addition, section 103.2 is
International Trade, (202) 325–0121. DHS components except to the extent revised to explain in paragraph (a) that
SUPPLEMENTARY INFORMATION: that a DHS component adopts separate CBP processes FOIA requests pursuant
guidance, most of the CBP FOIA to the DHS FOIA regulations set forth in
Background regulations have been functionally 6 CFR part 5, subpart A (19 CFR
The Freedom of Information Act superseded. The current CBP regulation, 103.2(a)), unless CBP provides a
(‘‘FOIA’’) (5 U.S.C. 552) provides for the section 103.0, directs the public to the particular exception. Paragraph (b) of
disclosure of agency records and Treasury FOIA regulations found at 31 section 103.2 sets forth the exception
information to the public unless the CFR part 1 and instructs that for any that CBP will not apply the DHS FOIA
records and information are exempted inconsistency between 19 CFR part 103 regulation pertaining to the treatment of
from disclosure. U.S. Customs and and the Treasury FOIA regulations, the business information contained in 6
Border Protection (‘‘CBP’’) regulations Treasury FOIA regulations control. The CFR 5.8 (19 CFR 103.2(b)). Rather, as
specifically covering the production and existing CBP regulations are now explained below, CBP will continue to
disclosure of records under the FOIA obsolete and retaining inconsistent apply its current regulation in section
are set forth in part 103 of title 19 of the regulations causes confusion for those 103.35 (19 CFR 103.35) which governs
Code of Federal Regulations (19 CFR seeking to file a FOIA request. As a the treatment of confidential
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part 103) and consist of sections 103.1– result, CBP is amending sections 103.0 commercial information. A
103.13 (19 CFR 103.1–103.13). through 103.3, removing and reserving corresponding amendment is made to
Prior to March 1, 2003, the United sections 103.4 through 103.13 of section 103.35 (19 CFR 103.35). Lastly,
States Customs Service (‘‘Customs’’) was Subpart A of Part 103, and directing section 103.3 is revised to explain how
a component of the Department of the readers to the DHS FOIA regulations. CBP processes Privacy Act requests
Treasury. On November 25, 2002, the This will align CBP’s regulatory pursuant to the DHS Privacy Act

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Federal Register / Vol. 80, No. 221 / Tuesday, November 17, 2015 / Rules and Regulations 71691

regulations set forth in 6 CFR part 5, apply 19 CFR 103.35 in order to process these regulations to reflect the
subpart B (6 CFR 5). confidential information under the nomenclature changes effected by the
FOIA. This action is fully consistent reorganization of the U.S. Customs
Exceptions to DHS Regulations
with DHS’s recent proposed rule on Service under DHS in 2003 and to
On September 14, 2006, CBP FOIA, which explicitly proposed to remove the word consignee from section
published a final rule in the Federal incorporate the provisions of 19 CFR 175.21 to be consistent with the
Register (71 FR 54197) governing the 103.35 into DHS’s title 6 FOIA statutory amendments to 19 U.S.C.
disclosure procedures that CBP follows regulation. See 80 FR at 45103. 1484(a)(2)(B).
when commercial information is
provided to CBP by a business Other Changes Executive Orders 13563 and 12866
submitter. The rule finalized an interim CBP has also determined that Executive Orders 13563 and 12866
rule in section 103.35 (19 CFR 103.35) paragraph (b) of section 103.13 (19 CFR direct agencies to assess the costs and
to subpart C, published in the Federal 103.13(b)), which provides that benefits of available regulatory
Register on August 11, 2003 (68 FR identifying data will not be eliminated alternatives and, if regulation is
47453), in order to clearly set forth from petitions by domestic interested necessary, to select regulatory
CBP’s policy governing the disclosure of parties, is more appropriately placed approaches that maximize net benefits
confidential commercial information within 19 CFR part 175. Part 175 sets (including potential economic,
that is provided to CBP by a business forth the regulations for petitions by environmental, public health and safety
submitter. domestic interested parties. As existing effects, distributive impacts, and
As opposed to section 103.35 in title 19 CFR 103.13(b) is specific to petitions equity). Executive Order 13563
19 CFR, the DHS FOIA regulation by domestic interested parties, this emphasizes the importance of
controlling the treatment of business relocation will provide the public quantifying both costs and benefits, of
information in 6 CFR 5.8 contains an involved with such petitions with all reducing costs, of harmonizing rules,
affirmative requirement that a business relevant regulations in one location. and of promoting flexibility. This rule is
submitter must identify information as Accordingly, this document moves the not a ‘‘significant regulatory action,’’
privileged or confidential in order to be provision currently found in paragraph under section 3(f) of Executive Order
withheld from disclosure. In this regard, (b) of section 103.13 (19 CFR 103.13(b)) 12866. Accordingly, the Office of
6 CFR 5.8 specifically states that a to the end of section 175.21(b) (19 CFR Management and Budget has not
submitter of business information must 175.21(b)). reviewed this regulation.
use good-faith efforts to designate, by This document also amends sections Following the creation of DHS in
appropriate markings, either at the time 103.31a, 103.32, 103.34, 161.15, and 2003, DHS promulgated the Freedom of
of submission or at a reasonable time 175.21 (19 CFR 103.31a, 103.32, 103.34, Information Act and Privacy Act
thereafter, any portions of their 161.15, and 175.21) in order to remove Procedures interim final rule set forth in
submission that they consider to be references in these sections to the CBP 6 CFR part 5. For consistent and
exempt from disclosure under the FOIA. FOIA regulations that are being removed appropriate administration, CBP
Section 5.8 of title 6 CFR also states and to update the references generally began applying the DHS FOIA
that, before business information is accordingly. In sections 103.31a and procedures after their publication.
released, notice will be provided to 103.32 (19 CFR 103.31a and 103.32), However, the CBP FOIA procedures
submitters whenever a FOIA request is references to CBP FOIA regulations are remained in the Code of Federal
made that seeks the business removed and replaced with references Regulations, sometimes causing
information that has been designated in to the DHS FOIA provisions at 6 CFR confusion about their use among the
good faith as confidential or when the 5.3. In addition, the introductory public and agency personnel. Unlike the
agency has a reason to believe that the paragraph to section 103.31a (19 CFR CBP FOIA regulations outlined in 19
information may be protected from 103.31a) is revised to replace a reference CFR 103 subpart A, the DHS FOIA
disclosure. When notice is provided by to section 103.12(d), which is removed procedures are up-to-date and conform
the agency, the submitter is required to by this document, with text from to FOIA guidelines established by OMB.
submit a detailed written statement current section 103.12(d) (19 CFR This rule will serve to remove obsolete
specifying the grounds for withholding 103.12) providing that trade secrets and provisions of CBP’s FOIA regulations
any portion of the information and show commercial or financial information are and will establish uniform FOIA
why the information is a trade secret or per se exempt from disclosure. administration procedures among DHS
commercial or financial information In sections 103.34, 161.15, and 175.21 and its component, CBP, in the Code of
that is privileged or confidential. (19 CFR 104.34, 161.15, and 175.21), the Federal Regulations. This rule will not
CBP has determined that 19 CFR reference to CBP FOIA regulations are affect CBP’s current application of FOIA
103.35 remains an effective regulation. replaced with references to the FOIA procedures as CBP already adheres to
In addition, CBP believes that this statute at 5 U.S.C. 552. In addition, DHS FOIA regulations. Instead, the rule
regulation should be retained in order to section 161.15 (19 CFR 161.15) is will provide greater clarity of CBP’s
assure the public that CBP’s established revised to replace a reference to section application of FOIA procedures.
policy governing the treatment of 103.12(g)(4) (19 CFR 103.12), which is Therefore, this rule will not have an
confidential commercial information removed by this document, with a economic impact on CBP or the public.
subject to FOIA requests will not change reference to 5 U.S.C. 552(b)(7)(D) and
as a result of the amendments in this text from current section 103.12(g)(4). Inapplicability of Notice and Delayed
document. See 68 FR 47753 (August 11, Section 161.15 (19 CFR 161.15) is also Effective Date
2003). For example, CBP will not being revised to replace a reference to Pursuant to 5 U.S.C. 553(b)(B), CBP
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require business submitters to designate 103.12(i) (19 CFR 103.12), which is has determined that it would be
information as protected from removed by this document, with text unnecessary and contrary to the public
disclosure as privileged or confidential from current section 103.12(i) which interest to delay publication of this rule
in order for CBP to withhold the tracks the language found in 5 U.S.C. in final form pending an opportunity for
information in response to a FOIA 552(a)(7)(C)(2). Lastly, this document public comment because the existing
request. Therefore, CBP will continue to makes non-substantive amendments to regulations are obsolete and maintaining

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71692 Federal Register / Vol. 80, No. 221 / Tuesday, November 17, 2015 / Rules and Regulations

inconsistent regulations causes List of Subjects access to records found at 6 CFR part 5.
confusion for the public. In addition, For purposes of this part, the CBP Office
19 CFR Part 103
pursuant to 5 U.S.C. 553(d)(3), CBP has of the Chief Counsel is considered to be
determined that there is good cause for Administrative practice and a part of CBP.
this final rule to become effective procedure, Computer technology,
immediately upon publication. CBP Confidential business information, Subpart A—Production of Documents/
Customs duties and inspection, Disclosure of Information Under the
currently follows the DHS FOIA
Freedom of information, Privacy, FOIA
regulations as a matter of law and
Reporting and recordkeeping
policy. The amendments contained in
requirements. ■ 3. Section 103.1 is revised to read as
this document merely align CBP’s
follows:
regulatory procedures for processing 19 CFR Part 161
FOIA requests and appeals with DHS Customs duties and inspection, § 103.1 Public Reading Room.
procedures and bring CBP in Exports, Imports, Law enforcement. CBP maintains a virtual public
compliance with OMB’s guidelines reading room at http://foiarr.cbp.gov/
established in the Uniform Freedom of 19 CFR Part 175 where the material required to be made
Information Act Fee Schedule and Administrative practice and available under 5 U.S.C. 552(a) and this
Guidelines publication. procedure, Customs duties and part may be inspected and copied.
inspection, Reporting and ■ 4. Section 103.2 is revised to read as
Regulatory Flexibility Act recordkeeping requirements. follows:
The Regulatory Flexibility Act (5 Amendments to the CBP Regulations § 103.2 Department of Homeland Security
U.S.C. 601 et. seq.), as amended by the For the reasons discussed in the Freedom of Information Act Procedures.
Small Business Regulatory Enforcement preamble, parts 103, 161, and 175 of (a) Department of Homeland Security
and Fairness Act of 1996, requires title 19 of the Code of Federal FOIA Regulations. In order to process
agencies to assess the impact of Regulations (19 CFR parts 103, 161, and requests for documents/information and
regulations on small entities. A small 175) are amended as set forth below. appeals under the Freedom of
entity may be a small business (defined Information Act (FOIA), as amended (5
as any independently owned and PART 103—AVAILABILITY OF U.S.C. 552), except as provided in
operated business not dominant in its INFORMATION paragraph (b) of this section, CBP
field that qualifies as a small business applies the Department of Homeland
■ 1. The general authority citation for Security FOIA regulations in 6 CFR part
per the Small Business Act); a small not-
part 103 continues to read as follows: 5, subpart A.
for-profit organization; or a small
governmental jurisdiction (locality with Authority: 5 U.S.C. 301; 552, 552a; 19 (b) Exception. Notwithstanding
fewer than 50,000 people). The U.S.C. 66, 1624; 31 U.S.C. 9701. section 5.8 of Title 6, CBP retains its
Regulatory Flexibility Act applies only * * * * * own policy on the treatment of
to rules subject to notice and comment ■ 2. Section 103.0 is revised to read as confidential commercial information
rulemaking requirements under the follows: provided in § 103.35.
Administrative Procedure Act (APA) or ■ 5. Section 103.3 is revised to read as
§ 103.0 Scope. follows:
any other law (5 U.S.C. 553(a)(2)).
This part governs the production/
Because this rule is not subject to such § 103.3 Department of Homeland Security
disclosure of agency-maintained
notice and comment rulemaking documents/information requested Privacy Act Procedures.
requirements, the provisions of the pursuant to the Freedom of Information Department of Homeland Security
Regulatory Flexibility Act do not apply. Act (FOIA), as amended (5 U.S.C. 552), Privacy Act Regulations. In order to
However, as discussed above in the the Privacy Act of 1974, as amended (5 process access requests for documents/
‘‘Executive Orders 13563 and 12866’’ U.S.C. 552a), and/or under other information and appeals under the
section, this rule will not have an statutory or regulatory provisions and/or Privacy Act of 1974, as amended (5
economic impact on the public because as requested through administrative U.S.C. 552a), CBP applies the
it merely clarifies CBP’s current and/or legal processes. In this respect, Department of Homeland Security
adherence to DHS FOIA procedures this part contains regulations on Privacy Act regulations in 6 CFR part 5,
rather than existing, outdated CBP FOIA production or disclosure in federal, subpart B.
regulations. state, local, and foreign proceedings and §§ 103.4 through 103.13 [Removed and
includes specific information pertaining Reserved]
Signing Authority
to the procedures to be followed when
producing or disclosing documents or ■ 6. Remove and reserve §§ 103.4
This document is being issued in through 103.13.
accordance with 19 CFR 0.2(a), which information under various
■ 7. In § 103.31a, revise the introductory
provides that the authority of the circumstances. In addition, this part
text to read as follows:
Secretary of the Treasury with respect to contains regulations on other
CBP regulations that are not related to information subject to restricted access. § 103.31a Advance electronic information
As information obtained by CBP is for air, truck, and rail cargo; Importer
customs revenue functions was Security Filing Information for vessel cargo.
derived from myriad sources, persons
transferred to the Secretary of Homeland
seeking information should consult with The following types of advance
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Security pursuant to section 403(1) of
the appropriate field officer before electronic information are per se exempt
the Homeland Security Act of 2002. invoking the formal procedures set forth from disclosure as either trade secrets or
Accordingly, this final rule to amend in this part. Except for 19 CFR 103.35, privileged or confidential commercial or
such regulations may be signed by the the regulations in this part supplement financial information, unless CBP
Secretary of Homeland Security (or his the regulations of the Department of receives a specific request for such
delegate). Homeland Security regarding public records pursuant to 6 CFR 5.3, and the

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Document Created: 2015-12-14 14:00:19
Document Modified: 2015-12-14 14:00:19

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective: November 17, 2015.
Contact		Shari Suzuki, Chief, FOIA Appeals, Policy & Litigation Branch, Office of International Trade, (202) 325- 0121.
FR Citation		80 FR 71690
RIN Number		1651-AB05
CFR Citation		19 CFR 103 19 CFR 161 19 CFR 175
CFR Associated		Administrative Practice and Procedure; Computer Technology; Confidential Business Information; Customs Duties and Inspection; Freedom of Information; Privacy; Reporting and Recordkeeping Requirements; Exports; Imports and Law Enforcement

80 FR 71690 - Freedom of Information Act Procedures

DEPARTMENT OF HOMELAND SECURITYU.S. Customs and Border Protection

Federal Register Volume 80, Issue 221 (November 17, 2015)

DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection