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 via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29183]



[[Page 71690]]

=======================================================================
-----------------------------------------------------------------------

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.

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

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functionally superseded.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removes outdated regulations, aligns CBP's regulatory procedures for 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