[Federal Register Volume 81, Number 54 (Monday, March 21, 2016)]
[Rules and Regulations]
[Pages 14947-14948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06233]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 81, No. 54 / Monday, March 21, 2016 / Rules
and Regulations
[[Page 14947]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2016-0016]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/U.S. Customs and Border Protection-007 Border
Crossing Information System of Records
AGENCY: Privacy Office, Department of Homeland Security.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is issuing a final
rule to extend the exemptions from certain provisions of the Privacy
Act to the updated and reissued system of records titled, ``DHS/U.S.
Customs and Border Protection (CBP)-007 Border Crossing Information
System of Records.'' Specifically, the Department exempts portions of
the ``DHS/CBP-007 Border Crossing Information System of Records'' from
one or more provisions of the Privacy Act because of criminal, civil,
and administrative enforcement requirements.
DATES: This final rule is effective March 21, 2016.
FOR FURTHER INFORMATION CONTACT: For general questions, please contact:
John Connors, (202) 344-1610, Privacy Officer, U.S. Customs and Border
Protection, Privacy and Diversity Office, 1300 Pennsylvania Avenue NW.,
Washington, DC 20229. For privacy questions, please contact: Karen L.
Neuman, (202) 343-1717, Chief Privacy Officer, Privacy Office,
Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The Department of Homeland Security (DHS) U.S. Customs and Border
Protection (CBP) published a notice of proposed rulemaking in the
Federal Register, 80 FR 79487, Dec. 22, 2015, proposing to exempt
portions of the system of records from one or more provisions of the
Privacy Act because of criminal, civil, and administrative enforcement
requirements. DHS reissued the DHS/CBP-007 Border Crossing Information
(BCI) System of Records in the Federal Register on May 11, 2015 (80 FR
26937), to provide notice to the public that DHS/CBP was updating the
categories of records to include the capture of certain biometric
information and Advance Passenger Information System (APIS) records at
the border. This final rule exempts portions of the new categories of
records ingested from APIS that are claimed for APIS records pursuant
to 5 U.S.C. 552a(j)(2) and 5 U.S.C. 552a(k)(2).
II. Public Comments
DHS received no comments on the NPRM and will implement the
rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information, Privacy.
For the reasons stated in the preamble, DHS amends chapter I of
title 6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
0
1. The authority citation for part 5 continues to read as follows:
Authority: Pub. L. 107-296, 116 Stat. 2135; (6 U.S.C. 101 et
seq.); 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
0
2. In appendix C to part 5, revise paragraph 46 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
46. The DHS/CBP-007 Border Crossing Information System of Records
consists of electronic and paper records and will be used by DHS and
its Components. The DHS/CBP-007 Border Crossing Information System of
Records is a repository of information held by DHS in connection with
its several and varied missions and functions including, but not
limited to the enforcement of civil and criminal laws; investigations,
inquiries, and proceedings thereunder; and law enforcement, border
security, and intelligence activities. The DHS/CBP-007 Border Crossing
Information System of Records contains information that is collected
by, on behalf of, in support of, or in cooperation with DHS and its
Components and may contain personally identifiable information
collected by other Federal, State, local, tribal, foreign, or
international government agencies. At the time of border crossing and
during the process of determining admissibility, CBP collects two types
of data for which it claims different exemptions.
(a) CBP will not assert any exemption to limit an individual from
accessing or amending his or her record with respect to information
maintained in the system that is collected from a person at the time of
crossing and submitted by that person's air, sea, bus, or rail
carriers.
The Privacy Act requires DHS to maintain an accounting of the
disclosures made pursuant to all routine uses. Pursuant to 5 U.S.C.
552a(j)(2), CBP will not disclose the fact that a law enforcement or
intelligence agency has sought particular records because it may affect
ongoing law enforcement activities. The Secretary of Homeland Security
has exempted this system from subsections (c)(3), (e)(8), and (g) of
the Privacy Act of 1974, as amended, as is necessary and appropriate to
protect this information. Further, DHS will claim exemption from
subsection (c)(3) of the Privacy Act of 1974, as amended, pursuant to 5
U.S.C. 552a(k)(2) as is necessary and appropriate to protect this
information. Exemptions from these particular subsections are
justified, on a case-by-case basis to be determined at the time a
request is made, for the following reasons:
(i) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could alert the subject of an
investigation of an actual or potential criminal, civil, or regulatory
violation to the existence of that investigation and reveal
investigative interest on the part of DHS as well as the recipient
agency. Disclosure of the accounting would therefore present a serious
impediment to law enforcement efforts and/or efforts to preserve
national security. Disclosure of the
[[Page 14948]]
accounting would also permit the individual who is the subject of a
record to impede the investigation, to tamper with witnesses or
evidence, and to avoid detection or apprehension, which would undermine
the entire investigative process.
(ii) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS's ability to obtain, serve, and
issue subpoenas, warrants, and other law enforcement mechanisms that
may be filed under seal and could result in disclosure of investigative
techniques, procedures, and evidence.
(iii) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
(b) Additionally, this system contains records or information
recompiled from or created from information contained in other systems
of records that are exempt from certain provisions of the Privacy Act.
For these records or information only, the Secretary of Homeland
Security, pursuant to 5 U.S.C. 552a(j)(2), has exempted this system
from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3),
(c)(4); (d)(1)-(4); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(4)(I), (e)(5) and (e)(8); (f); and (g). Additionally, the Secretary
of Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted
this system from the following provisions of the Privacy Act, 5 U.S.C.
552a(c)(3); (d)(1)-(4); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and
(f). Exemptions from these particular subsections are justified, on a
case-by-case basis to be determined at the time a request is made, for
the following reasons:
(i) From subsection (c)(3) and (c)(4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the
subject of an investigation of an actual or potential criminal, civil,
or regulatory violation to the existence of that investigation and
reveal investigative interest on the part of DHS as well as the
recipient agency. Disclosure of the accounting would therefore present
a serious impediment to law enforcement efforts and/or efforts to
preserve national security. Disclosure of the accounting would also
permit the individual who is the subject of a record to impede the
investigation, to tamper with witnesses or evidence, and to avoid
detection or apprehension, which would undermine the entire
investigative process.
(ii) From subsection (d) (Access to Records) because access to the
6records contained in this system of records could inform the subject
of an investigation of an actual or potential criminal, civil, or
regulatory violation to the existence of that investigation and reveal
investigative interest on the part of DHS or another agency. Access to
the records could permit the individual who is the subject of a record
to impede the investigation, and to avoid detection or apprehension.
Amendment of the records could interfere with ongoing investigations
and law enforcement activities and would impose an unreasonable
administrative burden by requiring investigations to be continually
reinvestigated. In addition, permitting access and amendment to such
information could disclose security-sensitive information that could be
detrimental to homeland security.
(iii) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of federal law, the accuracy of information obtained or
introduced occasionally may be unclear, or the information may not be
strictly relevant or necessary to a specific investigation. In the
interests of effective law enforcement, it is appropriate to retain all
information that may aid in establishing patterns of unlawful activity.
(iv) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from the
subject of an investigation would alert the subject to the nature or
existence of the investigation, thereby interfering with that
investigation and related law enforcement activities.
(v) From subsection (e)(3) (Notice to Subjects) because providing
such detailed information could impede law enforcement by compromising
the existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(vi) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency
Requirements) and (f) (Agency Rules), because portions of this system
are exempt from the individual access provisions of subsection (d) for
the reasons noted above, and therefore DHS is not required to establish
requirements, rules, or procedures with respect to such access.
Providing notice to individuals with respect to existence of records
pertaining to them in the system of records or otherwise setting up
procedures pursuant to which individuals may access and view records
pertaining to themselves in the system would undermine investigative
efforts and reveal the identities of witnesses, potential witnesses,
and confidential informants.
(vii) From subsection (e)(5) (Collection of Information) because
with the collection of information for law enforcement purposes, it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with subsection (e)(5) would
preclude DHS agents from using their investigative training and
exercise of good judgment to both conduct and report on investigations.
(viii) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS's ability to obtain, serve, and
issue subpoenas, warrants, and other law enforcement mechanisms that
may be filed under seal and could result in disclosure of investigative
techniques, procedures, and evidence.
(ix) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
* * * * *
Dated: March 2, 2016.
Karen L. Neuman,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2016-06233 Filed 3-18-16; 8:45 am]
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