[Federal Register Volume 80, Number 245 (Tuesday, December 22, 2015)]
[Proposed Rules]
[Pages 79487-79490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31898]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 80, No. 245 / Tuesday, December 22, 2015 / 
Proposed Rules  

[[Page 79487]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2015-0075]


Privacy Act of 1974; Implementation of Exemptions; Department of 
Homeland Security, U.S. Customs and Border Protection--DHS/CBP-007 
Border Crossing Information, System of Records

AGENCY: Department of Homeland Security, Privacy Office.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving notice of 
proposed rulemaking pursuant to the Privacy Act of 1974 in connection 
with a current system of records titled ``Department of Homeland 
Security/U.S. Customs and Border Protection-007 Border Crossing 
Information (BCI) System of Records.'' The exemptions for the system of 
records notice published May 28, 2013, continue to apply for the 
updated system of records for those categories of records listed in the 
previous System of Records Notice. This document proposes to exempt 
portions of certain new categories of records ingested from the Advance 
Passenger Information System (APIS) claimed for those records in that 
system pursuant to the United States Code.

DATES: Comments must be received on or before January 21, 2016.

ADDRESSES: You may submit comments, identified by docket number DHS-
2015-0075 by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-343-4010.
     Mail: Karen L. Neuman, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, please visit http://www.regulations.gov.

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

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS), U.S. Customs and Border 
Protection (CBP) is giving notice of a proposed rulemaking that DHS/CBP 
intends to update its regulations to exempt portions of a system of 
records from certain provisions of the Privacy Act. Specifically, the 
Department proposes to exempt portions of the ``DHS/CBP-007 Border 
Crossing Information System of Records'' from one of more provisions of 
the Privacy Act because of criminal, civil, and administrative 
enforcement requirements. DHS reissued the current 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 is updating the categories of records to include the capture of 
certain biometric information and Advance Passenger Information System 
(APIS) records at the border.
    CBP's priority mission is to prevent terrorists and terrorist 
weapons from entering the country while facilitating legitimate travel 
and trade. To accomplish this mission, CBP maintains border crossing 
information about all individuals who enter, are admitted or paroled 
into, and (when available), exit from the United States regardless of 
method or conveyance. Border crossing information includes certain 
biographic and biometric information; photographs; certain mandatory or 
voluntary itinerary information provided by air, sea, bus, and rail 
carriers or any other forms of passenger transportation; and the time 
and location of the border crossing. Border crossing information 
resides on the TECS (not an acronym) information technology platform. 
DHS/CBP provided notice to the public about the update and expansion of 
the categories of records as part of DHS's ongoing effort to better 
reflect the categories of records in its collection of information. 
DHS/CBP published this updated system of records notice in the Federal 
Register on May 11, 2015 (80 FR 26937).
    CBP is responsible for collecting and reviewing border crossing 
information from travelers entering and departing the United States as 
part of DHS/CBP's overall border security and enforcement missions. All 
individuals crossing the border are subject to CBP processing upon 
arrival in the United States. Each traveler entering the United States 
is required to establish his or her identity, nationality, and 
admissibility to the satisfaction of a CBP officer during the clearance 
process. To manage this process, CBP creates a record of an 
individual's admission or parole into the United States at a particular 
time and port of entry. CBP also collects information about U.S. 
citizens and certain aliens (in-scope travelers pursuant to 8 CFR 
215.8, ``requirements for biometric identifiers from aliens on 
departure from the United States'') upon departure from the United 
States for law enforcement purposes and to document their border 
crossing.
    DHS is statutorily mandated to create and integrate an automated 
entry and exit system that records the arrival and departure of aliens, 
verifies alien identities, and authenticates alien travel documents 
through the comparison of biometric identifiers (8 U.S.C. 1365(b)). 
Certain aliens may be required to provide biometrics (including digital 
fingerprint scans, palm prints, photographs, facial and iris images, or 
other biometric identifiers) upon arrival in or departure from the 
United States. The biometric data is stored on the Automated Biometric 
Identification System (IDENT) information technology platform. IDENT 
stores and processes biometric data (e.g., digital fingerprints, palm 
prints, photographs, and iris scans) and links biometrics with

[[Page 79488]]

biographic information to establish and verify identities. The IDENT 
information technology platform serves as the biometric repository for 
the Department, and also stores related biographic information.
    Previously DHS established the United States Visitor and Immigrant 
Status Indicator Technology (US-VISIT) Program to manage an automated 
entry and exit system. On March 16, 2013, US-VISIT's entry and exit 
operations (including deployment of a biometric exit system) were 
transferred to CBP through the Consolidated and Further Continuing 
Appropriations Act of 2013 (Pub. L. 113-6, H.R. 933). The Act also 
transferred US-VISIT's overstay analysis function to U.S. Immigration 
and Customs Enforcement (ICE) and US-VISIT's biometric identity 
management services to the Office of Biometric Identity Management 
(OBIM), within the DHS National Protection and Programs Directorate 
(NPPD). CBP assumed biometric entry and exit operations on April 1, 
2013.
    CBP has continued to develop mechanisms to collect biometric 
information from departing aliens since assuming responsibility for US-
VISIT's entry and exit operations. During these operations, CBP 
officers may employ technology (e.g., wireless handheld devices or 
standalone kiosk) to collect biographic and biometric information from 
certain aliens determined to be in-scope pursuant to 8 CFR 215.8 
``Requirements for biometric identifiers from aliens on departure from 
the United States'' prior to exiting the United States. Biometrics are 
checked against the IDENT system's watchlist of known or suspected 
terrorists (KST), criminals, and immigration violators to help 
determine if a person is using an alias or attempting to use fraudulent 
identification. Biographic and biometric data is encrypted when it is 
collected and the data is transmitted in an encrypted format to the 
IDENT system. The data is automatically deleted from the mobile device 
after the transmission is complete. The handheld mobile devices 
incorporate strict physical and procedural controls, such as Federal 
Information Processing Standard (FIPS)-compliant data encryption; 
residual information removal; and required authorization for users to 
sign-in using approved user account names and passwords.
    Collection of additional biometric information from individuals 
crossing the border (such as information regarding scars, marks, 
tattoos, and palm prints) aids biometric sharing between the Department 
of Justice (DOJ) Integrated Automated Fingerprint Identification System 
(IAFIS)/Next Generation Identification (NGI) and the IDENT system. The 
end result is enhanced access to (and in some cases acquisition of) 
IAFIS/NGI information by the IDENT system and its users. DHS, DOJ/FBI, 
and the Department of State (DOS)/Bureau of Consular Services entered 
into a Memorandum of Understanding (MOU) for Improved Information 
Sharing Services in 2008. The MOUs established the framework for 
sharing information in accordance with an agreed-upon technical 
solution for expanded IDENT/IAFIS/NGI interoperability, which provides 
access to additional data for a greater number of authorized users.
    CBP collects border crossing information stored in this system of 
records through a number of sources, for example: (1) Travel documents 
(e.g., a foreign passport) presented by an individual at a CBP port of 
entry when he or she provided no advance notice of the border crossing 
to CBP; (2) carriers that submit information in advance of travel 
through APIS; (3) information stored in the Global Enrollment System 
(GES) (see DHS/CBP-002 Global Enrollment System (GES) SORN, 78 FR 3441, 
(January 16, 2013)) as part of a trusted or registered traveler 
program; (4) non-federal governmental authorities that issued valid 
travel documents approved by the Secretary of DHS (e.g., an Enhanced 
Driver's License (EDL)); (5) another federal agency that issued a valid 
travel document (e.g., data from a DOS visa, passport including 
passport card, or Border Crossing Card); or (6) the Canada Border 
Services Agency (CBSA) pursuant to the Beyond the Border Entry/Exit 
Program. When a traveler enters, is admitted to, paroled into, or 
departs from the United States, his or her biographical information, 
photograph (when available), and crossing details (time and location) 
is maintained in accordance with the DHS/CBP-007 Border Crossing 
Information SORN.
    DHS/CBP updated the categories of records to provide notice that 
CBP is collecting biometrics such as digital fingerprints, photographs, 
and iris scans from certain non-U.S. citizens at the time of the border 
crossing or in support of their use of Global Entry or another trusted 
traveler program. In addition, CBP updated the categories of records in 
the SORN to provide notice that CBP plans to collect information 
regarding scars, marks, tattoos, and palm prints from individuals at 
the border to aid biometric interoperability between the IAFIS/NGI and 
the IDENT system. Finally, CBP updated the categories of records 
associated with APIS transmissions to better reflect the information 
collected and maintained in the DHS/CBP-007 BCI SORN.
    Consistent with DHS's information sharing mission, information 
stored in the DHS/CBP-007 BCI SORN may be shared with other DHS 
components that have a need to know the information to carry out their 
national security, law enforcement, immigration, intelligence, or other 
homeland security functions.
    The exemptions for the system of records notice published May 28, 
2013 (78 FR 31958) continue to apply for the updated system of records 
for those categories of records listed in the previous System of 
Records Notice. However, this document proposes to exempt portions of 
certain new categories of records ingested from APIS (see DHS/CBP-005 
APIS SORN, 80 FR 13407 (March 13, 2015) claimed for those records in 
that system pursuant to 5 U.S.C. 552a(j)(2) and 5 U.S.C. 552a(k)(2). 
Furthermore, to the extent certain categories of records are ingested 
from other systems, the exemptions applicable to the source systems 
will remain in effect.
    DHS is issuing this Notice of Proposed Rulemaking to exempt 
portions of DHS/CBP-007 Border Crossing Information System of Records 
from certain provisions of the Privacy Act.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which the Federal Government 
collects, maintains, uses, and disseminates individuals' records. The 
Privacy Act applies to information that is maintained in a ``system of 
records.'' A ``system of records'' is a group of any records under the 
control of an agency from which information is retrieved by the name of 
an individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual. In the Privacy Act, 
an individual is defined to encompass U.S. citizens and lawful 
permanent residents. As a matter of policy, DHS extends administrative 
Privacy Act protections to all individuals when systems of records 
maintain information on U.S. citizens, lawful permanent residents, and 
visitors.
    The Privacy Act allows government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.

[[Page 79489]]

    DHS is claiming exemptions from certain requirements of the Privacy 
Act for portions of DHS/CBP-007 Border Crossing Information System of 
Records. Specifically, certain records ingested from the DHS/CBP-005 
Advance Passenger Information System (APIS) SORN into the DHS/CBP-007 
Border Crossing Information System of Records will continue to be 
covered by the exemptions claimed for those records in that system 
pursuant to 5 U.S.C. 552a(j)(2) and 5 U.S.C. 552a(k)(2). Information in 
DHS/CBP-007 Border Crossing Information System of Records relates to 
official DHS national security and law enforcement activities. These 
exemptions are needed to protect information relating to DHS law 
enforcement investigations from disclosure to subjects of 
investigations and others who could interfere with investigatory and 
law enforcement activities. Specifically, the exemptions are required 
to preclude subjects of these activities from frustrating the 
investigative process; to avoid disclosure of investigative techniques; 
protect the identities and physical safety of confidential informants 
and of law enforcement personnel; ensure DHS's and other federal 
agencies' ability to obtain information from third parties and other 
sources; protect the privacy of third parties; and safeguard sensitive 
information. Disclosure of information to the subject of the inquiry 
could also permit the subject to avoid detection or apprehension.
    In appropriate circumstances, when compliance would not appear to 
interfere with or adversely affect the law enforcement purposes of this 
system and the overall law enforcement process, the applicable 
exemptions may be waived on a case by case basis.
    DHS will not assert any exemption 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, if that person, or his or her agent, seeks access or 
amendment of such information. The DHS/CBP-007 Border Crossing 
Information System of Records Notice was published in the Federal 
Register on May 11, 2015.

List of Subjects in 6 CFR Part 5

    Freedom of Information, Privacy.

    For the reasons stated in the preamble, DHS proposes to amend 
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 there under; 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 sections (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 section (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 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 records 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

[[Page 79490]]

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: December 10, 2015.
Karen L. Neuman,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2015-31898 Filed 12-21-15; 8:45 am]
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