[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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  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.

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

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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