[Federal Register Volume 81, Number 203 (Thursday, October 20, 2016)]
[Proposed Rules]
[Pages 72551-72552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25209]

Proposed Rules
                                                Federal Register

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.


Federal Register / Vol. 81, No. 203 / Thursday, October 20, 2016 / 
Proposed Rules

[[Page 72551]]


Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2016-0070]

Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security, United States Customs and Border Protection DHS/CBP-
023 Border Patrol Enforcement Records, System of Records

AGENCY: Privacy Office, Department of Homeland Security.

ACTION:  Notice of proposed rulemaking.


SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security (DHS)/U.S. 
Customs and Border Protection (CBP)-023 Border Patrol Enforcement 
Records (BPER) System of Records'' and this proposed rulemaking. In 
this proposed rulemaking, the Department proposes to exempt portions of 
the system of records from one or more provisions of the Privacy Act 
because of criminal, civil, and administrative enforcement 

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

ADDRESSES:  You may submit comments, identified by docket number DHS-
2016-0070, 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: Jonathan R. Cantor, Acting 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 notice. 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, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Debra L. Danisek, (202) 344-1610, Acting Privacy Officer, U.S. Customs 
and Border Protection, Washington, DC 20229. For privacy questions, 
please contact: Jonathan R. Cantor, (202) 343-1717, Acting Chief 
Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528.


I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security/U.S. Customs and Border Protection 
proposes to establish a new DHS system of records titled, ``DHS/CBP-023 
Border Patrol Enforcement Records (BPER) System of Records.'' 
Concurrent with this newly issued system of records, DHS/CBP is 
proposing to exempt the BPER System of Records from certain provisions 
of the Privacy Act.
    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which Federal Government 
agencies collect, maintain, use, and disseminate personally 
identifiable information. 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 the 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 permits 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 
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for BPER System of Records. Some information in BPER System of 
Records relates to official DHS national security, law enforcement, 
immigration, and intelligence activities. These exemptions are needed 
to protect information relating to DHS activities from disclosure to 
subjects or others related to these activities. Specifically, the 
exemptions are required to preclude subjects of these activities from 
frustrating these processes; to avoid disclosure of activity 
techniques; to protect the identities and physical safety of 
confidential informants and law enforcement personnel; to ensure DHS's 
ability to obtain information from third parties and other sources; to 
protect the privacy of third parties; and to safeguard classified 
information. Disclosure of information to the subject of the inquiry 
could also permit the subject to avoid detection or apprehension.
    The exemptions proposed here are exercised by a large number of 
federal law enforcement agencies to support law enforcement and 
national security missions. 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 
    A notice of system of records for BPER System of Records is also 
published in this issue of the Federal Register.

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:


1. The authority citation for part 5 continues to read as follows:

    Authority:  6 U.S.C. 101 et seq.; Public Law 107-296, 116 Stat. 
2135; 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.
2. Amend appendix C to add paragraph 74 to read as follows:

[[Page 72552]]

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 

* * * * *
    74. The DHS/CBP-023 Border Patrol Enforcement Records (BPER) 
System of Records consists of electronic and paper records and will 
be used by DHS and its components. The DHS/CBP-023 Border Patrol 
Enforcement Records 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; and national security and intelligence activities. The DHS/
CBP-023 Border Patrol Enforcement Records 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. 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); (e)(1), (e)(2), (e)(3), (e)(4)(G), 
(e)(4)(H), (e)(5), (e)(8); 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); (e)(1), (e)(4)(G), and (e)(4)(H). When 
records received from another system have been exempted in that 
source system under 5 U.S.C. 552a(j)(2), DHS will claim the same 
exemptions for those records that are claimed for the original 
primary systems of records from which they originated, and claims 
any additional exemptions set forth here. 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:
    (a) From subsection (c)(3) and (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 the 
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.
    (b) From subsection (d) (Access and Amendment 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 the 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, to tamper with witnesses or evidence, and to avoid 
detection or apprehension. Amendment of the records could interfere 
with ongoing investigations and law enforcement activities and would 
impose an impossible administrative burden by requiring 
investigations to be continuously reinvestigated. In addition, 
permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to homeland 
    (c) 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 
    (d) 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 an investigation, thereby interfering with 
the related investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information would impede law enforcement in 
that it could compromise investigations by: Revealing the existence 
of an otherwise confidential investigation and thereby provide an 
opportunity for the subject of an investigation to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative efforts; reveal the identity of witnesses in 
investigations, thereby providing an opportunity for the subjects of 
the investigations or others to harass, intimidate, or otherwise 
interfere with the collection of evidence or other information from 
such witnesses; or reveal the identity of confidential informants, 
which would negatively affect the informant's usefulness in any 
ongoing or future investigations and discourage members of the 
public from cooperating as confidential informants in any future 
    (f) From subsections (e)(4)(G) and (H) (Agency Requirements) 
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 establishing 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, and potential witnesses, and 
confidential informants.
    (g) From subsection (e)(5) (Collection of Information) because 
in 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 (e)(5) would 
preclude DHS agents from using their investigative training and 
exercise of good judgment to both conduct and report on 
    (h) 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.
    (i) From subsection (g) to the extent that the system is exempt 
from other specific subsections of the Privacy Act relating to 
individuals' rights to access and amend their records contained in 
the system. Therefore DHS is not required to establish rules or 
procedures pursuant to which individuals may seek a civil remedy for 
the agency's: Refusal to amend a record; refusal to comply with a 
request for access to records; failure to maintain accurate, 
relevant, timely, and complete records; or failure to otherwise 
comply with an individual's right to access or amend records.

    Dated: October 5, 2016.

Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2016-25209 Filed 10-19-16; 8:45 am]