[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Rules and Regulations]
[Pages 92549-92550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30457]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / 
Rules and Regulations

[[Page 92549]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2016-0091]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security DHS/U.S. Customs and Border Protection (CBP)-023 
Border Patrol Enforcement Records (BPER) System of Records

AGENCY: Department of Homeland Security, Privacy Office.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of a newly established system 
of records titled, ``Department of Homeland Security U.S. Customs and 
Border Protection (DHS/CBP)-023 Border Patrol Enforcement Records 
(BPER) System of Records'' from certain provisions of the Privacy Act. 
Specifically, the Department exempts portions of the ``DHS/CBP-023 BPER 
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 December 20, 2016.

FOR FURTHER INFORMATION CONTACT: For general questions, please contact: 
Debra Danisek (202-344-1191), CBP Privacy Officer, Privacy and 
Diversity Office, 1300 Pennsylvania Avenue NW., Washington, DC 20229. 
For privacy issues please contact: Jonathan R. Cantor (202-343-1717), 
Acting 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, (81 FR 72551, October 20, 2016) 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 issued the ``DHS/CBP-023 Border Patrol Enforcement 
(BPER) Records System of Records'' in the Federal Register at 81 FR 
72601 on October 20, 2016, to provide notice to the public that DHS/CBP 
will collect and maintain enforcement records to secure the U.S. border 
between Ports of Entry (POE), furthering its enforcement and 
immigration mission. DHS previously maintained these records under the 
DHS/ICE-011 Criminal Arrest Records and Immigration Enforcement Records 
(CARIER) (81 FR 72080, October 19, 2016) and the DHS/USVISIT-004 DHS 
Automated Biometric Identification System (IDENT) (72 FR 31080, June 5, 
2007) System of Records Notices. DHS/CBP issued this new system of 
records to claim ownership of records created as a result of CBP 
interactions between POE.
    DHS/CBP invited comments on both the Notice of Proposed Rulemaking 
(NPRM) and System of Records Notice (SORN).

II. Public Comments

    DHS/CBP received one positive comment on the NPRM and no comments 
on the SORN for the DHS/CBP-023 BPER System of Records. After 
consideration of the public comment, DHS 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. Add paragraph 76 to appendix C to part 5 to read as follows::

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

* * * * *
    76. 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 BPER System of 
Records is a repository of information held by DHS/CBP 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 BPER 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). 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 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.
    (b) 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, to 
tamper with witnesses or

[[Page 92550]]

evidence, 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.
    (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 activity.
    (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 the investigation, thereby interfering with 
that investigation and related law enforcement activities.
    (e) 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.
    (f) From subsections (e)(4)(G) and (e)(4)(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 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, and potential witnesses, and 
confidential informants.
    (g) 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.
    (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)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.

    Dated: December 13, 2016.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2016-30457 Filed 12-19-16; 8:45 am]
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