[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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This section of the FEDERAL REGISTER contains regulatory documents
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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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