[Federal Register Volume 83, Number 247 (Thursday, December 27, 2018)]
[Rules and Regulations]
[Pages 66557-66559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27944]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 83, No. 247 / Thursday, December 27, 2018 /
Rules and Regulations
[[Page 66557]]
DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 5
[Docket No. DHS-2018-0064]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security (DHS)/U.S. Customs and Border Protection (CBP)-024
CBP Intelligence Records System (CIRS) System of Records
AGENCY: Department of Homeland Security.
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, ``DHS/CBP-024 CBP Intelligence Records System (CIRS)
System of Records'' from certain provisions of the Privacy Act.
Specifically, the Department exempts portions of the ``DHS/CBP-024 CBP
Intelligence Records System (CIRS) 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 27, 2018.
ADDRESSES: You may submit comments, identified by docket number DHS-
2018-0064, at:
Federal eRulemaking Portal: http://www.regulations.gov.
Please follow the instructions for submitting comments.
Mail and hand delivery on commercial delivery: U.S.
Customs and Border Protection, Privacy and Diversity Office, ATTN:
Privacy Officer--Debra L. Danisek, 1300 Pennsylvania Ave. NW,
Washington, DC 20229.
Instructions: All submissions received must include the agency name
and docket number for this rule. 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 privacy issues please contact:
Chief Privacy Officer, Privacy Office Philip S. Kaplan at 202-343-1717.
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 (82 FR 44124, September 21, 2017) proposing to exempt
portions of this 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-024 CBP Intelligence Records
System (CIRS) System of Records'' in the Federal Register at 82 FR
44198, on September 21, 2017, to provide notice to the public that DHS/
CBP collects and maintains records generated, received, or collected by
the CBP Office of Intelligence, or other offices within CBP that
support the law enforcement intelligence mission, that is analyzed and
disseminated to CBP executive management and operational units for law
enforcement, intelligence, counterterrorism, and other homeland
security purposes. CIRS contains data from a variety of sources within
and outside of CBP to support law enforcement activities and
investigations of violations of U.S. laws, administration of
immigration laws and other laws administered or enforced by CBP, and
production of CBP law enforcement intelligence products. CIRS is the
exclusive CBP SORN for finished intelligence products and any raw
intelligence information, public source information, or other
information collected by CBP for an intelligence purpose that is not
covered by an existing DHS SORN. CIRS records were previously covered
by DHS/CBP-006--Automated Targeting System SORN (77 FR 30297, May 22,
2012) and DHS/CBP-017--Analytical Framework for Intelligence SORN (77
FR 13813, June 7, 2012).
DHS/CBP invited comments on both the Notice of Proposed Rulemaking
(NPRM) and System of Records Notice (SORN).
II. Public Comments
DHS received thirty-two comments on the CBP CIRS NPRM and four on
the CBP CIRS SORN. Of the thirty-six total comments, thirteen were
erroneously filed relating to the republication of the DHS Alien File,
Index, and National File Tracking system (A-File). DHS will not respond
to comments regarding the publication of the A-File SORN in this Final
Rule. Of the remaining substantive comments for CIRS: (1) Seventeen
related to transparency; (2) two related to the collection of
information not specifically relevant to an investigation; and (3) four
were duplicates of two formal briefs submitted for both the SORN and
the NPRM. The following is an analysis of the substantive comments and
questions submitted by the public.
Comment: DHS should not hide what it is collecting by exempting the
information from Privacy Act protections.
Response: DHS published the CIRS SORN in compliance with the
notification requirements of the Privacy Act, subsection 552a(e)(4),
and thus, is being transparent of its collection activities. The CIRS
SORN describes the information that DHS collects and retains in
association with this system of records. DHS does not seek to hide this
collection or exempt it from the notification requirements of the
Privacy Act; rather, it seeks exemptions to ensure that records
critical to law enforcement and intelligence activities need not be
shared in the event that such sharing might jeopardize the
investigation or otherwise compromise DHS operations.
Comment: DHS's collection of records in CIRS is overly broad
because, as stated in the NPRM, DHS may be collecting information that
``may not be strictly relevant or necessary to a specific
investigation.''
Response: In order to conduct a complete investigation, it is
necessary for DHS/CBP to collect and review large amounts of data in
order to identify and understand relationships between individuals,
entities, threats and events, and to monitor patterns of activity over
extended periods of time that may be indicative of criminal, terrorist,
or other threat.
Comment: The SORN contains materially false claims concerning the
status of the rulemaking for Privacy Act exemptions that are directly
[[Page 66558]]
contradicted by the Notice of Proposed Rulemaking for those exemptions.
Response: The Secretary of Homeland Security issued a proper NPRM,
pursuant to the Privacy Act, the Federal Register, and Office of
Management and Budget (OMB) requirements, received comments from the
public as part of the notice and comment procedures of the
Administrative Procedure Act, and is issuing this final rule in
conformance with those requirements.
Comment: Proposed routine uses would circumvent Privacy Act
safeguards and contravene legislative intent.
Response: DHS's collection of records in CIRS is intended to permit
DHS/CBP to review large amounts of data in order to identify and
understand relationships between individuals, entities, threats and
events, and to monitor patterns of activity over extended periods of
time that may be indicative of criminal, terrorist, or other threat.
The SORN is consistent with the legislative intent of the Privacy Act
to ensure fair practices, collection, and uses of individuals' personal
information. The routine uses, as written in the CIRS SORN, and
disclosures of such records, are compatible with the purpose for which
they are originally collected and used by DHS/CBP.
After consideration and review of the public comments, DHS has
determined that the exemptions should remain in place, 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: 6 U.S.C. 101 et seq.; Pub. L. 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.
0
2. Add paragraph 79 to appendix C to part 5 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
79. The DHS/CBP-024 CBP Intelligence Records System (CIRS)
System of Records consists of electronic and paper records and will
be used by DHS and its components. The CIRS 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 CIRS 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) and (4); (d); (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)(1) and (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), (e)(4)(H), (e)(4)(I), and (f). When this system
receives a record from another system exempted in that source system
under 5 U.S.C. 552a(k)(1), (k)(2), or (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 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. Information on a
completed investigation may be withheld and exempt from disclosure
if the fact that an investigation occurred remains sensitive after
completion.
(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 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 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), (e)(4)(H), and (e)(4)(I) (Agency
Requirements) and (f) (Agency Rules) because portions of this system
are exempt from the individual access and amendment 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, amend, 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) 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
[[Page 66559]]
complete records, or its failure to otherwise comply with an
individual's right to access or amend records.
Philip S. Kaplan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2018-27944 Filed 12-26-18; 8:45 am]
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