[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]



 ========================================================================
 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. 
 
 ========================================================================
 

  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.

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

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]
 BILLING CODE 9111-14-P