[Federal Register Volume 88, Number 62 (Friday, March 31, 2023)]
[Rules and Regulations]
[Pages 19213-19214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06714]



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 Rules and Regulations
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  Federal Register / Vol. 88 , No. 62 / Friday, March 31, 2023 / Rules 
and Regulations  

[[Page 19213]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2022-0042]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security (DHS)/U.S. Customs and Border Protection (CBP)-027 
Customs Broker Management (CBM) System of Records

AGENCY: U.S. Customs and Border Protection, Department of Homeland 
Security.

ACTION: Final rule.

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

SUMMARY: The U.S. Department of Homeland Security (DHS) is issuing a 
final rule to amend its regulations to exempt portions of a newly 
established system of records titled, ``DHS/U.S. Customs and Border 
Protection (CBP)-027 Customs Broker Management (CBM) System of 
Records'' from certain provisions of the Privacy Act. Specifically, the 
Department exempts portions of this 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 March 31, 2023.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Debra Danisek, [email protected], (202) 344-1610, CBP Privacy 
Officer, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue 
NW, Washington, DC 20229. For privacy issues please contact: Mason 
Clutter (202) 343-1717, Chief Privacy Officer, Privacy Office, 
Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION: 

I. Background

    The U.S. Department of Homeland Security (DHS) Customs and Border 
Protection (CBP) published a notice of proposed rulemaking in the 
Federal Register, 87 FR 43749, July 22, 2022, 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 new ``DHS/CBP-027 Customs Broker 
Management (CBM) System of Records'' in the Federal Register at 87 FR 
43880, July 22, 2022, to determine (1) an individual's suitability for 
acquiring a Customs Broker license, whether that individual is 
representing him or herself or affiliated with an association, 
corporation, or partnership; and (2) whether a licensed Customs Broker 
continues to meet the eligibility requirements to maintain that Customs 
Broker license.
    DHS/CBP invited comments on both the notice of proposed rulemaking 
(NPRM) and System of Records Notice (SORN).

II. Public Comments

    DHS received no comments on the NPRM and no comments on the SORN. 
The Department 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; 6 U.S.C. 142; DHS Del. No. 13001, Rev. 01 (June 
2, 2020).
    Subpart A also issued under 5 U.S.C. 552.
    Subpart B also issued under 5 U.S.C. 552a and 552 note.


0
2. In appendix C to part 5, add paragraph ``88'' to read as follows:

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

* * * * *
    88. The DHS/CBP-027 Customs Broker Management System of Records 
consists of electronic and paper records and will be used by DHS and 
its components. DHS/CBP-027 Customs Broker Management 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. DHS/CBP-027 Customs Broker 
Management System of Records maintains information about 
individuals, associations, corporations, or partnerships to 
administer the Customs Broker License Exam, determine suitability 
for providing an individual a Customs Broker license, and determine 
whether a licensed Customs Broker continues to meet the eligibility 
requirements to maintain a Customs Broker license.
    The Secretary of Homeland Security has exempted this system 
pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, 
portions of this system are exempt from 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 has 
exempted this system pursuant to 5 U.S.C. 552a(k)(2) of the Privacy 
Act from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), and (f). 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 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 when 
weighing and evaluating all available information. In

[[Page 19214]]

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 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.
    (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.
* * * * *

Mason C. Clutter,
Acting Chief Privacy Officer, U.S. Department of Homeland Security.
[FR Doc. 2023-06714 Filed 3-30-23; 8:45 am]
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