81 FR 92549 - 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
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary Federal Register Volume 81, Issue 244 (December 20, 2016)
Office of the Secretary
Federal Register Volume 81, Issue 244 (December 20, 2016)
| Page Range | 92549-92550 | |
| FR Document | 2016-30457 |
[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)] [Rules and Regulations] [Pages 92549-92550] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-30457] ======================================================================== 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. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. ======================================================================== 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. ----------------------------------------------------------------------- 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] BILLING CODE 9111-14-P
![92549
Rules and Regulations Federal Register
Vol. 81, No. 244
Tuesday, December 20, 2016
This section of the FEDERAL REGISTER I. Background ■ 2. Add paragraph 76 to appendix C to
contains regulatory documents having general part 5 to read as follows::
The Department of Homeland
applicability and legal effect, most of which
are keyed to and codified in the Code of Security (DHS) U.S. Customs and Appendix C to Part 5—DHS Systems of
Federal Regulations, which is published under Border Protection (CBP) published a Records Exempt From the Privacy Act
50 titles pursuant to 44 U.S.C. 1510. notice of proposed rulemaking in the
Federal Register, (81 FR 72551, October * * * * *
76. The DHS/CBP–023 Border Patrol
The Code of Federal Regulations is sold by 20, 2016) proposing to exempt portions Enforcement Records (BPER) System of
the Superintendent of Documents. Prices of of the system of records from one or Records consists of electronic and paper
new books are listed in the first FEDERAL more provisions of the Privacy Act records and will be used by DHS and its
REGISTER issue of each week. because of criminal, civil, and components. The DHS/CBP–023 BPER
administrative enforcement System of Records is a repository of
requirements. DHS issued the ‘‘DHS/ information held by DHS/CBP in connection
DEPARTMENT OF HOMELAND CBP–023 Border Patrol Enforcement with its several and varied missions and
SECURITY (BPER) Records System of Records’’ in functions, including, but not limited to the
enforcement of civil and criminal laws;
Office of the Secretary the Federal Register at 81 FR 72601 on
investigations, inquiries, and proceedings
October 20, 2016, to provide notice to there under; and national security and
6 CFR Part 5 the public that DHS/CBP will collect intelligence activities. The DHS/CBP–023
and maintain enforcement records to BPER System of Records contains
secure the U.S. border between Ports of information that is collected by, on behalf of,
[Docket No. DHS–2016–0091] Entry (POE), furthering its enforcement in support of, or in cooperation with DHS
and immigration mission. DHS and its components and may contain
Privacy Act of 1974: Implementation of personally identifiable information collected
previously maintained these records
Exemptions; Department of Homeland by other federal, state, local, tribal, foreign,
under the DHS/ICE–011 Criminal Arrest
Security DHS/U.S. Customs and or international government agencies. The
Records and Immigration Enforcement
Border Protection (CBP)–023 Border Secretary of Homeland Security, pursuant to
Records (CARIER) (81 FR 72080, 5 U.S.C. 552a(j)(2), has exempted this system
Patrol Enforcement Records (BPER) October 19, 2016) and the DHS/
System of Records from the following provisions of the Privacy
USVISIT–004 DHS Automated Act: 5 U.S.C. 552a (c)(3), (c)(4); (d); (e)(1),
AGENCY: Department of Homeland Biometric Identification System (IDENT) (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5), (e)(8);
Security, Privacy Office. (72 FR 31080, June 5, 2007) System of and (g). Additionally, the Secretary of
Records Notices. DHS/CBP issued this Homeland Security, pursuant to 5 U.S.C.
ACTION: Final rule. 552a(k)(2), has exempted this system from
new system of records to claim
ownership of records created as a result the following provisions of the Privacy Act:
SUMMARY: The Department of Homeland 5 U.S.C. 552a (c)(3); (d); (e)(1), (e)(4)(G), and
Security is issuing a final rule to amend of CBP interactions between POE. (e)(4)(H). Exemptions from these particular
its regulations to exempt portions of a DHS/CBP invited comments on both subsections are justified, on a case-by-case
newly established system of records the Notice of Proposed Rulemaking basis to be determined at the time a request
titled, ‘‘Department of Homeland (NPRM) and System of Records Notice is made, for the following reasons:
Security U.S. Customs and Border (SORN). (a) From subsection (c)(3) and (4)
Protection (DHS/CBP)–023 Border (Accounting for Disclosures) because release
II. Public Comments of the accounting of disclosures could alert
Patrol Enforcement Records (BPER) DHS/CBP received one positive the subject of an investigation of an actual or
System of Records’’ from certain comment on the NPRM and no potential criminal, civil, or regulatory
provisions of the Privacy Act. comments on the SORN for the DHS/ violation to the existence of that investigation
Specifically, the Department exempts CBP–023 BPER System of Records. After and reveal investigative interest on the part
portions of the ‘‘DHS/CBP–023 BPER consideration of the public comment, of DHS as well as the recipient agency.
System of Records’’ from one or more Disclosure of the accounting would therefore
DHS will implement the rulemaking as present a serious impediment to law
provisions of the Privacy Act because of proposed.
criminal, civil, and administrative enforcement efforts and/or efforts to preserve
List of Subjects in 6 CFR Part 5 national security. Disclosure of the
enforcement requirements. accounting would also permit the individual
DATES: This final rule is effective Freedom of information, Privacy. who is the subject of a record to impede the
December 20, 2016. For the reasons stated in the investigation, to tamper with witnesses or
preamble, DHS amends Chapter I of evidence, and to avoid detection or
FOR FURTHER INFORMATION CONTACT: For
Title 6, Code of Federal Regulations, as apprehension, which would undermine the
general questions, please contact: Debra entire investigative process.
Danisek (202–344–1191), CBP Privacy follows:
(b) From subsection (d) (Access to Records)
Officer, Privacy and Diversity Office, because access to the records contained in
1300 Pennsylvania Avenue NW., PART 5—DISCLOSURE OF RECORDS this system of records could inform the
AND INFORMATION
mstockstill on DSK3G9T082PROD with RULES
Washington, DC 20229. For privacy subject of an investigation of an actual or
issues please contact: Jonathan R. potential criminal, civil, or regulatory
■ 1. The authority citation for Part 5 violation to the existence of that investigation
Cantor (202–343–1717), Acting Chief continues to read as follows:
Privacy Officer, Privacy Office, and reveal investigative interest on the part
Authority: Pub. L. 107–296, 116 Stat. 2135; of DHS or another agency. Access to the
Department of Homeland Security, records could permit the individual who is
(6 U.S.C. 101 et seq.); 5 U.S.C. 301. Subpart
Washington, DC 20528. A also issued under 5 U.S.C. 552. Subpart B the subject of a record to impede the
SUPPLEMENTARY INFORMATION: also issued under 5 U.S.C. 552a. investigation, to tamper with witnesses or
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![92550 Federal Register / Vol. 81, No. 244 / Tuesday, December 20, 2016 / Rules and Regulations
evidence, and to avoid detection or Dated: December 13, 2016. DATES: This final rule is effective
apprehension. Amendment of the records Jonathan R. Cantor, January 19, 2017.
could interfere with ongoing investigations Acting Chief Privacy Officer, Department of FOR FURTHER INFORMATION CONTACT:
and law enforcement activities and would Homeland Security.
impose an unreasonable administrative Mary Rose Conroy, Chief, Program
burden by requiring investigations to be [FR Doc. 2016–30457 Filed 12–19–16; 8:45 am] Development Division, Program Design
continually reinvestigated. In addition, BILLING CODE 9111–14–P Branch, Food and Nutrition Services,
permitting access and amendment to such U.S. Department of Agriculture, 3101
information could disclose security-sensitive Park Center Drive, Room 810,
information that could be detrimental to DEPARTMENT OF AGRICULTURE Alexandria, VA 22302, or by phone at
homeland security. (703) 305–2803, or by email at
(c) From subsection (e)(1) (Relevancy and Food and Nutrition Service Maryrose.conroy@fns.usda.gov.
Necessity of Information) because in the
SUPPLEMENTARY INFORMATION:
course of investigations into potential 7 CFR Parts 251, 271, 272 and 277
violations of federal law, the accuracy of I. Background
information obtained or introduced [FNS–2016–0028] II. Discussion of Comments and the Final
occasionally may be unclear, or the Rule
information may not be strictly relevant or RIN: 0584–AE44 III. Procedural Matters
necessary to a specific investigation. In the
interests of effective law enforcement, it is
Supplemental Nutrition Assistance I. Background
appropriate to retain all information that may Program Promotion This rule implements Section 4018 of
aid in establishing patterns of unlawful AGENCY: Food and Nutrition Service the Agricultural Act of 2014 (Pub L.
activity. 113–79, 2014 Farm Bill). Section 4018
(FNS), USDA.
(d) From subsection (e)(2) (Collection of of the 2014 Farm Bill creates new
Information from Individuals) because ACTION: Final rule.
limitations on the use of Federal funds
requiring that information be collected from
the subject of an investigation would alert the SUMMARY: This final rule implements authorized in the Food and Nutrition
subject to the nature or existence of the Section 4018 of the Agricultural Act of Act of 2008 (FNA) for Supplemental
investigation, thereby interfering with that 2014. Section 4018 created new Nutrition Assistance Program (SNAP)
investigation and related law enforcement limitations on the use of Federal funds promotion and recruitment activities.
activities. authorized in the Food and Nutrition Specifically, Section 4018:
(e) From subsection (e)(3) (Notice to Act of 2008, as amended (FNA), for the • Amends Section 16(a)(4) of the FNA
Subjects) because providing such detailed Supplemental Nutrition Assistance to prohibit Federal reimbursement for
information could impede law enforcement Program (SNAP) promotion and activities that are designed to persuade
by compromising the existence of a an individual to apply for program
outreach activities. Specifically, Section
confidential investigation or reveal the benefits or that promote the program
identity of witnesses or confidential
4018 of the 2014 Farm Bill prohibits the
use of Federal funds appropriated in the through television, radio, or billboard
informants.
(f) From subsections (e)(4)(G) and (e)(4)(H) FNA from being used for: recruitment advertisements.
(Agency Requirements) because portions of activities designed to persuade an • Amends the end of Section 18 of
this system are exempt from the individual individual to apply for SNAP benefits; the FNA to prohibit the use of Federal
access provisions of subsection (d) for the television, radio, or billboard funds authorized to be appropriated
reasons noted above, and therefore DHS is advertisements that are designed to under the FNA from being used for:
not required to establish requirements, rules, promote SNAP benefits and enrollment; (1) Recruitment activities designed to
or procedures with respect to such access. or agreements with foreign governments persuade an individual to apply for
Providing notice to individuals with respect SNAP benefits;
designed to promote SNAP benefits and
to existence of records pertaining to them in (2) Television, radio, or billboard
the system of records or otherwise setting up
enrollment. The prohibition on using
funds appropriated under the FNA for advertisements that are designed to
procedures pursuant to which individuals promote SNAP benefits and enrollment.
may access and view records pertaining to television, radio, or billboard
themselves in the system would undermine advertisements does not apply to This provision does not apply to
investigative efforts and reveal the identities Disaster SNAP. Disaster SNAP; or
of witnesses, and potential witnesses, and Section 4018 also prohibits any entity (3) Any agreements with foreign
confidential informants. that receives funds under the FNA from governments designed to promote SNAP
(g) From subsection (e)(5) (Collection of compensating any person engaged in benefits and enrollment.
Information) because with the collection of outreach or recruitment activities based • Amends the end of Section 18 of
information for law enforcement purposes, it on the number of individuals who apply the FNA to require the Secretary of
is impossible to determine in advance what Agriculture to issue regulations that
information is accurate, relevant, timely, and
to receive SNAP benefits. Lastly,
Section 4018 modifies Section 16(a)(4) prohibit entities that receive funds
complete. Compliance with subsection (e)(5) under the FNA from compensating any
would preclude DHS agents from using their of the FNA to prohibit the Federal
government from paying administrative person engaged in outreach or
investigative training and exercise of good
judgment to both conduct and report on costs associated with recruitment recruitment activities based on the
investigations. activities designed to persuade an number of individuals who apply to
(h) From subsection (e)(8) (Notice on individual to apply for program benefits receive SNAP benefits.
Individuals) because compliance would or that promote the program through II. Discussion of Comments and the
interfere with DHS’s ability to obtain, serve, television, radio, or billboard Final Rule
mstockstill on DSK3G9T082PROD with RULES
and issue subpoenas, warrants, and other law advertisements.
enforcement mechanisms that may be filed General Comments
This final rule also impacts the Food
under seal and could result in disclosure of
investigative techniques, procedures, and Distribution Program on Indian On March 14, 2016, the Department
evidence. Reservations (FDPIR) and The published a proposed rule to implement
(i) From subsection (g)(1) (Civil Remedies) Emergency Food Assistance Program the changes made by Section 4018. See
to the extent that the system is exempt from (TEFAP), both of which receive funding Supplemental Nutrition Assistance
other specific subsections of the Privacy Act. and/or foods authorized under the FNA. Program Promotion, 81 FR 13290 (Mar.
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Document Created: 2018-02-14 09:09:53
Document Modified: 2018-02-14 09:09:53
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective December 20, 2016. | |
| 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. | |
| FR Citation | 81 FR 92549 | |
| CFR Associated | Freedom of Information and Privacy |
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