[Federal Register Volume 82, Number 182 (Thursday, September 21, 2017)]
[Proposed Rules]
[Pages 44124-44126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19717]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 82, No. 182 / Thursday, September 21, 2017 / 
Proposed Rules

[[Page 44124]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS 2017-0026]


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, Privacy Office.

ACTION: Notice of proposed rulemaking. SUMMARY: The Department of 
Homeland Security is giving concurrent notice of a newly established 
system of records pursuant to the Privacy Act of 1974 for the 
``Department of Homeland Security (DHS)/U.S. Customs and Border 
Protection (CBP)-024 CBP Intelligence Records System (CIRS) System of 
Records'' and this proposed rulemaking. In this proposed rulemaking, 
the Department proposes 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.

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

DATES: Comments must be received on or before October 23, 2017.

ADDRESSES: You may submit comments, identified by docket number DHS 
2017-0026, by one of the following methods:
    <bullet> Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Fax: 202-343-4010.
    <bullet> Mail: Jonathan R. Cantor, Acting Chief Privacy Officer, 
Privacy Office, Department of Homeland Security, Washington, DC 20528.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. 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 general questions please contact: 
Debra L. Danisek (202) 344-1610, Privacy Officer, U.S. Customs and 
Border Protection, 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

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS)/U.S. Customs and Border 
Protection (CBP) proposes to concurrently establish a new DHS system of 
records titled, ``DHS/CBP-024 CBP Intelligence Records System (CIRS) 
System of Records'' and this notice of proposed rulemaking 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.
    The CIRS system of records is owned by CBP's Office of Intelligence 
(OI). CIRS contains information collected by CBP to support CBP's law 
enforcement intelligence mission. This information includes raw 
intelligence information collected by CBP's OI, public source 
information, and information initially collected by CBP pursuant to its 
immigration and customs authorities. This information is analyzed and 
incorporated into intelligence products. CBP currently uses the 
Analytical Framework for Intelligence (AFI) and the Intelligence 
Reporting System (IRS) information technology (IT) systems to 
facilitate the development of finished intelligence products. These 
products are disseminated to various stakeholders including CBP 
executive management, CBP operational units, various government 
agencies, and the Intelligence Community. Information collected by CBP 
for an intelligence purpose that is not covered by an existing DHS 
System of Records Notice (SORN) and is not incorporated into a finished 
intelligence product is retained and disseminated in accordance with 
this SORN. Finished intelligence products, and the information 
contained in those products, regardless of the original source system 
of that information, are also retained and disseminated in accordance 
with this SORN.
    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 subject to an existing DHS SORN. CIRS records were previously 
covered by CBP's Automated Targeting System SORN, DHS/CBP-006, 77 FR 
30297 (May 22, 2012), and CBP's Analytical Framework for Intelligence 
System SORN, DHS/CBP-017, 77 FR 13813 (June 7, 2012). As part of the 
intelligence process, CBP investigators and analysts must review large 
amounts of data to identify and understand relationships between 
individuals, entities, threats, and events to generate law enforcement 
intelligence products that provide CBP operational units with 
actionable information for law enforcement purposes.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/CBP-024 CBP Intelligence Records System (CIRS) System of 
Records. Some information in CIRS relates to official DHS national 
security, law enforcement, immigration, and intelligence activities. 
These exemptions are needed to protect information relating to DHS 
activities from disclosure to subjects or others related to these 
activities. Specifically, the exemptions are required to preclude 
subjects of these activities from frustrating these processes; to avoid 
disclosure of activity techniques; to protect the identities and 
physical safety of confidential informants and law enforcement 
personnel; to ensure DHS retains the ability to obtain information from 
third parties and other sources; and to protect the privacy of third 
parties. Disclosure of information to the subject of the inquiry could 
also permit the subject to avoid detection or apprehension.
    In appropriate circumstances, when compliance would not appear to 
interfere with or adversely affect the law enforcement purposes of this 
system and the overall law enforcement

[[Page 44125]]

process, the applicable exemptions may be waived on a case by case 
basis.
    A notice of system of records for DHS/CBP-024 CIRS System of 
Records is also published in this issue of the Federal Register.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which Federal Government 
agencies collect, maintain, use, and disseminate individuals' records. 
The Privacy Act applies to information that is maintained in a ``system 
of records.'' A ``system of records'' is a group of any records under 
the control of an agency from which information is retrieved by the 
name of an individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual. In the Privacy Act, 
an individual is defined to encompass U.S. citizens and lawful 
permanent residents. Additionally, and similarly, the Judicial Redress 
Act (JRA) provides a statutory right to covered persons to make 
requests for access and amendment to covered records, as defined by the 
JRA, along with judicial review for denials of such requests. In 
addition, the JRA prohibits disclosures of covered records, except as 
otherwise permitted by the Privacy Act.
    The Privacy Act allows government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

    For the reasons stated in the preamble, DHS proposes to amend 
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. In appendix C to part 5, add paragraph 78:

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

* * * * *
    78. 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.
    (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 44126]]

complete records; or failure to otherwise comply with an 
individual's right to access or amend records.

Jonathan R. Cantor
Acting Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2017-19717 Filed 9-20-17; 8:45 am]
 BILLING CODE 9111-14-P