[Federal Register Volume 78, Number 226 (Friday, November 22, 2013)]
[Rules and Regulations]
[Pages 69983-69985]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27896]



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Rules and Regulations
Federal Register
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Federal Register / Vol. 78, No. 226 / Friday, November 22, 2013 /
Rules and Regulations

[[Page 69983]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0047]


Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security U.S. Citizenship and Immigration Services,
Immigration and Customs Enforcement, Customs and Border Protection--001
Alien File, Index, and National File Tracking System of Records

AGENCY: Privacy Office, DHS.

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 an updated and reissued
system of records titled, ``Department of Homeland Security U.S.
Citizenship and Immigration Services, Immigration and Customs
Enforcement, Customs and Border Protection--001 Alien File, Index, and
National File Tracking System of Records'' from certain provisions of
the Privacy Act. Specifically, the Department exempts portions of the
system of records from one or more provisions of the Privacy Act
because of criminal, civil, and administrative enforcement
requirements.

DATES: Effective Date: This final rule is effective November 22, 2013.

FOR FURTHER INFORMATION CONTACT: For general questions about this
system of records please contact: Donald K. Hawkins (202) 272-8000,
Privacy Officer, U.S. Citizenship and Immigration Services, 20
Massachusetts Avenue NW., Washington, DC 20529. For privacy issues
please contact: Jonathan R. Cantor (202) 343-1717, Deputy Chief Privacy
Officer, Privacy Office, Department of Homeland Security, Washington,
DC 20528.

SUPPLEMENTARY INFORMATION:

Background

The Department of Homeland Security (DHS) U.S. Citizenship and
Immigration Services (USCIS), U.S. Immigration and Customs Enforcement
(ICE), U.S. Customs and Border Protection (CBP) published a notice of
proposed rulemaking in the Federal Register, 76 FR 34177 (June 13,
2011), 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. The system of records is the
DHS/USCIS-ICE-CBP-001 Alien File, Index, and National File Tracking
System of Records. The DHS/USCIS-ICE-CBP-001 Alien File, Index, and
National File Tracking System of Records Notice was published
concurrently in the Federal Register, 76 FR 34233 (June 13, 2011), and
comments were invited on both the Notice of Proposed Rulemaking (NPRM)
and System of Records Notice (SORN).

Public Comments

DHS received two public comments regarding the NPRM and one public
comment regarding the SORN.

NPRM

DHS received comments from two individuals regarding the DHS/USCIS-
ICE-CBP-001 NPRM. We have determined not to makes any changes to the
Final Rule based on the comments but have made some non-substantive
edits for clarity and consistency. Both commenters expressed concerns
about DHS exempting records without justification. Pursuant to the
Privacy Act of 1974, DHS exempts these records from the access and
amendment provisions of the Privacy Act because they may contain
classified and sensitive unclassified information related to
intelligence, counterterrorism, homeland security, and law enforcement
programs. 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's ability to obtain information from third
parties and other sources; to protect the privacy of third parties; and
to safeguard classified information. Disclosure of information to the
subject of the inquiry could also permit the subject to avoid detection
or apprehension.
One commenter had several additional concerns. This commenter
contended that individuals are not properly notified about the extent
to which their information may be shared. DHS indicates on all
information collection forms that the information will be shared
pursuant to the routine uses listed in the appropriate SORN. DHS
informs the public that as part of collecting the information in the
Alien File, information may be shared for immigration, law enforcement,
and national security purposes.
The commenter expressed concern that the new routine uses exceed
the purposes of the original collection of information, weakening the
privacy protections of the system. DHS is providing this updated list
of routine uses to better inform the public about the typical uses of
information contained in the Alien File. The Alien File provides a
central location for information to address several immigration and law
enforcement needs. Because of the nature of the immigration lifecycle,
this information must be available for several purposes consistent with
the original collection. Information is necessary not just to
adjudicate the requested benefit, but also provide information for law
enforcement purposes and normal agency functions. The commenter
expressed concern about the use of this information for audit purposes,
but such a routine use is necessary to ensure the integrity of the
immigration system and evaluate DHS's performance.
The commenter expressed concern about DHS reviewing requests for
information pursuant to the Privacy Act on a case-by-case basis,
because it is an inefficient method for reviewing requests. DHS reviews
requests for information on a case-by-case basis to prevent information
from being withheld categorically. When the release of information will
not interfere with the purposes of an exemption, DHS will release the
information. System-level exemptions do not permit the

[[Page 69984]]

individualized attention afforded by a case-by-case review, and would
result in information being needlessly withheld.
The commenter expressed concern that the system does not embody the
Fair Information Practice Principles (FIPPs). As is evident from the
SORN and the above, DHS implements the FIPPs in developing all of its
systems of records. DHS provides transparency through notice to the
public describing the records it maintains about individuals; provides
individual participation by collecting information directly from the
individual whenever possible; provides purpose specification and use
limitation by enumerating the general purposes and routine uses of the
information; provides data minimization by limiting the amount of and
time data is retained; provides data integrity by correcting and
updating information and providing redress; and implements security and
auditing controls.
The commenter recommended DHS require any agency requesting records
from this system complete a Privacy Impact Assessment (PIA). Generally,
the E-Government Act of 2002 requires federal agencies to perform a PIA
when information technology is involved in collecting, using, or
maintaining personally identifiable information from the public. DHS
does not evaluate the application of the E-Government Act to another
agency's request for records from this system and does not require
other agencies to perform PIAs. However, DHS requires each agency that
receives information from the Alien File to demonstrate a proper need
to know the information consistent with Privacy Act exceptions and
routine uses and agree to terms of use safeguarding the information.
Accordingly, DHS believes that it takes adequate steps to ensure that
information from the Alien file is afforded adequate privacy
protections when it is disclosed to another agency.

SORN

DHS received one comment about the DHS/USCIS-ICE-CBP-001 SORN
expressing frustration with the public comment process and with the
general state of immigration in the United States. DHS acknowledges the
commenter's frustration.
After consideration of public comments, DHS will implement the
rulemaking as proposed with minor grammatical changes.

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 70 to read as follows:

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

* * * * *
70. DHS/USCIS-ICE-CBP-001 Alien File, Index, and National File
Tracking System of Records consists of electronic and paper records
and will be used by USCIS, ICE, and CBP. DHS/USCIS-ICE-CBP-001 Alien
File, Index, and National File Tracking 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 thereunder; and national security and
intelligence activities. DHS/USCIS-ICE-CBP-001 Alien File, Index,
and National File Tracking 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,
territorial, foreign, or international government agencies. The
Secretary of Homeland Security has exempted this system from the
following provisions of the Privacy Act pursuant to 5 U.S.C.
552a(j)(2): 5 U.S.C. 552a(c)(3) and (c)(4), (d), (e)(1), (e)(2),
(e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12),
(f), (g)(1), and (h). Additionally, the Secretary of Homeland
Security has exempted this system from the following provisions of
the Privacy Act pursuant to 5 U.S.C. 552a(k)(1) and (k)(2): 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
Exemptions from these particular subsections may be 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 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 Individuals) because
providing such detailed information could impede law enforcement by
compromising the existence of a confidential investigation or reveal
the identity of witnesses, DHS employees, 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, 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 impede DHS officials' ability to effectively use their
investigative training and exercise good judgment to both conduct
and report on investigations.

[[Page 69985]]

(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 (e)(12) (Computer Matching) if the agency is
a recipient agency or a source agency in a matching program with a
non-Federal agency, with respect to any establishment or revision of
a matching program, at least 30 days prior to conducting such
program, publish in the Federal Register notice of such
establishment or revision.
(j) From subsection (g)(1) (Civil Remedies) to the extent that
the system is exempt from other specific subsections of the Privacy
Act. (k) From subsection (h) (Legal Guardians) if the parent of any
minor, or the legal guardian of any individual who has been declared
to be incompetent due to physical or mental incapacity or age by a
court of competent jurisdiction, is acting on behalf of the
individual.

Dated: October 28, 2013.
Jonathan R. Cantor,
Deputy Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2013-27896 Filed 11-21-13; 8:45 am]
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