[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.

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

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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