[Federal Register Volume 76, Number 113 (Monday, June 13, 2011)]
[Proposed Rules]
[Pages 34177-34180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14486]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2011-0047]
Privacy Act of 1974: Implementation of Exemptions; 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: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security is giving concurrent
notice of an updated system of records pursuant to the Privacy Act of
1974 for the Department of Homeland Security United States Citizenship
and Immigration Services, Immigration and Customs Enforcement, and
Customs and Border Protection--001 Alien File, Index, and National File
Tracking 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. The legacy final rule (28 CFR 16.99) exempting the
Immigration and Naturalization Service A-File and Central Index System,
JUSTICE/INS-
[[Page 34178]]
001A legacy system of records from certain portions of the Privacy Act
remains in effect until publication of a final rule for this system by
the Department.
DATES: Comments must be received on or before July 13, 2011.
ADDRESSES: You may submit comments, identified by docket number DHS-
2011-0047, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 703-483-2999.
Mail: Mary Ellen Callahan, 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 rulemaking. 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.
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
Donald K. Hawkins, Privacy Officer, U.S. Citizenship and Immigration
Services, 20 Massachusetts Ave., NW., Washington, DC 20529. For privacy
issues please contact Mary Ellen Callahan, Chief Privacy Officer,
Privacy Office, Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The Department of Homeland Security (DHS) implements U.S.
immigration law and policy through the U.S. Citizenship and Immigration
Service's (USCIS) processing and adjudication of applications and
petitions submitted for citizenship, asylum, and other immigration
benefits. USCIS also supports national security by preventing
individuals from fraudulently obtaining immigration benefits and by
denying applications from individuals who pose national security or
public safety threats. U.S. immigration policy and law is also
implemented through U.S. Immigration and Customs Enforcement's (ICE)
law enforcement activities and U.S. Customs and Border Protection's
(CBP) inspection and border protection processes.
The Alien File (A-File), Index, and National File Tracking System
of Records is the official record system that contains information
regarding transactions involving an individual as he/she passes through
the U.S. immigration and inspection process. The DHS/USCIS-ICE-CBP--001
Alien File, Index, and National File Tracking System of Records
contains personally identifiable information (PII) such as the
individual's name, Alien Registration Number (A-Number), receipt
number, date and place of birth, date and port of entry, as well as the
location of each official A-File. It may also contain other personal
identifiers such as an individual's social security number. Some
records contained in the DHS/USCIS-ICE-CBP--001 Alien File, Index, and
National File Tracking System of Records are derived from separate
systems of record, in which case the system of records notice
pertaining to the originating system would govern the treatment of
those records. Previously, the legacy agency Immigration and
Naturalization Services (INS) collected and maintained information
concerning all of these immigration and inspection interactions. Since
the formation of DHS, however, immigration responsibilities have been
divided among USCIS, ICE, and CBP. While USCIS is the custodian of the
A-File, all three components create and use A-Files.
A notice detailing this system of records was last published in the
Federal Register on January 16, 2007, as the DHS/USCIS-001 Alien File
and Central Index System (CIS), (72 FR 1755).
DHS is updating the DHS/USCIS-001 Alien File and Central Index
System of Records to be renamed DHS/USCIS-ICE-CBP--001 Alien File,
Index, and National File Tracking System of Records to include the
following substantive changes: (1) The addition of thirteen routine
uses and updates to other routine uses to allow DHS to share
information from the system; (2) an update to the classification level
of the system and to provide notice that the system may contain
classified records; and (3) a proposed exemption from certain
provisions of the Privacy Act for records that are classified.
DHS is renaming this system in order to provide a better
description of the types of records that are maintained in this system
of records. These records may be maintained in paper or electronic
format, but the uses and protections outlined in the notice do not
change because of the format or the specific IT system in which they
are maintained. DHS has provided more explicit notice on the specific
IT systems where these types of records may exist under ``Location.''
Routine Use changes (the letter in parentheses corresponds to the
Routine Use): DHS has added thirteen new routine uses and modified
others in order to allow DHS to release system information:
(A) Updated: To include DHS as an additional party for litigation
in the release of information to the Department of Justice (DOJ);
(D) New: To an agency, organization, or individuals for the purpose
of performing audits or oversight as authorized by law;
(F) Updated: To include interns and students working on assignments
for DHS;
(I) New: To courts for immigration, civil, or criminal proceedings;
(K) New: To DOJ or other Federal agencies when conducting
litigation to assist in development of the agency's legal and/or policy
position;
(L) Updated: To include sharing with international organizations
about an alien or an enforcement operation with transnational
implications;
(P) New: To a government organization in regards to hiring or
retention of an individual where failure to disclose information on an
individual is likely to create a security risk;
(Q) Updated: Rewritten to provide better clarification on when
information is released to current or prospective employers;
(T) New: To Congress during the private immigration relief
legislation process;
(U) Updated: To government agencies to assist in the collection of
debts;
(V) Updated: To third parties posting immigration bonds;
(BB) New: To third parties when an individual will be released from
DHS custody to assist with arranging housing or medical care;
(CC) New: To domestic government agencies when an individual will
be released from DHS custody and there are concerns related to health
and safety;
(DD) New: To foreign governments to coordinate removal of
individuals;
(EE) New: To law enforcement agencies for de-conflicting
investigations and other coordination of law enforcement activities;
(FF) New: To custodial agencies to place an immigration detainer on
an
[[Page 34179]]
individual or to facilitate the transfer of custody of the individual
from DHS to that agency;
(GG) New: To government agencies to confirm the location, custodial
status, removal or voluntary departure of an alien in order to
facilitate the custody, care and/or legal rights of the individual's
minor children;
(HH) New: To government agencies to assist in making determinations
of redress;
(II) New: To share information from the system on a case-by-case
basis with the news media or public.
The latter sharing, to the news media or public, would be done only
with the approval of the DHS Chief Privacy Officer, who will weigh the
public interest in receiving the information against the privacy
interests of the individual to whom the information pertains, when the
disclosure is necessary to preserve confidence in the integrity of DHS
or demonstrate the accountability of DHS personnel.
Classification level: DHS has updated the SORN to indicate that
both classified and unclassified information may be maintained in the
A-File, as such DHS is providing a concurrent notice of proposed
rulemaking pursuant to the Privacy Act of 1974 for the DHS/USCIS-ICE-
CBP--001 Alien File, Index, and National File Tracking System of
Records to include an exemption for classified information in addition
to the existing law enforcement information exemption. The proposed
rule extends the Privacy Act exemption to classified information and
then re-publishes the existing exemptions claimed for the legacy
JUSTICE/INS-001A A-File and CIS, (66 FR 46812). Generally, USCIS, ICE,
and CBP are not the originators of the classified materials maintained
in some A-Files. DHS, therefore, would rely upon the Privacy Act
exemptions claimed by the system of records from which the classified
material originated. By issuing this particular exemption, DHS is
providing further transparency about the existence of classified
material in this system of records. All of the exemptions DHS is
proposing are standard law enforcement and national security exemptions
exercised by a large number of Federal law enforcement and intelligence
agencies. Until DHS publishes a final rule exempting the system from
certain portions of the Privacy Act, the legacy final rule exempting
the JUSTICE/INS-001A A-File and CIS, (66 FR 46812) legacy system of
records from certain portions of the Privacy Act remains in effect for
this system of records.
Pursuant to Public Law 107-296, Homeland Security Act of 2002,
Section 804 Savings Provisions, and by reference 28 CFR Appendix C to
part 16, subpart E, pertaining to the INS A-File and CIS, JUSTICE/INS-
001A (66 FR 46812) system of records notice, the records and
information in this system are exempt from 5 U.S.C. 552a (c)(3) and
(4), (d), (e)(1), (2), and (3), (e)(4)(G) and (H), (e)(5) and (8), and
(g) of the Privacy Act. These exemptions apply only to the extent that
records in the system are subject to exemption pursuant to 5 U.S.C.
552a (j)(2) and (k)(2).
Administrative changes: In addition to the above mentioned
substantive changes to this system of records notice, DHS has updated
the categories of individuals and categories of records so that they
are more clearly defined.
Consistent with DHS's statutory information sharing mission,
information stored in the DHS/USCIS-ICE-CBP--001 Alien File, Index, and
National File Tracking System of Records may be shared with other DHS
components, as well as appropriate Federal, state, local, Tribal,
foreign, or international government agencies. This sharing will take
place only after DHS determines that the receiving component or agency
has a need to know the information to carry out national security, law
enforcement, immigration, intelligence, or other functions consistent
with the purposes of this system of records and the routine uses set
forth in this system of records notice.
II. Privacy Act
The Privacy Act embodies fair information practice principles in a
statutory framework governing the means by which the U.S. Government
collects, maintains, uses, and disseminates personally identifiable
information. 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 the 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. As a matter of policy, DHS extends
administrative Privacy Act protections to all individuals where systems
of records maintain information on U.S. citizens, lawful permanent
residents, and visitors.
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.
DHS is claiming exemptions from certain requirements of the Privacy
Act for DHS/USCIS-ICE-CBP--001 Alien File, Index, and National File
Tracking System of Records. Some information in DHS/USCIS-ICE-CBP--001
Alien File, Index, and National File Tracking System of Records 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' 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.
The exemptions proposed here are standard law enforcement and
national security exemptions exercised by a large number of Federal law
enforcement and intelligence agencies. In appropriate circumstances,
where compliance would not appear to interfere with or adversely affect
the law enforcement purposes of this system and the overall law
enforcement process, the applicable exemptions may be waived on a case
by case basis.
A System of Records Notice for DHS/USCIS-ICE-CBP--001 Alien File,
Index, and National File Tracking System of Records is also published
in this issue of the Federal Register.
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
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.
2. Add at the end of Appendix C to part 5, the following new
paragraph ``55'':
[[Page 34180]]
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
55. 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, subject to limitations set
forth in 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) pursuant to 5 U.S.C. 552a(j)(2). Additionally,
the Secretary of Homeland Security has exempted this system from the
following provisions of the Privacy Act, subject to limitations set
forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I); and (f) pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
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 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, DHS employees' identities, 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. 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 (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) 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, may act on behalf of the
individual.
Dated: May 27, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-14486 Filed 6-10-11; 8:45 am]
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