[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]


=======================================================================
-----------------------------------------------------------------------

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.

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

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]
BILLING CODE 9111-97-P