[Federal Register Volume 76, Number 220 (Tuesday, November 15, 2011)]
[Rules and Regulations]
[Pages 70637-70638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29447]



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  Federal Register / Vol. 76, No. 220 / Tuesday, November 15, 2011 / 
Rules and Regulations  

[[Page 70637]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0110]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Citizenship and Immigration Services-016 
Electronic Immigration System-3 Automated Background Functions 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-016 Electronic Immigration System-
3 Automated Background Functions System of Records'' from certain 
provisions of the Privacy Act. Specifically, the Department exempts 
portions of the ``Department of Homeland Security/U.S. Citizenship and 
Immigration Services-016 Electronic Immigration System-3 Automated 
Background Functions 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 15, 2011.

FOR FURTHER INFORMATION CONTACT: For general questions 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: Mary Ellen Callahan (703) 
235-0780, 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) published a notice of proposed rulemaking 
in the Federal Register, 76 FR 60385, September 29, 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-016 
Electronic Immigration System-3 Automated Background Functions System 
of Records. The DHS/USCIS-016 Electronic Immigration System-3 Automated 
Background Functions system of records notice was published 
concurrently in the Federal Register, 76 FR 60059, September 28, 2011, 
and comments were invited on both the Notice of Proposed Rulemaking 
(NPRM) and System of Records Notice (SORN).

Public Comments

    DHS received no comments on the NPRM or SORN and will implement the 
rulemaking as proposed.

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. Add at the end of Appendix C to Part 5, the following new paragraph 
``65'':

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

* * * * *
    65. The DHS/USCIS-016 Electronic Immigration System-3 Automated 
Background Functions System of Records consists of electronic and 
paper records and will be used by DHS and its components. The DHS/
USCIS-016 Electronic Immigration System-3 Automated Background 
Functions System of Records is a repository of information held by 
USCIS to serve its mission of processing immigration benefits. This 
system also supports certain other DHS programs whose functions 
include, but are not limited to, the enforcement of civil and 
criminal laws; investigations, inquiries, and proceedings there 
under; and national security and intelligence activities. The DHS/
USCIS-016 Electronic Immigration System-3 Automated Background 
Functions 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, foreign, or 
international government agencies. This system is exempted from the 
following provisions of the Privacy Act pursuant to 5 U.S.C. 
552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I); and (f). Additionally, many of the functions in this 
system require retrieving records from law enforcement systems. 
Where a record received from another system has been exempted in 
that source system under 5 U.S.C. 552a(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 in accordance with this rule. Exemptions from 
these particular subsections are justified, on a case-by-case basis 
determined at the time a request is made, for the following reasons:
    (a) From subsection (c)(3) (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/or 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

[[Page 70638]]

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 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.

    Dated: November 2, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-29447 Filed 11-14-11; 8:45 am]
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