[Federal Register Volume 83, Number 145 (Friday, July 27, 2018)]
[Rules and Regulations]
[Pages 35537-35538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16024]



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 Rules and Regulations
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  Federal Register / Vol. 83, No. 145 / Friday, July 27, 2018 / Rules 
and Regulations  

[[Page 35537]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2018-0039]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL-039 Foreign Access Management System of Records

AGENCY: Department of Homeland Security.

ACTION: Final rule.

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

SUMMARY: The Department of Homeland Security (DHS) 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/
ALL-039 Foreign Access Management System of Records'' from certain 
provisions of the Privacy Act. Specifically, the Department exempts 
portions of the ``Department of Homeland Security/ALL-039 Foreign 
Access Management System of Records'' from one or more provisions of 
the Privacy Act because of criminal, civil, and administrative 
enforcement requirements.

DATES: This final rule is effective July 27, 2018.

FOR FURTHER INFORMATION CONTACT: For general and privacy-related 
questions please contact: Philip S. Kaplan, [email protected], (202) 
343-1717, Chief Privacy Officer, Privacy Office, Department of Homeland 
Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

Background

    DHS published a notice of proposed rulemaking (NPRM) in the Federal 
Register (83 FR 19020, May 1, 2018) 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/ALL-039 Foreign Access 
Management System of Records. The DHS/ALL-039 Foreign Access Management 
System of Records system of records notice (SORN) was published in the 
Federal Register (83 FR 19078, May 1, 2018) and comments were invited 
on both the NPRM and SORN.

Public Comments

    DHS received no comments on the NPRM and no comments on the SORN. 
After consideration of the lack of public comments, the Department 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 amends 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 is revised 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 paragraph 78 to appendix C to part 5 to read as follows:

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

* * * * *
    78. The DHS/ALL-039 Foreign Access Management System of Records 
consists of electronic and paper records and will be used by DHS and 
its components. The DHS/ALL-039 Foreign Access Management 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 there under; and national 
security and intelligence activities. The DHS/ALL-039 Foreign Access 
Management 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. The Secretary of Homeland 
Security, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5), has 
exempted this system from the following provisions of the Privacy 
Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I); and (f). When 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 set forth here. 
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) (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 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. When an investigation has been completed, 
information on disclosures made may continue to be exempted if the 
fact that an investigation occurred remains sensitive after 
completion.
    (b) From subsection (d) (Access and Amendment 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 subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f)

[[Page 35538]]

(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.

Philip S. Kaplan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2018-16024 Filed 7-26-18; 8:45 am]
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