[Federal Register Volume 84, Number 90 (Thursday, May 9, 2019)]
[Rules and Regulations]
[Pages 20240-20242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09598]


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

DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 5

[Docket No. DHS-2018-0075]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Immigration and Customs Enforcement-007 Criminal 
History and Immigration Verification (CHIVe) System of Records

AGENCY: Office of the Secretary, 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/
Immigration and Customs Enforcement-007 Criminal History and 
Immigration Verification (CHIVe) System of Records'' from certain 
provisions of the Privacy Act. Specifically, the Department exempts 
portions of this 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 May 9, 2019.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Jordan Holz, (202-732-3300), Acting Privacy Officer, U.S. Immigration 
and Customs Enforcement, Washington, DC 20536. For privacy issues 
please contact: Jonathan R. Cantor (202-343-1717), Acting Chief Privacy 
Officer, Privacy Office, Department of Homeland Security, Washington, 
DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    The Department of Homeland Security (DHS) U.S. Immigration and 
Customs Enforcement (ICE) published a notice of proposed rulemaking 
(NPRM) in the Federal Register (83 FR 20738, May 8, 2018) proposing to 
exempt portions of DHS/ICE-007 Criminal History and Immigration 
Verification (CHIVe) System of Records from one or more provisions of 
the Privacy Act because of criminal, civil, and

[[Page 20241]]

administrative enforcement requirements. This system of records was 
published concurrently in the Federal Register (83 FR 20844, May 8, 
2018), and comments were invited on both the NPRM and SORN.

II. Public Comments

    DHS received six comments on the NPRM and 92 on the SORN.

NPRM and SORN

    DHS has reviewed the six comments received for the NPRM and the 92 
comments for the SORN. Because the comments submitted for both the SORN 
and NPRM were similar in nature, DHS has summarized them based on the 
nature of the comment. The comments primarily discussed the following:
     Objecting to the Department of Health and Human Services 
(HHS) using immigration status as a factor in granting or denying an 
application for a potential Unaccompanied Alien Child (UAC) sponsor;
     Objecting to ICE's involvement in the UAC sponsor 
screening process by collecting information on potential UAC sponsors 
and other adult members of those sponsors' households, determining 
these individuals' immigration statuses, and sharing that information 
with HHS;
     Stating that this new process is not in the best interests 
of the child, and that children will be denied sponsors who could 
provide suitable living environments; and
     Objecting to the potential separation of families, when 
this would not be in the best interests of the child.
    These comments pertain to ICE's involvement in the UAC sponsor 
screening process. In this process, ICE shares very limited information 
with HHS for a discrete purpose. Under its legal authority, ICE shares 
immigration status and limited criminal history information with HHS to 
inform an HHS determination whether to grant or deny a UAC sponsorship 
application.
    Though this process involves the sharing of information, the 
comments received do not pertain to the Privacy Act exemptions proposed 
by DHS in this rulemaking. Therefore, DHS 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 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. Amend appendix C to part 5 by adding paragraph 80 to read as 
follows:

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

* * * * *
    80. The DHS/ICE-007 Criminal History and Immigration 
Verification (CHIVe) System of Records consists of electronic and 
paper records and will be used by DHS and its components. The CHIVe 
System of Records is a repository of information held by DHS in 
connection with its several and varied missions and functions, 
including the enforcement of civil and criminal laws; 
investigations, inquiries, and proceedings thereunder; and national 
security and intelligence activities. The CHIVe 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(j)(2), 
has exempted this system from the following provisions of the 
Privacy Act: 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); (f); and 
(g). Additionally, the Secretary of Homeland Security, pursuant to 5 
U.S.C. 552a(k)(2), 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); and (f). 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. Information on a 
completed investigation may be withheld and exempt from disclosure 
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 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 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

[[Page 20242]]

under seal and could result in disclosure of investigative 
techniques, procedures, and evidence.
    (j) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2019-09598 Filed 5-8-19; 8:45 am]
 BILLING CODE 9111-28-P