[Federal Register Volume 84, Number 124 (Thursday, June 27, 2019)]
[Proposed Rules]
[Pages 30632-30634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13643]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 84, No. 124 / Thursday, June 27, 2019 / 
Proposed Rules  

[[Page 30632]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2018-0047]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security (DHS)/U.S. Customs and Border Protection (CBP)-022 
Electronic Visa Update System (EVUS)

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Department of Homeland Security (DHS) is giving concurrent 
notice of a reissued system of records pursuant to the Privacy Act of 
1974 for the ``Department of Homeland Security/U.S. Customs and Border 
Protection (CBP)-022 Electronic Visa Update System (EVUS) System of 
Records and this proposed rulemaking. DHS/CBP previously issued a Final 
Rule to exempt this system of records from certain provisions of the 
Privacy Act of 1974 on November 25, 2016, and codified in the Code of 
Federal Regulations. This regulation remains in effect until a new 
Final Rule becomes effective. DHS/CBP is reissuing a Notice of Proposed 
Rulemaking to expand the applicability of the previously issued 
exemptions from the Privacy Act of 1974 to account for modified routine 
uses and expanded categories of individuals described in the 
concurrently issued SORN.

DATES: Comments must be received on or before July 29, 2019.

ADDRESSES: You may submit comments, identified by docket number DHS-
2018-0047, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-343-4010.
     Mail: Jonathan R. Cantor, Acting 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 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: Debra L. Danisek, (202) 344-
1610, [email protected], CBP Privacy Officer, Privacy and 
Diversity Office, 1300 Pennsylvania Ave. NW, Washington, DC 20229.
    For privacy issues please contact: Jonathan R. Cantor, (202-343-
1717), [email protected], Acting Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION: 

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, DHS/CBP 
proposes to concurrently modify the DHS System of Records titled, 
``DHS/CBP-022 Electronic Visa Update System (EVUS) System of Records'' 
and issue this notice of proposed rulemaking to exempt portions of the 
system of records from one or more provision of the Privacy Act of 1974 
because of criminal, civil, and administrative enforcement 
requirements.
    This system of records notice (SORN) describes the collection, use, 
maintenance, and dissemination of records pertaining to eligible 
international travelers who: (1) Hold a passport that was issued by an 
identified country approved for inclusion in the EVUS program, and (2) 
have been issued a U.S. nonimmigrant visa of a designated category 
seeking to travel to the United States. The system of records will also 
cover records of other persons, including U.S. citizens and lawful 
permanent residents, whose names are provided to DHS as part of a 
nonimmigrant alien's EVUS enrollment. DHS/CBP ensures a visa holder's 
information remains current by requiring nonimmigrant aliens holding 
passports of identified countries containing U.S. nonimmigrant visas of 
a designated category with multiple year validity to update their EVUS 
information. After issuance of a visa, nonimmigrant aliens subject to 
EVUS requirements need to successfully enroll in EVUS online every two 
years to ensure their visa remains valid for travel to the United 
States.
    DHS/CBP vets the EVUS applicant's information against selected DHS 
and other federal agency databases to enhance DHS's ability to 
determine whether the applicant poses a security risk to the United 
States or is otherwise ineligible to travel and enter the United 
States. For instance, DHS/CBP vets against the following DHS databases, 
and their associated SORNs: TECS (not an acronym) (DHS/CBP-011 U.S. 
Customs and Border Protection TECS, December 19, 2008, 73 FR 77778), 
and the Automated Targeting System (ATS) (DHS/CBP-006 Automated 
Targeting System, May 22, 2012, 77 FR 30297). ATS retains a copy of 
EVUS enrollment data to identify EVUS enrollees who may pose a security 
risk to the United States. All EVUS vetting results, and derogatory 
information, are stored in ATS and covered by the ATS SORN.
    Further, as explained in the concurrent notice of the updated EVUS 
SORN, DHS/CBP is modifying this SORN to (1) clarify that the EVUS 
enrollment information includes questions necessary to evaluate whether 
a covered alien's travel to the United States poses a law enforcement 
or security risk, and to make administrative changes to remove 
references to the specific EVUS application questions and data 
elements; (2) provide additional transparency that vetting results are 
retained in ATS; (3) expand the previously issued exemptions to clarify 
that DHS/CBP is exempting certain portions of records in this system 
from provisions of the Privacy Act of 1974 because of criminal, civil, 
and administrative enforcement requirements; and (4) to add new Routine 
Uses and clarify previously issued ones.
    Due to the expansion of exemptions previously published for this 
system of records, DHS is issuing this Notice of Proposed Rulemaking 
(NPRM) concurrent with the SORN to exempt the system of records from 
certain provisions of the Privacy Act of 1974. These records are exempt 
from 5 U.S.C.

[[Page 30633]]

552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) 
through (I), (5), and (8); (f); and (g) of the Privacy Act of 1974, as 
amended, pursuant 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, pursuant to 5 U.S.C. 552a(k)(1) and 
(k)(2): 5 U.S.C. 552a(c)(3); (d)(1), (d)(2), (d)(3), and (d)(4); 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Such exempt records 
or information may be law enforcement or national security 
investigation records, law enforcement activity and encounter records, 
or terrorist screening records. DHS needs these exemptions in order to 
protect information relating to law enforcement investigations from 
disclosure to subjects of investigations and others who could interfere 
with investigatory and law enforcement activities. Specifically, the 
exemptions are required to: Preclude subjects of investigations from 
frustrating the investigative process; avoid disclosure of 
investigative techniques; protect the identities and physical safety of 
confidential informants and of law enforcement personnel; ensure DHS's 
and other federal agencies' ability to obtain information from third 
parties and other sources; protect the privacy of third parties; and 
safeguard sensitive information.
    Despite the exemptions taken on this system of records, DHS/CBP is 
not taking any exemption from subsection (d) with respect to 
information maintained in the system as it relates to data submitted by 
or on behalf of a person who travels to visit the United States and 
crosses the border, nor shall an exemption be asserted with respect to 
the resulting determination (authorized to travel, pending, or not 
authorized to travel). However, pursuant to 5 U.S.C. 552a(j)(2), DHS/
CBP plans to exempt such information in this system from sections 
(c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as is 
necessary and appropriate to protect this information. Further, DHS 
will claim exemption from section (c)(3) of the Privacy Act of 1974, as 
amended, pursuant to 5 U.S.C. 552a(k)(2) as is necessary and 
appropriate to protect this information. CBP will not disclose the fact 
that a law enforcement or intelligence agency has sought particular 
records because it may affect ongoing law enforcement activities. 
Nonetheless, DHS will examine each request on a case-by-case basis, 
and, after conferring with the appropriate component or agency, may 
waive applicable exemptions in appropriate circumstances and where it 
would not appear to interfere with or adversely affect the law 
enforcement or national security investigation.
    DHS/CBP previously issued a Final Rule to exempt this system of 
records from certain provisions of the Privacy Act of 1974 on November 
25, 2016 (81 FR 85105). These regulations remain in effect until a new 
Final Rule becomes effective. Once a Final Rule becomes effective, DHS 
will add this exemption to Appendix C to 6 CFR part 5, DHS Systems of 
Records Exempt from the Privacy Act.

II. Privacy Act

    The Privacy Act of 1974 embodies fair information practice 
principles in a statutory framework governing the means by which 
Federal Government agencies collect, maintain, use, and disseminate 
individual's records. The Privacy Act of 1974 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 of 1974, an individual is defined to 
encompass U.S. citizens and lawful permanent residents. Additionally, 
the Judicial Redress Act (JRA) provides a statutory right to covered 
persons to make requests for access and amendment to covered records, 
as defined by the JRA, along with judicial review for denials of such 
requests. In addition, the JRA prohibits disclosures of covered 
records, except as otherwise permitted by the Privacy Act of 1974.
    The Privacy Act of 1974 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.

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 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.

0
2. In appendix C to part 5, revise paragraph 20 to read as follows:

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

* * * * *
    20. The Department of Homeland Security (DHS)/U.S. Customs and 
Border Protection (CBP)-022 Electronic Visa Update System (EVUS) 
System of Records consists of electronic and paper records and will 
be used by DHS and its components. The DHS/CBP-022 Electronic Visa 
Update System (EVUS) 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; national security and intelligence 
activities. This system of records covers information 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. As part of the process of 
determining EVUS eligibility or admissibility to the United States, 
CBP collects two types of data for which it claims different 
exemptions.
    (a) CBP will not assert any exemption to limit an individual 
from accessing or amending his or her record under subsection 
552a(d) with respect to information maintained in the system as it 
relates to data submitted by or on behalf of a person who travels to 
visit the United States and crosses the border, nor shall an 
exemption be asserted with respect to the resulting determination 
(approval or denial). However, pursuant to 5 U.S.C. 552a(j)(2), CBP 
will not disclose the fact that a law enforcement or intelligence 
agency has sought particular records because it may affect ongoing 
law enforcement activities, and thus, the Secretary of Homeland 
Security has exempted such records covered by this system from 
sections (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as 
amended, as is necessary and appropriate to protect this 
information. Further, DHS will claim exemption from section (c)(3) 
of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C. 
552a(k)(2) as is necessary and appropriate to protect this 
information. 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:
    (i) 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.

[[Page 30634]]

    (ii) 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.
    (iii) From subsection (g) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.
    (b) Additionally, this system contains law enforcement and other 
derogatory records or information recompiled from or created from 
information contained in other systems of records that are exempt 
from certain provisions of the Privacy Act, and possibly relied upon 
as the basis for denial of an EVUS application. For these records or 
information only, 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), (c)(4); (d)(1)-
(4); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), 
(e)(5), and (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)(1)-(4); (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I); 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:
    (i) From subsection (c)(3) and (c)(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.
    (ii) 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, and to 
avoid detection or apprehension. From subsection (d) (Amendment to 
Records) because 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.
    (iii) 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.
    (iv) 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.
    (v) 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.
    (vi) 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, potential witnesses, and confidential informants.
    (vii) 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.
    (viii) 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.
    (ix) 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. 2019-13643 Filed 6-26-19; 8:45 am]
 BILLING CODE 9111-14-P