[Federal Register Volume 84, Number 159 (Friday, August 16, 2019)]
[Proposed Rules]
[Pages 41940-41941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17363]



[[Page 41940]]

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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 005-2019]


Privacy Act of 1974; Implementation

AGENCY: Executive Office for Immigration Review, United States 
Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In the Notices section of this issue of the Federal Register, 
the Executive Office for Immigration Review, (EOIR), a component within 
the United States Department of Justice (DOJ or Department), has 
published a notice of a new system of records: Office of the Chief 
Administrative Hearing Officer (OCAHO) Case Management System (CMS), 
JUSTICE/EOIR-002. In this notice of proposed rulemaking, the Department 
proposes for the reasons listed below to exempt this system of records 
from certain provisions of the Privacy Act in order to ensure the 
integrity of investigatory and adjudicatory records in cases before 
OCAHO. Public comment is invited.

DATES: Send comments by September 16, 2019.

ADDRESSES: You may send comments by any of the following methods:
     Email: [email protected]. To ensure proper 
handling, please reference the CPCLO Order No. in the subject line of 
the message.
     Fax: 202-307-0693.
     Mail: United States Department of Justice, Office of 
Privacy and Civil Liberties, ATTN: Privacy Analyst, 145 N Street NE, 
Suite 8W.300, Washington, DC 20530. All comments sent via regular or 
express mail will be considered timely if postmarked on the day the 
comment period closes. To ensure proper handling, please reference the 
CPCLO Order No. in your correspondence.
     Federal eRulemaking Portal: http://www.regulations.gov. 
When submitting comments electronically, you must include the CPCLO 
Order No. in the subject box. Please note that electronic comments must 
be submitted before midnight Eastern Daylight Saving Time on the day 
the comment period closes, and the website for comments, http://www.regulations.gov, will stop receiving comments at that time. 
Commenters in other time zones should adjust the times for their 
submission accordingly.
    Posting of Public Comments: Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at http://www.regulations.gov and in the Department's 
public docket. Such information includes any personally identifying 
information (such as name, address, etc.) voluntarily submitted by the 
commenter. If you want to submit personally identifying information 
(such as your name, address, etc.) as part of your comment, but do not 
want it to be posted online or made available in the public docket, you 
must include the phrase ``PERSONALLY IDENTIFYING INFORMATION'' in the 
first paragraph of your comment. All personally identifying information 
that you do not want posted online or made available in the public 
docket should be placed in the first paragraph of your comment, where 
you should identify what information you want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online or made available 
in the public docket, you must include the phrase ``CONFIDENTIAL 
BUSINESS INFORMATION'' in the first paragraph of your comment. You must 
also prominently identify confidential business information that you 
wish to be redacted within the comment. If a comment has so much 
confidential business information that it cannot be effectively 
redacted, all or part of that comment may not be posted online or made 
available in the public docket.
    Personally identifying information and confidential business 
information identified and located as set forth above, will to the 
extent feasible be redacted, and the comment, in redacted form, may be 
posted online and placed in the Department's public docket file. Please 
note that the Freedom of Information Act applies to all comments 
received. If you wish to inspect the agency's public docket file in 
person by appointment, please see the FOR FURTHER INFORMATION CONTACT 
section, below.

FOR FURTHER INFORMATION CONTACT: Marta Rothwarf and Michelle Curry, 
Associate General Counsels and Co-Senior Component Officials for 
Privacy, Office of the General Counsel, Executive Office for 
Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 
22041, by email at [email protected] and 
[email protected], or by facsimile at 703-305-0443.

SUPPLEMENTARY INFORMATION: EOIR proposes to establish a new system of 
records subject to the Privacy Act of 1974, 5 U.S.C. 552a. The proposed 
system of records will be used by OCAHO to facilitate adjudication of 
its cases and may include paper and electronic files maintained by 
OCAHO. The records to be maintained in this new system historically 
have been included as part of EOIR-001, Records and Management 
Information System. They are being transferred into this new system to 
improve efficiency, improve records management practices, and provide 
better access for parties to proceedings.
    OCAHO Administrative Law Judges (ALJs) hear cases and adjudicate 
issues arising under the provisions of the Immigration and Nationality 
Act (INA) relating to: (1) Knowingly hiring, recruiting or referring 
for a fee, or continuing to employ unauthorized aliens, failure to 
comply with employment eligibility verification requirements, and 
requiring indemnity bonds from employees in violation of section 274A 
of the INA (8 U.S.C. 1324a), (2) immigration-related unfair employment 
practices in violation of section 274B of the INA (8 U.S.C. 1324b), and 
(3) immigration-related document fraud in violation of section 274C of 
the INA (8 U.S.C. 1324c).
    Complaints under sections 274A and 274C of the INA are filed by the 
U.S. Department of Homeland Security (DHS), Immigration and Customs 
Enforcement (ICE). Complaints under section 274B of the INA may be 
filed by private individuals or entities, or by the U.S. Department of 
Justice, Civil Rights Division, Immigrant and Employee Rights Section 
(DOJ/CRT). The respondents in OCAHO cases are typically businesses or 
employers. The parties to 274A and 274C cases may seek administrative 
review of ALJ decisions and orders by the Chief Administrative Hearing 
Officer (CAHO). Parties in all case types may appeal final agency 
orders to the appropriate United States Circuit Court of Appeals.
    In order to process and adjudicate cases and appeals, OCAHO must 
collect certain information and documents from and about complainants 
and respondents. The DOJ/CRT and DHS ICE can file complaints with 
OCAHO. Often, these agencies will submit investigatory records as 
exhibits or attachments to other filings. The investigatory records 
include, but are not limited to, notices of inspection, summaries of 
inspection results, affidavits or memoranda from investigators, results 
from searches of internal agency databases, and similar records. These 
exhibits or attachments then become part of OCAHO's official case 
record.
    To improve tracking and storage of case-related information and 
documents, OCAHO is implementing a new electronic case management 
system (CMS). The OCAHO CMS will manage the entire life cycle of 
OCAHO's case

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processes, including tracking and managing case information and 
documents, facilitating case research, and reporting on key business 
functions and metrics. The OCAHO CMS will also include an electronic 
filing capability, which will enable parties to submit case information 
and documents electronically through a secure web-based portal. The 
portal will also provide notifications and updates on case status, and 
will allow authorized parties to access copies of all case-related 
documents electronically. The system is segregated by ``need to know'' 
user controls and allows authorized users to track various stages of 
the proceedings. The system also contains templates to generate 
letters, notices, and decisions used in the OCAHO process. The system 
can generate reports by case status and disposition.

Executive Orders 12866, 13563, 13771--Regulatory Review

    In accordance with 5 U.S.C. 552a(j) and 552a(k), this proposed 
action is subject to rulemaking procedures by giving interested persons 
an opportunity to participate in the rulemaking process ``through 
submission of written data, views, or arguments,'' pursuant to 5 U.S.C. 
553. The exemptions claimed by the system, as detailed below, do not 
raise novel legal or policy issues, nor do they adversely affect the 
economy, the budgetary impact of entitlements, grants, user fees, loan 
programs, or the rights and obligations of recipients thereof in a 
material way. The Department of Justice has determined that this rule 
is not a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), and accordingly this rule has not been reviewed by the 
Office of Information and Regulatory Affairs within the Office of 
Management and Budget.

Regulatory Flexibility Act

    This proposed rule will only impact Privacy Act-protected records, 
which are personal and generally do not apply to an individual's 
entrepreneurial capacity, subject to limited exceptions. Accordingly, 
the Chief Privacy and Civil Liberties Officer, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact on a substantial number of small 
entities.

Congressional Review Act

    This proposed rule is not a major rule as defined by 5 U.S.C. 804 
of the Congressional Review Act.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires 
the Department to consider the impact of paperwork and other 
information collection burdens imposed on the public. The Paperwork 
Reduction Act applies to some of the records collected as part of this 
system of records. The following approved information collection is 
associated with this system of records: Form EOIR-58, Unfair 
Immigration-Related Employment Practices Complaint Form, and OMB #1125-
0016. This system of records will also collect information via a web-
based electronic filing portal. The Department is in the process of 
seeking approval of this information collection under the Paperwork 
Reduction Act.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000, as adjusted for inflation, or more in any one 
year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

List of Subjects in 28 CFR Part 16

    Administrative practices and procedures, Courts, Freedom of 
information, and the Privacy Act.

    Pursuant to the authority vested in the Attorney General by 5 
U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, 
the Department of Justice proposes to amend 28 CFR part 16 as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

0
1. The authority citation for part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 
534; 31 U.S.C. 3717.

0
2. Amend Sec.  16.83 by adding paragraphs (e) and (f) to read as 
follows:


Sec.  16.83   Exemption of the Executive Office for Immigration Review 
System--limited access.

* * * * *
    (e) The following system of records is exempt from 5 U.S.C. 
552a(d):
    Office of the Chief Administrative Hearing Officer (OCAHO) Case 
Management System (CMS) (JUSTICE/EOIR-002). This exemption applies only 
to the extent that information in the system is subject to exemption 
pursuant to 5 U.S.C. 552a(k)(1) and (2).
    (f) Exemption from the particular subsections are justified for the 
following reasons:
    (1) In limited circumstances, from subsection (d) when access to 
the records contained in this system of records could inform the 
subject of an ongoing investigation of an actual or potential criminal, 
civil, or regulatory violation or the existence of that investigation; 
of the nature and scope of the information and evidence obtained as to 
the subject's activities; of the identity of confidential sources, 
witnesses, and law enforcement personnel; and of information that may 
enable the subject to avoid detection or apprehension. These factors 
would present a serious impediment to effective law and regulatory 
enforcement where they prevent the successful completion of the 
investigation, endanger the physical safety of confidential sources, 
witnesses, and law enforcement personnel; and/or lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony. In addition, granting access to such 
information could disclose security-sensitive or confidential business 
information or information that would constitute an unwarranted 
invasion of the personal privacy of third parties.
    (2) From subsection (d)(2), (3), and (4) because the administrative 
case files constitute an official record which includes transcripts of 
administrative proceedings, investigatory materials, evidentiary 
materials such as exhibits, decisional memoranda, and other case-
related papers. Administrative due process could not be achieved by the 
ex parte ``correction'' of such materials by the individual who is the 
subject thereof.

    Dated: August 7, 2019.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States 
Department of Justice.
[FR Doc. 2019-17363 Filed 8-15-19; 8:45 am]
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