[Federal Register Volume 84, Number 225 (Thursday, November 21, 2019)]
[Rules and Regulations]
[Pages 64198-64200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25080]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 11-2019]


Privacy Act of 1974; Implementation

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

ACTION: Final rule.

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SUMMARY: The Executive Office for Immigration Review (EOIR), a 
component within the United States Department of Justice (DOJ or 
Department), is finalizing without changes its Privacy Act exemption 
regulations for the system of records titled, Office of the Chief 
Administrative Hearing Officer (OCAHO) Case Management System (CMS), 
JUSTICE/EOIR-002, which were published as a Notice of Proposed 
Rulemaking (NPRM) on August 16, 2019. Specifically, the Department's 
regulations will exempt the records maintained in JUSTICE/EOIR-002 from 
one or more provisions of the Privacy Act. The exemptions are necessary 
to ensure the integrity of investigatory and adjudicatory records in 
cases before OCAHO. The Department received two comments and neither 
comments were substantive.

DATES: This final rule is effective December 23, 2019.

FOR FURTHER INFORMATION CONTACT: Michelle Curry, Associate General 
Counsel and Senior Component Official 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], or by facsimile at 703-305-0443.

[[Page 64199]]


SUPPLEMENTARY INFORMATION:

Background

    EOIR created a new system of records subject to the Privacy Act of 
1974, 5 U.S.C. 552a. The 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 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.

Response to Public Comments

    In its OCAHO CMS NPRM and Notice of a New System of Records, 
published on August 16, 2019, the Department invited public comment (84 
FR 41940 and 84 FR 42016). The comment periods for both notices closed 
on September 16, 2019. The Department received two comments from 
individuals. The Department has closely reviewed and considered these 
comments. Both comments received were concerned with the general 
appropriateness of exempting records from certain provisions of the 
Privacy Act, including the provision for individual access to records 
under the Act. Congress recognized the need for exemptions to these 
provisions of the Privacy Act to ensure the integrity of investigatory 
and adjudicatory records. As noted in the NPRM, the exemptions taken 
here apply in ``limited circumstances,'' only to the extent information 
in this system comes within the scope of 5 U.S.C. 552a(k)(1) and (2).

Executive Orders 12866, 13563, 13771--Regulatory Review

    In accordance with 5 U.S.C. 552a(j) and 552a(k), this action is 
subject to rulemaking procedures, which give 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 regulation 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 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 regulation 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

[[Page 64200]]

Unfunded Mandates Reform Act of 1995.

List of Subjects in 28 CFR Part 16

    Administrative practices and procedures, Courts, Freedom of 
information, 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 amends 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 5 U.S.C. 552a(d) is justified for the system of 
records in paragraph (e) of this section for the following reasons:
    (1) In limited circumstances, from subsection (d) when access to 
the records contained in the system of records in paragraph (e) of this 
section 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 subsections (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: November 14, 2019.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States 
Department of Justice.
[FR Doc. 2019-25080 Filed 11-20-19; 8:45 am]
 BILLING CODE 4410-30-P