[Federal Register Volume 85, Number 48 (Wednesday, March 11, 2020)]
[Proposed Rules]
[Pages 14174-14176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04986]


 ========================================================================
 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. 85, No. 48 / Wednesday, March 11, 2020 / 
Proposed Rules  

[[Page 14174]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2019-0062]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL-045 Statistical Immigration Data Production and 
Reporting System of Records

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/ALL-045 
Statistical Immigration Data Production and Reporting System of 
Records'' and this proposed rulemaking. In this proposed rulemaking, 
the Department proposes 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.

DATES: Comments must be received on or before April 10, 2020.

ADDRESSES: You may submit comments, identified by docket number DHS 
2019-0062, 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 DHS-2019-0062. 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 and privacy questions, 
please contact: Jonathan R. Cantor, (202) 343-1717, [email protected], 
Acting Chief Privacy Officer, Privacy Office, Department of Homeland 
Security, Washington, DC 20528-0655.

SUPPLEMENTARY INFORMATION: 

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) proposes to establish a new DHS 
system of records titled, ``Department of Homeland Security/ALL-045 
Statistical Immigration Data Production and Reporting System of 
Records.'' Federal statutes, including the Immigration and Nationality 
Act of 1965, as amended, and the Homeland Security Act of 2002, as 
amended, as well as Executive Orders and congressional mandates, 
require DHS's Office of Immigration Statistics (OIS) to regularly 
prepare an extensive series of analytical and statistical reports on 
border security, immigration enforcement activities, refugee and asylum 
claims, and other immigration events. For instance, in December 2015, 
Congress's explanatory statement accompanying DHS's 2016 appropriations 
legislation specifically directed the DHS Office of Strategy, Policy, 
and Plans (which includes OIS), to report on the ``enforcement 
lifecycle,'' defined as ``the full scope of immigration enforcement 
activities, from encounter to final disposition, including the use of 
prosecutorial discretion.'' Further, Congress directed that ``[a]ll 
data necessary to support a better picture of this lifecycle and the 
Department's effectiveness in enforcing immigration laws shall be 
considered and prioritized, including appropriate data collected by the 
[Executive Office for Immigration Review (EOIR)] at the Department of 
Justice [DOJ].''
    Fulfilling these mandates requires OIS to collect data related to 
the granting of immigration benefits, such as nonimmigrant admissions, 
grants of lawful permanent residence, changes in legal status, 
naturalizations, and information related to the enforcement of 
immigration law, from across DHS and other federal immigration 
agencies. These data contain both personally identifiable information 
(PII) and sensitive PII (SPII). OIS is establishing this system of 
records notice (SORN) to inform the public of its collection and use of 
PII to create its statistical products.
    DHS's immigration Components and other federal immigration agencies 
initially collect this data for operational purposes in accordance to 
their own mission and authorities. While the data that is first 
collected for operational purposes are covered by their respective 
SORNs, OIS is developing its own SORN to cover the records it creates 
and has aggregated as they enter OIS's analytical environment. Once in 
this environment, OIS processes the records in preparation for use in 
statistical analysis. Analyses may include merging of records from 
these distinct data systems to create new records.
    Data within this system of records are intended only for analytical 
and statistical purposes, and are not intended for operational uses. 
This is reflected in the routine uses, which allow for the use of and 
sharing of data in this system of records solely for these purposes.
    Consistent with DHS's information sharing mission, information 
stored in the DHS/ALL-045 Statistical Immigration Data Production and 
Reporting System of Records may be shared with other DHS Components 
that have a need to know the information to carry out their national 
security, law enforcement, immigration, intelligence, or other homeland 
security functions, except for data that the DHS Information Sharing 
and Safeguarding Governance Board (ISSGB) has granted a waiver from 
this requirement on behalf of the Secretary of Homeland Security. In 
addition, DHS/OIS may share information with appropriate federal, 
state, local, tribal, territorial, foreign, or international government 
agencies consistent with the routine uses set forth in this system of 
records notice.
    DHS is issuing this Notice of Proposed Rulemaking to exempt this 
system of records from certain requirements of the Privacy Act.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which Federal Government 
agencies collect, maintain, use, and

[[Page 14175]]

disseminate individuals' records. The Privacy Act 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, an individual is 
defined to encompass U.S. citizens and lawful permanent residents. 
Additionally, and similarly, 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.
    The Privacy Act 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.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/ALL-045 Statistical Immigration Data Production and 
Reporting System of Records. Some information in DHS/ALL-045 
Statistical Immigration Data Production and Reporting System of Records 
relates to official DHS national security, law enforcement, 
immigration, and intelligence activities. These exemptions are needed 
to protect information relating to DHS activities from disclosure to 
subjects or others related to these activities. Specifically, the 
exemptions are required to preclude subjects of these activities from 
frustrating these processes; to avoid disclosure of activity 
techniques; to protect the identities and physical safety of 
confidential informants and law enforcement personnel; to ensure DHS's 
ability to obtain information from third parties and other sources; and 
to protect the privacy of third parties. Disclosure of information to 
the subject of the inquiry could also permit the subject to avoid 
detection or apprehension.
    In appropriate circumstances, when compliance would not appear to 
interfere with or adversely affect the law enforcement purposes of the 
source systems and the overall law enforcement process, the applicable 
exemptions may be waived on a case by case basis.
    A notice of system of records for DHS/ALL-045 Statistical 
Immigration Data Production and Reporting System of Records is also 
published in this issue of the Federal Register.

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 general 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.
* * * * *
0
2. Add, at the end of Appendix C to Part 5, paragraph <``83''> to read 
as follows:

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

* * * * *
    83. The DHS/ALL-045 Statistical Immigration Data Production and 
Reporting System of Records consists of electronic and paper records 
and will be used by DHS and its Components. The DHS/ALL-045 
Statistical Immigration Data Production and Reporting 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-045 Statistical 
Immigration Data Production and Reporting 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.
    For records created and aggregated by DHS OIS, the Secretary of 
Homeland Security, pursuant to 5 U.S.C. 552a(k)(4), 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). In addition to the reasons stated below, the reason for 
exempting the system of records is that disclosure of statistical 
records (including release of accounting for disclosures) would in 
most instances be of no benefit to a particular individual since the 
records do not have a direct effect on a given individual.
    Where a record received from another system has been exempted in 
that source system under 5 U.S.C. 552a(j)(2) or (k)(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 for records derived from 
DHS operational systems 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 
that are derived from records from DHS operational systems 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, including statistics records covered by this 
system that derived from records originating from DHS operational 
systems.
    (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

[[Page 14176]]

investigative efforts and reveal the identities of witnesses, and 
potential witnesses, and confidential informants.

Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2020-04986 Filed 3-10-20; 8:45 am]
 BILLING CODE 9112-FP-P