[Federal Register Volume 85, Number 51 (Monday, March 16, 2020)]
[Proposed Rules]
[Pages 14805-14807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04985]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
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.
========================================================================
Federal Register / Vol. 85, No. 51 / Monday, March 16, 2020 /
Proposed Rules
[[Page 14805]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2019-0046]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/ALL-043 Enterprise Biometric Administrative Records
(EBAR) 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-043
Enterprise Biometric Administrative Records (EBAR) 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 15, 2020.
ADDRESSES: You may submit comments, identified by docket number DHS-
2019-043 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-
0655.
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 questions please contact: Jonathan
R. Cantor, (202-343-1717), 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 ``DHS/ALL-043 Enterprise Biometric
Administrative Records (EBAR) System of Records (SOR).''
This system of records allows the DHS to collect and maintain
administrative and technical records associated with the enterprise
biometric system known as the Automated Biometric Identification System
(IDENT) and its successor information technology system, currently in
development, called the Homeland Advanced Recognition Technology
(HART).
The information is collected by, on behalf of, in support of, or in
cooperation with DHS and its components that may contain personally
identifiable information collected by Federal, state, local, tribal,
foreign, or international agencies, consistent with any applicable
laws, rules, regulations, and information sharing and access agreements
or arrangements.
Component system SORNs and the DHS/ALL-041 Enterprise Biometric
Records (EBR) SORN cover the biometric data itself, but OBIM's
biometric repository generates technical and administrative information
necessary to carry out functions that are not explicitly outlined in
component source-system SORNs. For example, to more accurately identify
individuals and ensure that all encounters are appropriately linked,
IDENT and its successor information technology (IT) system, HART, will
generate, store, and retrieve data by unique numbers or sequence of
numbers and characters. These unique numbers or sequence of numbers and
characters, also known as enumerators, link individuals with their
encounters, biometrics, records, and other data elements. The EBAR SOR
will be used for OBIM analysis and reporting functions in support of
international data sharing efforts, redress functions, and the
reporting and analysis functions of OBIM.
Consistent with DHS's mission, information covered by DHS/ALL-043
EBAR may be shared with 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. In
addition, DHS may share information with appropriate Federal, state,
local, tribal, territorial, foreign, or international government
agencies consistent with the routine uses set forth in the EBAR system
of records notice.
Additionally, DHS is issuing this Notice of Proposed Rulemaking to
exempt this system of records from certain provisions of the Privacy
Act. The system of records notice is published elsewhere in this
Federal Register. This newly established system will be included in
DHS's inventory of record systems.
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 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, 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 certain provisions of the Privacy Act. If an agency claims
an exemption,
[[Page 14806]]
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-043 Enterprise Biometric Administrative Records System
of Records. Some information in this system of records relates to
official DHS national security, law enforcement, 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;
avoid disclosure of insider threat techniques; protect the identities
and physical safety of confidential informants and law enforcement
personnel; ensure DHS's ability to obtain information from third
parties and other sources; protect the privacy of third parties; and
safeguard classified information. 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 this
system and the overall law enforcement process, the applicable
exemptions may be waived on a case by case basis.
A notice of system of records DHS/ALL-043 Enterprise Biometric
Administrative Records 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 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, the following new paragraph
84:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
84. The DHS/ALL-043 Enterprise Biometric Administrative Records
(EBAR) System of Records consists of electronic and paper records and
will be used by DHS and its components. The DHS/ALL-043 EBAR System of
Records covers information held by DHS in connection with various
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
system of records covers 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), (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)((1), (k)(2), and (k)(5), 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).
Where a record received from another system has been exempted in
that source system under 5 U.S.C. 552a(j)(2), 5 U.S.C. 552a(k)(1),
(k)(2), and (k)(5), 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 and 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 and 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 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
providing access or permitting amendment 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 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
[[Page 14807]]
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 under seal and could result in disclosure of investigative
techniques, procedures, and evidence.
(i) 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. 2020-04985 Filed 3-13-20; 8:45 am]
BILLING CODE 9110-9B-P