[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]


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 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. 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