Privacy Act of 1974: Implementation of Exemptions; U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, Customs and Border Protection-001 Alien File, Index, and National File Tracking System of Records, 34177-34180 [2011-14486]
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34177
Proposed Rules
Federal Register
Vol. 76, No. 113
Monday, June 13, 2011
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.
DEPARTMENT OF LABOR
5 CFR Chapter XLII
20 CFR Chapters IV, V, VI, VII, and IX
29 CFR Subtitle A and Chapters II, IV,
V, VII, and XXV
30 CFR Chapter I
41 CFR Chapters 50, 60, and 61
48 CFR Chapter 29
Reducing Regulatory Burden;
Retrospective Review Under E.O.
13563
Office of the Secretary, Labor.
ACTION: Request for Information.
AGENCY:
In response to the President’s
Executive Order 13563 on improving
regulation and regulatory review, the
Department of Labor (DOL or the
Department) prepared a preliminary
plan to review its existing significant
regulations. The purpose of this notice
is to invite public comment on the
Department’s preliminary plan.
DATES: Comments must be received on
or before 11:59 p.m. (EDST) on July 1,
2011.
ADDRESSES: You may submit comments
through the Department’s Regulations
Portal at https://dolregs.ideascale.com.
All comments will be available for
public inspection at https://
dolregs.ideascale.com.
SUMMARY:
e.
christi cunningham, Associate Assistant
Secretary for Regulatory Affairs, U.S.
Department of Labor, 200 Constitution
Avenue, NW., Room S–2312,
Washington, DC 20210,
cunningham.christi@dol.gov, (202) 693–
5959 (this is not a toll-free number).
Individuals with hearing impairments
may call 1–800–877–8339 (TTY/TDD).
SUPPLEMENTARY INFORMATION: On
January 18, 2011, President Obama
issued Executive Order 13563,
‘‘Improving Regulation and Regulatory
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FOR FURTHER INFORMATION CONTACT:
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Review.’’ The Order explains the
Administration’s goal of creating a
regulatory system that protects ‘‘public
health, welfare, safety, and our
environment while promoting economic
growth, innovation, competitiveness,
and job creation’’ while using ‘‘the best,
most innovative, and least burdensome
tools to achieve regulatory ends.’’ The
Executive Order requires agencies to
develop and submit a preliminary plan
within 120 days from the January 18
issuance date that explains how each
agency will review existing significant
regulations to identify whether any
regulations may be made more effective
or less burdensome.
On May 26, 2011, the Department
published its preliminary plan (https://
www.whitehouse.gov/21stcenturygov/
actions/21st-century-regulatory-system).
To ensure that the plan meets the
objectives of the Executive Order and to
benefit from the expertise of the
Department’s regulated communities,
academia and the public, the
Department is now requesting public
comments on the preliminary plan.
To facilitate receipt of public
comments, the Department has
established an Internet portal
specifically designed to capture your
input and suggestions, https://
dolregs.ideascale.com. By visiting the
portal, you can review the Department’s
preliminary plan; provide input; and
review suggestions and comments
submitted by other interested parties.
The Department is specifically seeking
comments in the following areas:
• Rules currently under consideration
for retrospective analysis.
• Development of a strong, ongoing
culture of retrospective analysis and
strengthening internal review expertise.
• Factors and processes that will be
used in setting priorities.
• Plans for retrospective analysis,
revisiting and revising rules and
coordinating with other Federal
agencies.
• Metrics used to evaluate
regulations, ensuring availability of data
and incorporation of experimental
design.
The portal will be open to receive
comments from June 2, 2011 through
July 1, 2011.
When providing input, the
Department requests that commenters
provide as much detail as possible and
provide empirical evidence and data to
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support responses, whenever possible.
The Department will consider public
comments as it finalizes its plan for
Retrospective Analysis of Existing
Rules. The Department is issuing this
request solely to seek useful information
as it develops its review plan. While
responses to this request do not bind the
Department to any further actions
related to the response, all submissions
will be made available to the public on
https://dolregs.ideascale.com.
Authority: E.O. 13653, 76 FR 3821, Jan. 21,
2011; E.O. 12866, 58 FR 51735, Oct. 4, 1993.
Dated: June 7, 2011.
e. christi cunningham,
Associate Assistant Secretary for Regulatory
Affairs.
[FR Doc. 2011–14585 Filed 6–10–11; 8:45 am]
BILLING CODE P
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2011–0047]
Privacy Act of 1974: Implementation of
Exemptions; U.S. Citizenship and
Immigration Services, Immigration and
Customs Enforcement, Customs and
Border Protection—001 Alien File,
Index, and National File Tracking
System of Records
Privacy Office, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Department of Homeland
Security is giving concurrent notice of
an updated system of records pursuant
to the Privacy Act of 1974 for the
Department of Homeland Security
United States Citizenship and
Immigration Services, Immigration and
Customs Enforcement, and Customs and
Border Protection—001 Alien File,
Index, and National File Tracking
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. The legacy final rule (28
CFR 16.99) exempting the Immigration
and Naturalization Service A–File and
Central Index System, JUSTICE/INS–
SUMMARY:
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001A legacy system of records from
certain portions of the Privacy Act
remains in effect until publication of a
final rule for this system by the
Department.
DATES: Comments must be received on
or before July 13, 2011.
ADDRESSES: You may submit comments,
identified by docket number DHS–
2011–0047, by one of the following
methods:
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 703–483–2999.
• Mail: Mary Ellen Callahan, Chief
Privacy Officer, Privacy Office,
Department of Homeland Security,
Washington, DC 20528.
• Instructions: All submissions
received must include the agency name
and docket number for this rulemaking.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
• Docket: For access to the docket to
read background documents or
comments received go to https://
www.regulations.gov.
Instructions: All submissions received
must include the agency name and
docket number for this notice. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For
general questions please contact Donald
K. Hawkins, Privacy Officer, U.S.
Citizenship and Immigration Services,
20 Massachusetts Ave., NW.,
Washington, DC 20529. For privacy
issues please contact Mary Ellen
Callahan, Chief Privacy Officer, Privacy
Office, Department of Homeland
Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The Department of Homeland
Security (DHS) implements U.S.
immigration law and policy through the
U.S. Citizenship and Immigration
Service’s (USCIS) processing and
adjudication of applications and
petitions submitted for citizenship,
asylum, and other immigration benefits.
USCIS also supports national security
by preventing individuals from
fraudulently obtaining immigration
benefits and by denying applications
from individuals who pose national
security or public safety threats. U.S.
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immigration policy and law is also
implemented through U.S. Immigration
and Customs Enforcement’s (ICE) law
enforcement activities and U.S. Customs
and Border Protection’s (CBP)
inspection and border protection
processes.
The Alien File (A–File), Index, and
National File Tracking System of
Records is the official record system that
contains information regarding
transactions involving an individual as
he/she passes through the U.S.
immigration and inspection process.
The DHS/USCIS–ICE–CBP—001 Alien
File, Index, and National File Tracking
System of Records contains personally
identifiable information (PII) such as the
individual’s name, Alien Registration
Number (A–Number), receipt number,
date and place of birth, date and port of
entry, as well as the location of each
official A–File. It may also contain other
personal identifiers such as an
individual’s social security number.
Some records contained in the DHS/
USCIS–ICE–CBP—001 Alien File, Index,
and National File Tracking System of
Records are derived from separate
systems of record, in which case the
system of records notice pertaining to
the originating system would govern the
treatment of those records. Previously,
the legacy agency Immigration and
Naturalization Services (INS) collected
and maintained information concerning
all of these immigration and inspection
interactions. Since the formation of
DHS, however, immigration
responsibilities have been divided
among USCIS, ICE, and CBP. While
USCIS is the custodian of the A–File, all
three components create and use A–
Files.
A notice detailing this system of
records was last published in the
Federal Register on January 16, 2007, as
the DHS/USCIS–001 Alien File and
Central Index System (CIS), (72 FR
1755).
DHS is updating the DHS/USCIS–001
Alien File and Central Index System of
Records to be renamed DHS/USCIS–
ICE–CBP—001 Alien File, Index, and
National File Tracking System of
Records to include the following
substantive changes: (1) The addition of
thirteen routine uses and updates to
other routine uses to allow DHS to share
information from the system; (2) an
update to the classification level of the
system and to provide notice that the
system may contain classified records;
and (3) a proposed exemption from
certain provisions of the Privacy Act for
records that are classified.
DHS is renaming this system in order
to provide a better description of the
types of records that are maintained in
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this system of records. These records
may be maintained in paper or
electronic format, but the uses and
protections outlined in the notice do not
change because of the format or the
specific IT system in which they are
maintained. DHS has provided more
explicit notice on the specific IT
systems where these types of records
may exist under ‘‘Location.’’
Routine Use changes (the letter in
parentheses corresponds to the Routine
Use): DHS has added thirteen new
routine uses and modified others in
order to allow DHS to release system
information:
(A) Updated: To include DHS as an
additional party for litigation in the
release of information to the Department
of Justice (DOJ);
(D) New: To an agency, organization,
or individuals for the purpose of
performing audits or oversight as
authorized by law;
(F) Updated: To include interns and
students working on assignments for
DHS;
(I) New: To courts for immigration,
civil, or criminal proceedings;
(K) New: To DOJ or other Federal
agencies when conducting litigation to
assist in development of the agency’s
legal and/or policy position;
(L) Updated: To include sharing with
international organizations about an
alien or an enforcement operation with
transnational implications;
(P) New: To a government
organization in regards to hiring or
retention of an individual where failure
to disclose information on an individual
is likely to create a security risk;
(Q) Updated: Rewritten to provide
better clarification on when information
is released to current or prospective
employers;
(T) New: To Congress during the
private immigration relief legislation
process;
(U) Updated: To government agencies
to assist in the collection of debts;
(V) Updated: To third parties posting
immigration bonds;
(BB) New: To third parties when an
individual will be released from DHS
custody to assist with arranging housing
or medical care;
(CC) New: To domestic government
agencies when an individual will be
released from DHS custody and there
are concerns related to health and
safety;
(DD) New: To foreign governments to
coordinate removal of individuals;
(EE) New: To law enforcement
agencies for de-conflicting
investigations and other coordination of
law enforcement activities;
(FF) New: To custodial agencies to
place an immigration detainer on an
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individual or to facilitate the transfer of
custody of the individual from DHS to
that agency;
(GG) New: To government agencies to
confirm the location, custodial status,
removal or voluntary departure of an
alien in order to facilitate the custody,
care and/or legal rights of the
individual’s minor children;
(HH) New: To government agencies to
assist in making determinations of
redress;
(II) New: To share information from
the system on a case-by-case basis with
the news media or public.
The latter sharing, to the news media
or public, would be done only with the
approval of the DHS Chief Privacy
Officer, who will weigh the public
interest in receiving the information
against the privacy interests of the
individual to whom the information
pertains, when the disclosure is
necessary to preserve confidence in the
integrity of DHS or demonstrate the
accountability of DHS personnel.
Classification level: DHS has updated
the SORN to indicate that both
classified and unclassified information
may be maintained in the A–File, as
such DHS is providing a concurrent
notice of proposed rulemaking pursuant
to the Privacy Act of 1974 for the DHS/
USCIS–ICE–CBP—001 Alien File, Index,
and National File Tracking System of
Records to include an exemption for
classified information in addition to the
existing law enforcement information
exemption. The proposed rule extends
the Privacy Act exemption to classified
information and then re-publishes the
existing exemptions claimed for the
legacy JUSTICE/INS–001A A-File and
CIS, (66 FR 46812). Generally, USCIS,
ICE, and CBP are not the originators of
the classified materials maintained in
some A-Files. DHS, therefore, would
rely upon the Privacy Act exemptions
claimed by the system of records from
which the classified material originated.
By issuing this particular exemption,
DHS is providing further transparency
about the existence of classified material
in this system of records. All of the
exemptions DHS is proposing are
standard law enforcement and national
security exemptions exercised by a large
number of Federal law enforcement and
intelligence agencies. Until DHS
publishes a final rule exempting the
system from certain portions of the
Privacy Act, the legacy final rule
exempting the JUSTICE/INS–001A AFile and CIS, (66 FR 46812) legacy
system of records from certain portions
of the Privacy Act remains in effect for
this system of records.
Pursuant to Public Law 107–296,
Homeland Security Act of 2002, Section
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804 Savings Provisions, and by
reference 28 CFR Appendix C to part 16,
subpart E, pertaining to the INS A-File
and CIS, JUSTICE/INS–001A (66 FR
46812) system of records notice, the
records and information in this system
are exempt from 5 U.S.C. 552a (c)(3) and
(4), (d), (e)(1), (2), and (3), (e)(4)(G) and
(H), (e)(5) and (8), and (g) of the Privacy
Act. These exemptions apply only to the
extent that records in the system are
subject to exemption pursuant to 5
U.S.C. 552a (j)(2) and (k)(2).
Administrative changes: In addition
to the above mentioned substantive
changes to this system of records notice,
DHS has updated the categories of
individuals and categories of records so
that they are more clearly defined.
Consistent with DHS’s statutory
information sharing mission,
information stored in the DHS/USCIS–
ICE–CBP—001 Alien File, Index, and
National File Tracking System of
Records may be shared with other DHS
components, as well as appropriate
Federal, state, local, Tribal, foreign, or
international government agencies. This
sharing will take place only after DHS
determines that the receiving
component or agency has a need to
know the information to carry out
national security, law enforcement,
immigration, intelligence, or other
functions consistent with the purposes
of this system of records and the routine
uses set forth in this system of records
notice.
II. Privacy Act
The Privacy Act embodies fair
information practice principles in a
statutory framework governing the
means by which the U.S. Government
collects, maintains, uses, and
disseminates personally identifiable
information. 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. As a matter of
policy, DHS extends administrative
Privacy Act protections to all
individuals where systems of records
maintain information on U.S. citizens,
lawful permanent residents, and
visitors.
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
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34179
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/USCIS–ICE–CBP—001 Alien
File, Index, and National File Tracking
System of Records. Some information in
DHS/USCIS–ICE–CBP—001 Alien File,
Index, and National File Tracking
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’
ability to obtain information from third
parties and other sources; to protect the
privacy of third parties; and to safeguard
classified information. Disclosure of
information to the subject of the inquiry
could also permit the subject to avoid
detection or apprehension.
The exemptions proposed here are
standard law enforcement and national
security exemptions exercised by a large
number of Federal law enforcement and
intelligence agencies. In appropriate
circumstances, where 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 System of Records Notice for DHS/
USCIS–ICE–CBP—001 Alien File, Index,
and National File Tracking 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
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.
Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
2. Add at the end of Appendix C to
part 5, the following new paragraph
‘‘55’’:
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Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
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*
*
*
*
*
55. DHS/USCIS–ICE–CBP—001 Alien File,
Index, and National File Tracking System of
Records consists of electronic and paper
records and will be used by USCIS, ICE, and
CBP. DHS/USCIS–ICE–CBP—001 Alien File,
Index, and National File Tracking 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 thereunder; and national
security and intelligence activities. DHS/
USCIS–ICE–CBP—001 Alien File, Index, and
National File Tracking 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,
territorial, foreign, or international
government agencies. The Secretary of
Homeland Security has exempted this system
from the following provisions of the Privacy
Act, subject to limitations set forth in 5
U.S.C. 552a(c)(3) and (c)(4): (d); (e)(1), (e)(2),
(e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5),
(e)(8), (e)(12); (f); (g)(1); and (h) pursuant to
5 U.S.C. 552a(j)(2). Additionally, the
Secretary of Homeland Security has
exempted this system from the following
provisions of the Privacy Act, subject to
limitations set forth in 5 U.S.C. 552a(c)(3);
(d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f)
pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
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) 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 as well as the recipient agency.
Disclosure of the accounting would therefore
present a serious impediment to law
enforcement efforts and/or 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.
(b) From subsection (d) (Access to Records)
because access 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 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
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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, DHS employees’
identities, 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 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 (e)(12) (Computer
Matching) if the agency is a recipient agency
or a source agency in a matching program
with a non-Federal agency, with respect to
any establishment or revision of a matching
program, at least 30 days prior to conducting
such program, publish in the Federal
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Register notice of such establishment or
revision.
(j) From subsection (g)(1) (Civil Remedies)
to the extent that the system is exempt from
other specific subsections of the Privacy Act.
(k) From subsection (h) (Legal Guardians)
the parent of any minor, or the legal guardian
of any individual who has been declared to
be incompetent due to physical or mental
incapacity or age by a court of competent
jurisdiction, may act on behalf of the
individual.
Dated: May 27, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. 2011–14486 Filed 6–10–11; 8:45 am]
BILLING CODE 9111–97–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Doc. AMS–NOP–11–0002; NOP–11–02]
National Organic Program; Notice of
Draft Guidance for Accredited
Certifying Agents and Certified
Operations
Agricultural Marketing Service,
USDA.
ACTION: Notice of Availability With
Request For Comments.
AGENCY:
The National Organic
Program (NOP) is announcing the
availability of four draft guidance
documents intended for use by
accredited certifying agents and
certified operations. The draft guidance
documents are entitled as follows: ‘‘The
Use of Kelp in Organic Livestock Feed
(NOP 5027)’’; ‘‘Responding to Results
from Pesticide Residue Testing (NOP
5028)’’; ‘‘Seeds, Annual Seedlings, and
Planting Stock in Organic Crop
Production (NOP 5029)’’; and
‘‘Evaluating Allowed Ingredients and
Sources of Vitamins and Minerals For
Organic Livestock Feed, Feed
Supplements, and Feed Additives (NOP
5030)’’.
These draft guidance documents are
intended to inform the public of NOP’s
current thinking on these topics. A
notice of availability of final guidance
on these topics will be issued upon their
final approval. Once finalized, these
guidance documents will be available
from the NOP through ‘‘The Program
Handbook: Guidance and Instructions
for Accredited Certifying Agents (ACAs)
and Certified Operations.
DATES: To ensure that NOP considers
your comment on this draft guidance
before it begins work on the final
SUMMARY:
E:\FR\FM\13JNP1.SGM
13JNP1
]]>Agencies
[Federal Register Volume 76, Number 113 (Monday, June 13, 2011)]
[Proposed Rules]
[Pages 34177-34180]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14486]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2011-0047]
Privacy Act of 1974: Implementation of Exemptions; U.S.
Citizenship and Immigration Services, Immigration and Customs
Enforcement, Customs and Border Protection--001 Alien File, Index, and
National File Tracking System of Records
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security is giving concurrent
notice of an updated system of records pursuant to the Privacy Act of
1974 for the Department of Homeland Security United States Citizenship
and Immigration Services, Immigration and Customs Enforcement, and
Customs and Border Protection--001 Alien File, Index, and National File
Tracking 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. The legacy final rule (28 CFR 16.99) exempting the
Immigration and Naturalization Service A-File and Central Index System,
JUSTICE/INS-
[[Page 34178]]
001A legacy system of records from certain portions of the Privacy Act
remains in effect until publication of a final rule for this system by
the Department.
DATES: Comments must be received on or before July 13, 2011.
ADDRESSES: You may submit comments, identified by docket number DHS-
2011-0047, by one of the following methods:
Federal e-Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 703-483-2999.
Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
Instructions: All submissions received must include the
agency name and docket number for this rulemaking. All comments
received will be posted without change to https://www.regulations.gov,
including any personal information provided.
Docket: For access to the docket to read background
documents or comments received go to https://www.regulations.gov.
Instructions: All submissions received must include the agency name
and docket number for this notice. All comments received will be posted
without change to https://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For general questions please contact
Donald K. Hawkins, Privacy Officer, U.S. Citizenship and Immigration
Services, 20 Massachusetts Ave., NW., Washington, DC 20529. For privacy
issues please contact Mary Ellen Callahan, Chief Privacy Officer,
Privacy Office, Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The Department of Homeland Security (DHS) implements U.S.
immigration law and policy through the U.S. Citizenship and Immigration
Service's (USCIS) processing and adjudication of applications and
petitions submitted for citizenship, asylum, and other immigration
benefits. USCIS also supports national security by preventing
individuals from fraudulently obtaining immigration benefits and by
denying applications from individuals who pose national security or
public safety threats. U.S. immigration policy and law is also
implemented through U.S. Immigration and Customs Enforcement's (ICE)
law enforcement activities and U.S. Customs and Border Protection's
(CBP) inspection and border protection processes.
The Alien File (A-File), Index, and National File Tracking System
of Records is the official record system that contains information
regarding transactions involving an individual as he/she passes through
the U.S. immigration and inspection process. The DHS/USCIS-ICE-CBP--001
Alien File, Index, and National File Tracking System of Records
contains personally identifiable information (PII) such as the
individual's name, Alien Registration Number (A-Number), receipt
number, date and place of birth, date and port of entry, as well as the
location of each official A-File. It may also contain other personal
identifiers such as an individual's social security number. Some
records contained in the DHS/USCIS-ICE-CBP--001 Alien File, Index, and
National File Tracking System of Records are derived from separate
systems of record, in which case the system of records notice
pertaining to the originating system would govern the treatment of
those records. Previously, the legacy agency Immigration and
Naturalization Services (INS) collected and maintained information
concerning all of these immigration and inspection interactions. Since
the formation of DHS, however, immigration responsibilities have been
divided among USCIS, ICE, and CBP. While USCIS is the custodian of the
A-File, all three components create and use A-Files.
A notice detailing this system of records was last published in the
Federal Register on January 16, 2007, as the DHS/USCIS-001 Alien File
and Central Index System (CIS), (72 FR 1755).
DHS is updating the DHS/USCIS-001 Alien File and Central Index
System of Records to be renamed DHS/USCIS-ICE-CBP--001 Alien File,
Index, and National File Tracking System of Records to include the
following substantive changes: (1) The addition of thirteen routine
uses and updates to other routine uses to allow DHS to share
information from the system; (2) an update to the classification level
of the system and to provide notice that the system may contain
classified records; and (3) a proposed exemption from certain
provisions of the Privacy Act for records that are classified.
DHS is renaming this system in order to provide a better
description of the types of records that are maintained in this system
of records. These records may be maintained in paper or electronic
format, but the uses and protections outlined in the notice do not
change because of the format or the specific IT system in which they
are maintained. DHS has provided more explicit notice on the specific
IT systems where these types of records may exist under ``Location.''
Routine Use changes (the letter in parentheses corresponds to the
Routine Use): DHS has added thirteen new routine uses and modified
others in order to allow DHS to release system information:
(A) Updated: To include DHS as an additional party for litigation
in the release of information to the Department of Justice (DOJ);
(D) New: To an agency, organization, or individuals for the purpose
of performing audits or oversight as authorized by law;
(F) Updated: To include interns and students working on assignments
for DHS;
(I) New: To courts for immigration, civil, or criminal proceedings;
(K) New: To DOJ or other Federal agencies when conducting
litigation to assist in development of the agency's legal and/or policy
position;
(L) Updated: To include sharing with international organizations
about an alien or an enforcement operation with transnational
implications;
(P) New: To a government organization in regards to hiring or
retention of an individual where failure to disclose information on an
individual is likely to create a security risk;
(Q) Updated: Rewritten to provide better clarification on when
information is released to current or prospective employers;
(T) New: To Congress during the private immigration relief
legislation process;
(U) Updated: To government agencies to assist in the collection of
debts;
(V) Updated: To third parties posting immigration bonds;
(BB) New: To third parties when an individual will be released from
DHS custody to assist with arranging housing or medical care;
(CC) New: To domestic government agencies when an individual will
be released from DHS custody and there are concerns related to health
and safety;
(DD) New: To foreign governments to coordinate removal of
individuals;
(EE) New: To law enforcement agencies for de-conflicting
investigations and other coordination of law enforcement activities;
(FF) New: To custodial agencies to place an immigration detainer on
an
[[Page 34179]]
individual or to facilitate the transfer of custody of the individual
from DHS to that agency;
(GG) New: To government agencies to confirm the location, custodial
status, removal or voluntary departure of an alien in order to
facilitate the custody, care and/or legal rights of the individual's
minor children;
(HH) New: To government agencies to assist in making determinations
of redress;
(II) New: To share information from the system on a case-by-case
basis with the news media or public.
The latter sharing, to the news media or public, would be done only
with the approval of the DHS Chief Privacy Officer, who will weigh the
public interest in receiving the information against the privacy
interests of the individual to whom the information pertains, when the
disclosure is necessary to preserve confidence in the integrity of DHS
or demonstrate the accountability of DHS personnel.
Classification level: DHS has updated the SORN to indicate that
both classified and unclassified information may be maintained in the
A-File, as such DHS is providing a concurrent notice of proposed
rulemaking pursuant to the Privacy Act of 1974 for the DHS/USCIS-ICE-
CBP--001 Alien File, Index, and National File Tracking System of
Records to include an exemption for classified information in addition
to the existing law enforcement information exemption. The proposed
rule extends the Privacy Act exemption to classified information and
then re-publishes the existing exemptions claimed for the legacy
JUSTICE/INS-001A A-File and CIS, (66 FR 46812). Generally, USCIS, ICE,
and CBP are not the originators of the classified materials maintained
in some A-Files. DHS, therefore, would rely upon the Privacy Act
exemptions claimed by the system of records from which the classified
material originated. By issuing this particular exemption, DHS is
providing further transparency about the existence of classified
material in this system of records. All of the exemptions DHS is
proposing are standard law enforcement and national security exemptions
exercised by a large number of Federal law enforcement and intelligence
agencies. Until DHS publishes a final rule exempting the system from
certain portions of the Privacy Act, the legacy final rule exempting
the JUSTICE/INS-001A A-File and CIS, (66 FR 46812) legacy system of
records from certain portions of the Privacy Act remains in effect for
this system of records.
Pursuant to Public Law 107-296, Homeland Security Act of 2002,
Section 804 Savings Provisions, and by reference 28 CFR Appendix C to
part 16, subpart E, pertaining to the INS A-File and CIS, JUSTICE/INS-
001A (66 FR 46812) system of records notice, the records and
information in this system are exempt from 5 U.S.C. 552a (c)(3) and
(4), (d), (e)(1), (2), and (3), (e)(4)(G) and (H), (e)(5) and (8), and
(g) of the Privacy Act. These exemptions apply only to the extent that
records in the system are subject to exemption pursuant to 5 U.S.C.
552a (j)(2) and (k)(2).
Administrative changes: In addition to the above mentioned
substantive changes to this system of records notice, DHS has updated
the categories of individuals and categories of records so that they
are more clearly defined.
Consistent with DHS's statutory information sharing mission,
information stored in the DHS/USCIS-ICE-CBP--001 Alien File, Index, and
National File Tracking System of Records may be shared with other DHS
components, as well as appropriate Federal, state, local, Tribal,
foreign, or international government agencies. This sharing will take
place only after DHS determines that the receiving component or agency
has a need to know the information to carry out national security, law
enforcement, immigration, intelligence, or other functions consistent
with the purposes of this system of records and the routine uses set
forth in this system of records notice.
II. Privacy Act
The Privacy Act embodies fair information practice principles in a
statutory framework governing the means by which the U.S. Government
collects, maintains, uses, and disseminates personally identifiable
information. 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. As a matter of policy, DHS extends
administrative Privacy Act protections to all individuals where systems
of records maintain information on U.S. citizens, lawful permanent
residents, and visitors.
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/USCIS-ICE-CBP--001 Alien File, Index, and National File
Tracking System of Records. Some information in DHS/USCIS-ICE-CBP--001
Alien File, Index, and National File Tracking 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' ability to obtain information
from third parties and other sources; to protect the privacy of third
parties; and to safeguard classified information. Disclosure of
information to the subject of the inquiry could also permit the subject
to avoid detection or apprehension.
The exemptions proposed here are standard law enforcement and
national security exemptions exercised by a large number of Federal law
enforcement and intelligence agencies. In appropriate circumstances,
where 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 System of Records Notice for DHS/USCIS-ICE-CBP--001 Alien File,
Index, and National File Tracking 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
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. Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
2. Add at the end of Appendix C to part 5, the following new
paragraph ``55'':
[[Page 34180]]
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
55. DHS/USCIS-ICE-CBP--001 Alien File, Index, and National File
Tracking System of Records consists of electronic and paper records
and will be used by USCIS, ICE, and CBP. DHS/USCIS-ICE-CBP--001
Alien File, Index, and National File Tracking 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 thereunder; and national security and
intelligence activities. DHS/USCIS-ICE-CBP--001 Alien File, Index,
and National File Tracking 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,
territorial, foreign, or international government agencies. The
Secretary of Homeland Security has exempted this system from the
following provisions of the Privacy Act, subject to limitations set
forth in 5 U.S.C. 552a(c)(3) and (c)(4): (d); (e)(1), (e)(2),
(e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12);
(f); (g)(1); and (h) pursuant to 5 U.S.C. 552a(j)(2). Additionally,
the Secretary of Homeland Security has exempted this system from the
following provisions of the Privacy Act, subject to limitations set
forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I); and (f) pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
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) 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
as well as the recipient agency. Disclosure of the accounting would
therefore present a serious impediment to law enforcement efforts
and/or 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.
(b) From subsection (d) (Access to Records) because access 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 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.
(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, DHS employees' identities, 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 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 (e)(12) (Computer Matching) if the agency is
a recipient agency or a source agency in a matching program with a
non-Federal agency, with respect to any establishment or revision of
a matching program, at least 30 days prior to conducting such
program, publish in the Federal Register notice of such
establishment or revision.
(j) From subsection (g)(1) (Civil Remedies) to the extent that
the system is exempt from other specific subsections of the Privacy
Act.
(k) From subsection (h) (Legal Guardians) the parent of any
minor, or the legal guardian of any individual who has been declared
to be incompetent due to physical or mental incapacity or age by a
court of competent jurisdiction, may act on behalf of the
individual.
Dated: May 27, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-14486 Filed 6-10-11; 8:45 am]
BILLING CODE 9111-97-P
