Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-041 External Biometric Records (EBR) System of Records, 17766-17768 [2018-08454]
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17766
Proposed Rules
Federal Register
Vol. 83, No. 79
Tuesday, April 24, 2018
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 HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2017–0040]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security/ALL–041 External Biometric
Records (EBR) System of Records
Privacy Office, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Department of Homeland
Security (DHS) is giving concurrent
notice of a new system of records
pursuant to the Privacy Act of 1974 for
the ‘‘Department of Homeland Security/
ALL–041 External Biometric Records
(EBR) 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.
SUMMARY:
Comments must be received on
or before May 24, 2018.
ADDRESSES: You may submit comments,
identified by docket number DHS–
2017–0040, by one of the following
methods:
• Federal e-Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 202–343–4010.
• Mail: Philip S. Kaplan, 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–2017–0040. 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
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DATES:
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comments received, go to https://
www.regulations.gov.
For
general and privacy questions please
contact: Philip S. Kaplan, privacy@
hq.dhs.gov, (202–343–1717), Chief
Privacy Officer, Privacy Office,
Department of Homeland Security,
Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Background
In accordance with the Privacy Act of
1974, 5 U.S.C. 552a, DHS proposes a
Privacy Act exemption for a new DHS
system of records titled, ‘‘DHS/ALL–041
External Biometric Records (EBR)
System of Records.’’
DHS has developed this system of
records to receive, maintain, and
disseminate biometric and associated
biographic information from non-DHS
entities (not already covered by a
component system of records notices
(SORNs)), both foreign and domestic, for
the following purposes pursuant to
formal or informal information sharing
agreements or arrangements (‘‘external
information’’), or with the express
approval of the entity from which the
Department received biometric and
associated biographic information: Law
enforcement; national security;
immigration screening; border
enforcement; intelligence; national
defense; and background investigations
relating to national security positions,
credentialing, and certain positions of
public trust, consistent with applicable
DHS authorities.
In 2007, DHS published the
Automated Biometric Identification
System (IDENT) SORN. Since then, the
Department’s Privacy Act framework
has evolved as the Department has
matured and the complexity of the
IDENT system increased. DHS
Component SORNs now govern the
function and use of the biometrics
records collected by each component.
However, the Department still requires
a SORN to cover biometrics received
from non-DHS entities. Therefore, DHS
is establishing DHS/ALL–041 External
Biometric Records (EBR) System of
Records, which governs the
maintenance and use of biometrics and
associated biographic information
received from non-DHS entities that are
not covered by an existing Component
SORNs. In addition, a forthcoming
technical SORN will cover the limited
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information created by the IDENT
system. Eventually, both this EBR SORN
and the planned technical SORN will
replace the IDENT SORN. In the
meantime, to avoid any gap in SORN
coverage for biometrics and associated
biographic information, the EBR and
IDENT SORNs will co-exist. After the
technical SORN is published, DHS will
rescind the IDENT SORN by publishing
a notice of rescindment in the Federal
Register.
External information is collected by
non-DHS entities, including the
Department of Defense (DoD), the
Department of Justice (DOJ), State and
local law enforcement authorities, or
foreign governments. External
information shared with DHS includes
biometric (including latent fingerprints)
and associated biographic information
that may be used by DHS for the
following purposes: Law enforcement;
national security; immigration
screening; border enforcement;
intelligence; national defense; and
background investigations relating to
national security positions,
credentialing, and certain positions of
public trust, consistent with applicable
DHS authorities.
DHS also maintains this information
to support its information sharing
agreements and arrangements with
foreign partners to: Prevent travelers
from assuming different identities to
fraudulently gain admission or
immigration benefits; identify
individuals who seek to enter the
United States for unauthorized
purposes; identify those who have
committed serious crimes or violated
immigration law; and enable informed
decisions on visas, admissibility, or
other immigration benefits. Such
sharing augments the law enforcement
and border control efforts of both the
United States and its partners.
Additionally, DHS is using this
information in concert with external
partners to facilitate the screening of
refugees in an effort to combat terrorist
travel consistent with DHS’s and
Components’ authorities.
Consistent with DHS’s mission,
information covered by DHS/ALL–041
External Biometric Records 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
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Federal Register / Vol. 83, No. 79 / Tuesday, April 24, 2018 / Proposed Rules
jstallworth on DSKBBY8HB2PROD with PROPOSALS
addition, DHS may share information
with appropriate Federal, State, local,
tribal, territorial, foreign, or
international government agencies from
the providing external entity, consistent
with any applicable laws, rules,
regulations, and information sharing
and access agreements. DHS may share
biometric and associated biographic
information, as permitted pursuant to an
applicable Privacy Act authorized
disclosure, including 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
provisions 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
disseminate 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. 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
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–041 External Biometric
Records (EBR) System of Records, under
5 U.S.C. 552a(j)(2), (k)(2), and (k)(5).
Information in DHS/ALL–041 External
Biometric Records (EBR) System of
Records relates to official DHS law
enforcement, national security,
immigration screening, border
enforcement, intelligence, national
defense, and background investigations
relating to national security positions,
credentialing, and certain positions of
public trust, consistent with applicable
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DHS authorities. 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 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; 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.
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 for DHS/
ALL–041 External Biometric Records
(EBR) 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 is revised 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. Amend Appendix to Part 5 by
adding paragraph 78 to read as follows:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
78. The DHS/ALL–041 External Biometric
Records (EBR) System of Records consists of
electronic and paper records and will be used
by DHS and its components. The DHS/ALL–
041 External Biometric Records (EBR) System
of Records is a repository of information held
by DHS in connection with its several and
varied missions and functions, including the
enforcement of civil and criminal laws;
investigations, inquiries, and proceedings
there under; and national security and
intelligence activities. The DHS/ALL–041
External Biometric Records (EBR) 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,
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17767
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)(5), and (e)(8); (f); and (g)(1) through (5).
Additionally, the Secretary of Homeland
Security, pursuant to 5 U.S.C. 552a(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); and (e)(1), (e)(4)(G),
(e)(4)(H); and (f). When a record received
from another system has been exempted in
that source system under 5 U.S.C. 552a(j)(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) 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 and
Amendment 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.
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Federal Register / Vol. 83, No. 79 / Tuesday, April 24, 2018 / Proposed Rules
(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) and (e)(4)(H),
(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 subsections (g)(1) through (5)
(Civil Remedies) to the extent that the system
is exempt from other specific subsections of
the Privacy Act.
Philip S. Kaplan
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. 2018–08454 Filed 4–23–18; 8:45 am]
BILLING CODE 9110–9B–P
jstallworth on DSKBBY8HB2PROD with PROPOSALS
DEPARTMENT OF ENERGY
10 CFR Part 430
Energy Conservation Program: Energy
Conservation Standards for
Dishwashers, Notification of Petition
for Rulemaking
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
AGENCY:
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Notification of petition for
rulemaking; request for comment.
ACTION:
On March 21, 2018, the
Department of Energy (DOE) received a
petition from the Competitive Enterprise
Institute (CEI) to define a new product
class under the Energy Policy and
Conservation Act (EPCA) for residential
dishwashers. The new product class
would cover dishwashers with a cycle
time of less than one hour from washing
through drying. Through this
notification, DOE seeks comment on the
petition, as well as any data or
information that could be used in DOE’s
determination whether to proceed with
the petition.
DATES: Written comments and
information are requested on or before
June 25, 2018.
ADDRESSES: Interested persons are
encouraged to submit comments,
identified by ‘‘Dishwasher Petition,’’ by
any of the following methods:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Appliance and Equipment
Standards Program, U.S. Department of
Energy, Building Technologies Office,
Mailstop EE–5B, 1000 Independence
Avenue SW, Washington, DC 20585–
0121. If possible, please submit all items
on a compact disc (CD), in which case
it is not necessary to include printed
copies.
Hand Delivery/Courier: Appliance
and Equipment Standards Program, U.S.
Department of Energy, Building
Technologies Office, 950 L’Enfant Plaza
SW, Suite 600, Washington, DC 20024.
Telephone: (202) 586–6636. If possible,
please submit all items on a CD, in
which case it is not necessary to include
printed copies.
Docket: For access to the docket to
read background documents, or
comments received, go to the Federal
eRulemaking Portal at https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Kohl, U.S. Department of
Energy, Office of the General Counsel,
1000 Independence Avenue SW,
Washington, DC 20585. Email:
Elizabeth.Kohl@hq.doe.gov; 202–586–
7796.
SUPPLEMENTARY INFORMATION: The
Administrative Procedure Act (APA), 5
U.S.C. 551 et seq., provides among other
things, that ‘‘[e]ach agency shall give an
interested person the right to petition
for the issuance, amendment, or repeal
of a rule.’’ (5 U.S.C. 553(e)) Pursuant to
this provision of the APA, CEI
petitioned DOE for the issuance of a
new rule, as described in this
SUMMARY:
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Sfmt 4702
notification and set forth below,
verbatim.1 In promulgating this petition
for public comment, the Department of
Energy is seeking views on whether it
should grant the petition and undertake
a rulemaking to consider the proposal
contained in the petition. By seeking
comment on whether to grant this
petition, the Department of Energy takes
no position at this time regarding the
merits of the suggested rulemaking.
On March 21, 2018, CEI petitioned
DOE to initiate a rulemaking to define
a new product class under 42 U.S.C.
6295(q) for residential dishwashers.
(The petition is presented at the end of
this document.) The new product class
would cover dishwashers with a cycle
time of less than one hour from washing
through drying. CEI did not suggest
specific energy and water requirements
for this new product class, stating that
these details could be determined
during the course of the rulemaking. CEI
stated that dishwasher cycle times have
become dramatically longer under
existing DOE energy conservation
standards, and that consumer
satisfaction/utility has dropped as a
result of these longer cycle times. CEI
also provided data regarding the
increase in dishwasher cycle time,
including data that correlated increased
cycle time with DOE’s adoption of
amended efficiency standards for
dishwashers.
CEI cites to section 6295(q) of EPCA
as the authority for DOE to undertake
the requested rulemaking. Section
6295(q) requires that DOE, for a rule
prescribing an energy conservation
standard for a type (or class) of covered
products, specify a level of energy use
or efficiency higher or lower than the
level that applies (or would apply) to
such type (or class) for any group of
covered products that have the same
function or intended use, if DOE
determines that covered products
within such group either: (1) Consume
a different kind of energy from that
consumed by other covered products
within such type (or class); or (2) have
a capacity or other performance-related
feature that other products within such
type (or class) do not have, and such
feature justifies a higher or lower
standard from that which applies (or
will apply) to other products within
such type (or class). In making a
determination under paragraph (q)
concerning whether a performancerelated feature justifies a higher or lower
standard, DOE must consider such
factors as the utility to the consumer of
1 Attachments and data submitted by CEI with its
petition for rulemaking are available in the docket
at https://www.regulations.gov.
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]]>Agencies
[Federal Register Volume 83, Number 79 (Tuesday, April 24, 2018)]
[Proposed Rules]
[Pages 17766-17768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08454]
========================================================================
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. 83, No. 79 / Tuesday, April 24, 2018 /
Proposed Rules
[[Page 17766]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2017-0040]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security/ALL-041 External Biometric Records (EBR) System of
Records
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) is giving
concurrent notice of a new system of records pursuant to the Privacy
Act of 1974 for the ``Department of Homeland Security/ALL-041 External
Biometric Records (EBR) 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 May 24, 2018.
ADDRESSES: You may submit comments, identified by docket number DHS-
2017-0040, by one of the following methods:
Federal e-Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 202-343-4010.
Mail: Philip S. Kaplan, 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-2017-0040. 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 and privacy questions
please contact: Philip S. Kaplan, [email protected], (202-343-1717),
Chief Privacy Officer, Privacy Office, Department of Homeland Security,
Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, DHS
proposes a Privacy Act exemption for a new DHS system of records
titled, ``DHS/ALL-041 External Biometric Records (EBR) System of
Records.''
DHS has developed this system of records to receive, maintain, and
disseminate biometric and associated biographic information from non-
DHS entities (not already covered by a component system of records
notices (SORNs)), both foreign and domestic, for the following purposes
pursuant to formal or informal information sharing agreements or
arrangements (``external information''), or with the express approval
of the entity from which the Department received biometric and
associated biographic information: Law enforcement; national security;
immigration screening; border enforcement; intelligence; national
defense; and background investigations relating to national security
positions, credentialing, and certain positions of public trust,
consistent with applicable DHS authorities.
In 2007, DHS published the Automated Biometric Identification
System (IDENT) SORN. Since then, the Department's Privacy Act framework
has evolved as the Department has matured and the complexity of the
IDENT system increased. DHS Component SORNs now govern the function and
use of the biometrics records collected by each component. However, the
Department still requires a SORN to cover biometrics received from non-
DHS entities. Therefore, DHS is establishing DHS/ALL-041 External
Biometric Records (EBR) System of Records, which governs the
maintenance and use of biometrics and associated biographic information
received from non-DHS entities that are not covered by an existing
Component SORNs. In addition, a forthcoming technical SORN will cover
the limited information created by the IDENT system. Eventually, both
this EBR SORN and the planned technical SORN will replace the IDENT
SORN. In the meantime, to avoid any gap in SORN coverage for biometrics
and associated biographic information, the EBR and IDENT SORNs will co-
exist. After the technical SORN is published, DHS will rescind the
IDENT SORN by publishing a notice of rescindment in the Federal
Register.
External information is collected by non-DHS entities, including
the Department of Defense (DoD), the Department of Justice (DOJ), State
and local law enforcement authorities, or foreign governments. External
information shared with DHS includes biometric (including latent
fingerprints) and associated biographic information that may be used by
DHS for the following purposes: Law enforcement; national security;
immigration screening; border enforcement; intelligence; national
defense; and background investigations relating to national security
positions, credentialing, and certain positions of public trust,
consistent with applicable DHS authorities.
DHS also maintains this information to support its information
sharing agreements and arrangements with foreign partners to: Prevent
travelers from assuming different identities to fraudulently gain
admission or immigration benefits; identify individuals who seek to
enter the United States for unauthorized purposes; identify those who
have committed serious crimes or violated immigration law; and enable
informed decisions on visas, admissibility, or other immigration
benefits. Such sharing augments the law enforcement and border control
efforts of both the United States and its partners. Additionally, DHS
is using this information in concert with external partners to
facilitate the screening of refugees in an effort to combat terrorist
travel consistent with DHS's and Components' authorities.
Consistent with DHS's mission, information covered by DHS/ALL-041
External Biometric Records 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
[[Page 17767]]
addition, DHS may share information with appropriate Federal, State,
local, tribal, territorial, foreign, or international government
agencies from the providing external entity, consistent with any
applicable laws, rules, regulations, and information sharing and access
agreements. DHS may share biometric and associated biographic
information, as permitted pursuant to an applicable Privacy Act
authorized disclosure, including 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 provisions 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 disseminate 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. 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 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-041 External Biometric Records (EBR) System of Records,
under 5 U.S.C. 552a(j)(2), (k)(2), and (k)(5). Information in DHS/ALL-
041 External Biometric Records (EBR) System of Records relates to
official DHS law enforcement, national security, immigration screening,
border enforcement, intelligence, national defense, and background
investigations relating to national security positions, credentialing,
and certain positions of public trust, consistent with applicable DHS
authorities. 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 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; 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.
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 for DHS/ALL-041 External Biometric
Records (EBR) 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 is revised 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.
0
2. Amend Appendix to Part 5 by adding paragraph 78 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
78. The DHS/ALL-041 External Biometric Records (EBR) System of
Records consists of electronic and paper records and will be used by
DHS and its components. The DHS/ALL-041 External Biometric Records
(EBR) System of Records is a repository of information held by DHS
in connection with its several and varied missions and functions,
including the enforcement of civil and criminal laws;
investigations, inquiries, and proceedings there under; and national
security and intelligence activities. The DHS/ALL-041 External
Biometric Records (EBR) 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.
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)(5), and (e)(8); (f); and
(g)(1) through (5). Additionally, the Secretary of Homeland
Security, pursuant to 5 U.S.C. 552a(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); and (e)(1), (e)(4)(G), (e)(4)(H); and (f).
When a record received from another system has been exempted in that
source system under 5 U.S.C. 552a(j)(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) 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 and Amendment 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.
[[Page 17768]]
(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) and (e)(4)(H), (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 subsections (g)(1) through (5) (Civil Remedies) to the
extent that the system is exempt from other specific subsections of
the Privacy Act.
Philip S. Kaplan
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2018-08454 Filed 4-23-18; 8:45 am]
BILLING CODE 9110-9B-P
