Privacy Act of 1974; Implementation, 41940-41941 [2019-17363]
Download as PDF
41940
Federal Register / Vol. 84, No. 159 / Friday, August 16, 2019 / Proposed Rules
DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 005–2019]
Privacy Act of 1974; Implementation
Executive Office for
Immigration Review, United States
Department of Justice.
ACTION: Notice of proposed rulemaking.
AGENCY:
In the Notices section of this
issue of the Federal Register, the
Executive Office for Immigration
Review, (EOIR), a component within the
United States Department of Justice
(DOJ or Department), has published a
notice of a new system of records: Office
of the Chief Administrative Hearing
Officer (OCAHO) Case Management
System (CMS), JUSTICE/EOIR–002. In
this notice of proposed rulemaking, the
Department proposes for the reasons
listed below to exempt this system of
records from certain provisions of the
Privacy Act in order to ensure the
integrity of investigatory and
adjudicatory records in cases before
OCAHO. Public comment is invited.
DATES: Send comments by September
16, 2019.
ADDRESSES: You may send comments by
any of the following methods:
• Email: privacy.compliance@
usdoj.gov. To ensure proper handling,
please reference the CPCLO Order No.
in the subject line of the message.
• Fax: 202–307–0693.
• Mail: United States Department of
Justice, Office of Privacy and Civil
Liberties, ATTN: Privacy Analyst, 145 N
Street NE, Suite 8W.300, Washington,
DC 20530. All comments sent via
regular or express mail will be
considered timely if postmarked on the
day the comment period closes. To
ensure proper handling, please
reference the CPCLO Order No. in your
correspondence.
• Federal eRulemaking Portal: https://
www.regulations.gov. When submitting
comments electronically, you must
include the CPCLO Order No. in the
subject box. Please note that electronic
comments must be submitted before
midnight Eastern Daylight Saving Time
on the day the comment period closes,
and the website for comments, https://
www.regulations.gov, will stop receiving
comments at that time. Commenters in
other time zones should adjust the times
for their submission accordingly.
Posting of Public Comments: Please
note that all comments received are
considered part of the public record and
made available for public inspection
online at https://www.regulations.gov
khammond on DSKBBV9HB2PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
15:55 Aug 15, 2019
Jkt 247001
and in the Department’s public docket.
Such information includes any
personally identifying information (such
as name, address, etc.) voluntarily
submitted by the commenter. If you
want to submit personally identifying
information (such as your name,
address, etc.) as part of your comment,
but do not want it to be posted online
or made available in the public docket,
you must include the phrase
‘‘PERSONALLY IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. All personally
identifying information that you do not
want posted online or made available in
the public docket should be placed in
the first paragraph of your comment,
where you should identify what
information you want redacted.
If you want to submit confidential
business information as part of your
comment, but do not want it to be
posted online or made available in the
public docket, you must include the
phrase ‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You must also
prominently identify confidential
business information that you wish to
be redacted within the comment. If a
comment has so much confidential
business information that it cannot be
effectively redacted, all or part of that
comment may not be posted online or
made available in the public docket.
Personally identifying information
and confidential business information
identified and located as set forth above,
will to the extent feasible be redacted,
and the comment, in redacted form, may
be posted online and placed in the
Department’s public docket file. Please
note that the Freedom of Information
Act applies to all comments received. If
you wish to inspect the agency’s public
docket file in person by appointment,
please see the FOR FURTHER INFORMATION
CONTACT section, below.
FOR FURTHER INFORMATION CONTACT:
Marta Rothwarf and Michelle Curry,
Associate General Counsels and CoSenior Component Officials for Privacy,
Office of the General Counsel, Executive
Office for Immigration Review, 5107
Leesburg Pike, Suite 2600, Falls Church,
VA 22041, by email at marta.rothwarf2@
usdoj.gov and michelle.curry@usdoj.gov,
or by facsimile at 703–305–0443.
SUPPLEMENTARY INFORMATION: EOIR
proposes to establish a new system of
records subject to the Privacy Act of
1974, 5 U.S.C. 552a. The proposed
system of records will be used by
OCAHO to facilitate adjudication of its
cases and may include paper and
electronic files maintained by OCAHO.
The records to be maintained in this
PO 00000
Frm 00004
Fmt 4702
Sfmt 4702
new system historically have been
included as part of EOIR–001, Records
and Management Information System.
They are being transferred into this new
system to improve efficiency, improve
records management practices, and
provide better access for parties to
proceedings.
OCAHO Administrative Law Judges
(ALJs) hear cases and adjudicate issues
arising under the provisions of the
Immigration and Nationality Act (INA)
relating to: (1) Knowingly hiring,
recruiting or referring for a fee, or
continuing to employ unauthorized
aliens, failure to comply with
employment eligibility verification
requirements, and requiring indemnity
bonds from employees in violation of
section 274A of the INA (8 U.S.C.
1324a), (2) immigration-related unfair
employment practices in violation of
section 274B of the INA (8 U.S.C.
1324b), and (3) immigration-related
document fraud in violation of section
274C of the INA (8 U.S.C. 1324c).
Complaints under sections 274A and
274C of the INA are filed by the U.S.
Department of Homeland Security
(DHS), Immigration and Customs
Enforcement (ICE). Complaints under
section 274B of the INA may be filed by
private individuals or entities, or by the
U.S. Department of Justice, Civil Rights
Division, Immigrant and Employee
Rights Section (DOJ/CRT). The
respondents in OCAHO cases are
typically businesses or employers. The
parties to 274A and 274C cases may
seek administrative review of ALJ
decisions and orders by the Chief
Administrative Hearing Officer (CAHO).
Parties in all case types may appeal final
agency orders to the appropriate United
States Circuit Court of Appeals.
In order to process and adjudicate
cases and appeals, OCAHO must collect
certain information and documents from
and about complainants and
respondents. The DOJ/CRT and DHS
ICE can file complaints with OCAHO.
Often, these agencies will submit
investigatory records as exhibits or
attachments to other filings. The
investigatory records include, but are
not limited to, notices of inspection,
summaries of inspection results,
affidavits or memoranda from
investigators, results from searches of
internal agency databases, and similar
records. These exhibits or attachments
then become part of OCAHO’s official
case record.
To improve tracking and storage of
case-related information and
documents, OCAHO is implementing a
new electronic case management system
(CMS). The OCAHO CMS will manage
the entire life cycle of OCAHO’s case
E:\FR\FM\16AUP1.SGM
16AUP1
Federal Register / Vol. 84, No. 159 / Friday, August 16, 2019 / Proposed Rules
processes, including tracking and
managing case information and
documents, facilitating case research,
and reporting on key business functions
and metrics. The OCAHO CMS will also
include an electronic filing capability,
which will enable parties to submit case
information and documents
electronically through a secure webbased portal. The portal will also
provide notifications and updates on
case status, and will allow authorized
parties to access copies of all caserelated documents electronically. The
system is segregated by ‘‘need to know’’
user controls and allows authorized
users to track various stages of the
proceedings. The system also contains
templates to generate letters, notices,
and decisions used in the OCAHO
process. The system can generate
reports by case status and disposition.
Executive Orders 12866, 13563,
13771—Regulatory Review
In accordance with 5 U.S.C. 552a(j)
and 552a(k), this proposed action is
subject to rulemaking procedures by
giving interested persons an opportunity
to participate in the rulemaking process
‘‘through submission of written data,
views, or arguments,’’ pursuant to 5
U.S.C. 553. The exemptions claimed by
the system, as detailed below, do not
raise novel legal or policy issues, nor do
they adversely affect the economy, the
budgetary impact of entitlements,
grants, user fees, loan programs, or the
rights and obligations of recipients
thereof in a material way. The
Department of Justice has determined
that this rule is not a ‘‘significant
regulatory action’’ under Executive
Order 12866, section 3(f), and
accordingly this rule has not been
reviewed by the Office of Information
and Regulatory Affairs within the Office
of Management and Budget.
khammond on DSKBBV9HB2PROD with PROPOSALS
Regulatory Flexibility Act
This proposed rule will only impact
Privacy Act-protected records, which
are personal and generally do not apply
to an individual’s entrepreneurial
capacity, subject to limited exceptions.
Accordingly, the Chief Privacy and Civil
Liberties Officer, in accordance with the
Regulatory Flexibility Act (5 U.S.C.
605(b)), has reviewed this regulation
and by approving it certifies that this
regulation will not have a significant
economic impact on a substantial
number of small entities.
VerDate Sep<11>2014
15:55 Aug 15, 2019
Jkt 247001
Congressional Review Act
This proposed rule is not a major rule
as defined by 5 U.S.C. 804 of the
Congressional Review Act.
Paperwork Reduction Act
The Paperwork Reduction Act of
1995, 44 U.S.C. 3507(d), requires the
Department to consider the impact of
paperwork and other information
collection burdens imposed on the
public. The Paperwork Reduction Act
applies to some of the records collected
as part of this system of records. The
following approved information
collection is associated with this system
of records: Form EOIR–58, Unfair
Immigration-Related Employment
Practices Complaint Form, and OMB
#1125–0016. This system of records will
also collect information via a web-based
electronic filing portal. The Department
is in the process of seeking approval of
this information collection under the
Paperwork Reduction Act.
Unfunded Mandates Reform Act of
1995
This proposed rule will not result in
the expenditure by State, local and
tribal governments, in the aggregate, or
by the private sector, of $100,000,000, as
adjusted for inflation, or more in any
one year, and it will not significantly or
uniquely affect small governments.
Therefore, no actions were deemed
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995.
List of Subjects in 28 CFR Part 16
Administrative practices and
procedures, Courts, Freedom of
information, and the Privacy Act.
Pursuant to the authority vested in the
Attorney General by 5 U.S.C. 552a and
delegated to me by Attorney General
Order 2940–2008, the Department of
Justice proposes to amend 28 CFR part
16 as follows:
41941
(e) The following system of records is
exempt from 5 U.S.C. 552a(d):
Office of the Chief Administrative
Hearing Officer (OCAHO) Case
Management System (CMS) (JUSTICE/
EOIR–002). This exemption applies only
to the extent that information in the
system is subject to exemption pursuant
to 5 U.S.C. 552a(k)(1) and (2).
(f) Exemption from the particular
subsections are justified for the
following reasons:
(1) In limited circumstances, from
subsection (d) when access to the
records contained in this system of
records could inform the subject of an
ongoing investigation of an actual or
potential criminal, civil, or regulatory
violation or the existence of that
investigation; of the nature and scope of
the information and evidence obtained
as to the subject’s activities; of the
identity of confidential sources,
witnesses, and law enforcement
personnel; and of information that may
enable the subject to avoid detection or
apprehension. These factors would
present a serious impediment to
effective law and regulatory
enforcement where they prevent the
successful completion of the
investigation, endanger the physical
safety of confidential sources, witnesses,
and law enforcement personnel; and/or
lead to the improper influencing of
witnesses, the destruction of evidence,
or the fabrication of testimony. In
addition, granting access to such
information could disclose securitysensitive or confidential business
information or information that would
constitute an unwarranted invasion of
the personal privacy of third parties.
Authority: 5 U.S.C. 301, 552, 552a, 553; 28
U.S.C. 509, 510, 534; 31 U.S.C. 3717.
(2) From subsection (d)(2), (3), and (4)
because the administrative case files
constitute an official record which
includes transcripts of administrative
proceedings, investigatory materials,
evidentiary materials such as exhibits,
decisional memoranda, and other caserelated papers. Administrative due
process could not be achieved by the ex
parte ‘‘correction’’ of such materials by
the individual who is the subject
thereof.
2. Amend § 16.83 by adding
paragraphs (e) and (f) to read as follows:
Peter A. Winn,
PART 16—PRODUCTION OR
DISCLOSURE OF MATERIAL OR
INFORMATION
1. The authority citation for part 16
continues to read as follows:
■
■
Dated: August 7, 2019.
§ 16.83 Exemption of the Executive Office
for Immigration Review System—limited
access.
Acting Chief Privacy and Civil Liberties
Officer, United States Department of Justice.
*
BILLING CODE 4410–30–P
PO 00000
*
*
Frm 00005
*
Fmt 4702
*
Sfmt 4702
[FR Doc. 2019–17363 Filed 8–15–19; 8:45 am]
E:\FR\FM\16AUP1.SGM
16AUP1
Agencies
[Federal Register Volume 84, Number 159 (Friday, August 16, 2019)]
[Proposed Rules]
[Pages 41940-41941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17363]
[[Page 41940]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 005-2019]
Privacy Act of 1974; Implementation
AGENCY: Executive Office for Immigration Review, United States
Department of Justice.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: In the Notices section of this issue of the Federal Register,
the Executive Office for Immigration Review, (EOIR), a component within
the United States Department of Justice (DOJ or Department), has
published a notice of a new system of records: Office of the Chief
Administrative Hearing Officer (OCAHO) Case Management System (CMS),
JUSTICE/EOIR-002. In this notice of proposed rulemaking, the Department
proposes for the reasons listed below to exempt this system of records
from certain provisions of the Privacy Act in order to ensure the
integrity of investigatory and adjudicatory records in cases before
OCAHO. Public comment is invited.
DATES: Send comments by September 16, 2019.
ADDRESSES: You may send comments by any of the following methods:
Email: [email protected]. To ensure proper
handling, please reference the CPCLO Order No. in the subject line of
the message.
Fax: 202-307-0693.
Mail: United States Department of Justice, Office of
Privacy and Civil Liberties, ATTN: Privacy Analyst, 145 N Street NE,
Suite 8W.300, Washington, DC 20530. All comments sent via regular or
express mail will be considered timely if postmarked on the day the
comment period closes. To ensure proper handling, please reference the
CPCLO Order No. in your correspondence.
Federal eRulemaking Portal: https://www.regulations.gov.
When submitting comments electronically, you must include the CPCLO
Order No. in the subject box. Please note that electronic comments must
be submitted before midnight Eastern Daylight Saving Time on the day
the comment period closes, and the website for comments, https://www.regulations.gov, will stop receiving comments at that time.
Commenters in other time zones should adjust the times for their
submission accordingly.
Posting of Public Comments: Please note that all comments received
are considered part of the public record and made available for public
inspection online at https://www.regulations.gov and in the Department's
public docket. Such information includes any personally identifying
information (such as name, address, etc.) voluntarily submitted by the
commenter. If you want to submit personally identifying information
(such as your name, address, etc.) as part of your comment, but do not
want it to be posted online or made available in the public docket, you
must include the phrase ``PERSONALLY IDENTIFYING INFORMATION'' in the
first paragraph of your comment. All personally identifying information
that you do not want posted online or made available in the public
docket should be placed in the first paragraph of your comment, where
you should identify what information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information that you
wish to be redacted within the comment. If a comment has so much
confidential business information that it cannot be effectively
redacted, all or part of that comment may not be posted online or made
available in the public docket.
Personally identifying information and confidential business
information identified and located as set forth above, will to the
extent feasible be redacted, and the comment, in redacted form, may be
posted online and placed in the Department's public docket file. Please
note that the Freedom of Information Act applies to all comments
received. If you wish to inspect the agency's public docket file in
person by appointment, please see the FOR FURTHER INFORMATION CONTACT
section, below.
FOR FURTHER INFORMATION CONTACT: Marta Rothwarf and Michelle Curry,
Associate General Counsels and Co-Senior Component Officials for
Privacy, Office of the General Counsel, Executive Office for
Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA
22041, by email at [email protected] and
[email protected], or by facsimile at 703-305-0443.
SUPPLEMENTARY INFORMATION: EOIR proposes to establish a new system of
records subject to the Privacy Act of 1974, 5 U.S.C. 552a. The proposed
system of records will be used by OCAHO to facilitate adjudication of
its cases and may include paper and electronic files maintained by
OCAHO. The records to be maintained in this new system historically
have been included as part of EOIR-001, Records and Management
Information System. They are being transferred into this new system to
improve efficiency, improve records management practices, and provide
better access for parties to proceedings.
OCAHO Administrative Law Judges (ALJs) hear cases and adjudicate
issues arising under the provisions of the Immigration and Nationality
Act (INA) relating to: (1) Knowingly hiring, recruiting or referring
for a fee, or continuing to employ unauthorized aliens, failure to
comply with employment eligibility verification requirements, and
requiring indemnity bonds from employees in violation of section 274A
of the INA (8 U.S.C. 1324a), (2) immigration-related unfair employment
practices in violation of section 274B of the INA (8 U.S.C. 1324b), and
(3) immigration-related document fraud in violation of section 274C of
the INA (8 U.S.C. 1324c).
Complaints under sections 274A and 274C of the INA are filed by the
U.S. Department of Homeland Security (DHS), Immigration and Customs
Enforcement (ICE). Complaints under section 274B of the INA may be
filed by private individuals or entities, or by the U.S. Department of
Justice, Civil Rights Division, Immigrant and Employee Rights Section
(DOJ/CRT). The respondents in OCAHO cases are typically businesses or
employers. The parties to 274A and 274C cases may seek administrative
review of ALJ decisions and orders by the Chief Administrative Hearing
Officer (CAHO). Parties in all case types may appeal final agency
orders to the appropriate United States Circuit Court of Appeals.
In order to process and adjudicate cases and appeals, OCAHO must
collect certain information and documents from and about complainants
and respondents. The DOJ/CRT and DHS ICE can file complaints with
OCAHO. Often, these agencies will submit investigatory records as
exhibits or attachments to other filings. The investigatory records
include, but are not limited to, notices of inspection, summaries of
inspection results, affidavits or memoranda from investigators, results
from searches of internal agency databases, and similar records. These
exhibits or attachments then become part of OCAHO's official case
record.
To improve tracking and storage of case-related information and
documents, OCAHO is implementing a new electronic case management
system (CMS). The OCAHO CMS will manage the entire life cycle of
OCAHO's case
[[Page 41941]]
processes, including tracking and managing case information and
documents, facilitating case research, and reporting on key business
functions and metrics. The OCAHO CMS will also include an electronic
filing capability, which will enable parties to submit case information
and documents electronically through a secure web-based portal. The
portal will also provide notifications and updates on case status, and
will allow authorized parties to access copies of all case-related
documents electronically. The system is segregated by ``need to know''
user controls and allows authorized users to track various stages of
the proceedings. The system also contains templates to generate
letters, notices, and decisions used in the OCAHO process. The system
can generate reports by case status and disposition.
Executive Orders 12866, 13563, 13771--Regulatory Review
In accordance with 5 U.S.C. 552a(j) and 552a(k), this proposed
action is subject to rulemaking procedures by giving interested persons
an opportunity to participate in the rulemaking process ``through
submission of written data, views, or arguments,'' pursuant to 5 U.S.C.
553. The exemptions claimed by the system, as detailed below, do not
raise novel legal or policy issues, nor do they adversely affect the
economy, the budgetary impact of entitlements, grants, user fees, loan
programs, or the rights and obligations of recipients thereof in a
material way. The Department of Justice has determined that this rule
is not a ``significant regulatory action'' under Executive Order 12866,
section 3(f), and accordingly this rule has not been reviewed by the
Office of Information and Regulatory Affairs within the Office of
Management and Budget.
Regulatory Flexibility Act
This proposed rule will only impact Privacy Act-protected records,
which are personal and generally do not apply to an individual's
entrepreneurial capacity, subject to limited exceptions. Accordingly,
the Chief Privacy and Civil Liberties Officer, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
regulation and by approving it certifies that this regulation will not
have a significant economic impact on a substantial number of small
entities.
Congressional Review Act
This proposed rule is not a major rule as defined by 5 U.S.C. 804
of the Congressional Review Act.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
the Department to consider the impact of paperwork and other
information collection burdens imposed on the public. The Paperwork
Reduction Act applies to some of the records collected as part of this
system of records. The following approved information collection is
associated with this system of records: Form EOIR-58, Unfair
Immigration-Related Employment Practices Complaint Form, and OMB #1125-
0016. This system of records will also collect information via a web-
based electronic filing portal. The Department is in the process of
seeking approval of this information collection under the Paperwork
Reduction Act.
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local and tribal governments, in the aggregate, or by the private
sector, of $100,000,000, as adjusted for inflation, or more in any one
year, and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of
information, and the Privacy Act.
Pursuant to the authority vested in the Attorney General by 5
U.S.C. 552a and delegated to me by Attorney General Order 2940-2008,
the Department of Justice proposes to amend 28 CFR part 16 as follows:
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
0
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717.
0
2. Amend Sec. 16.83 by adding paragraphs (e) and (f) to read as
follows:
Sec. 16.83 Exemption of the Executive Office for Immigration Review
System--limited access.
* * * * *
(e) The following system of records is exempt from 5 U.S.C.
552a(d):
Office of the Chief Administrative Hearing Officer (OCAHO) Case
Management System (CMS) (JUSTICE/EOIR-002). This exemption applies only
to the extent that information in the system is subject to exemption
pursuant to 5 U.S.C. 552a(k)(1) and (2).
(f) Exemption from the particular subsections are justified for the
following reasons:
(1) In limited circumstances, from subsection (d) when access to
the records contained in this system of records could inform the
subject of an ongoing investigation of an actual or potential criminal,
civil, or regulatory violation or the existence of that investigation;
of the nature and scope of the information and evidence obtained as to
the subject's activities; of the identity of confidential sources,
witnesses, and law enforcement personnel; and of information that may
enable the subject to avoid detection or apprehension. These factors
would present a serious impediment to effective law and regulatory
enforcement where they prevent the successful completion of the
investigation, endanger the physical safety of confidential sources,
witnesses, and law enforcement personnel; and/or lead to the improper
influencing of witnesses, the destruction of evidence, or the
fabrication of testimony. In addition, granting access to such
information could disclose security-sensitive or confidential business
information or information that would constitute an unwarranted
invasion of the personal privacy of third parties.
(2) From subsection (d)(2), (3), and (4) because the administrative
case files constitute an official record which includes transcripts of
administrative proceedings, investigatory materials, evidentiary
materials such as exhibits, decisional memoranda, and other case-
related papers. Administrative due process could not be achieved by the
ex parte ``correction'' of such materials by the individual who is the
subject thereof.
Dated: August 7, 2019.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2019-17363 Filed 8-15-19; 8:45 am]
BILLING CODE 4410-30-P