[Federal Register Volume 83, Number 147 (Tuesday, July 31, 2018)]
[Proposed Rules]
[Pages 36792-36793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16137]


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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.

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Federal Register / Vol. 83, No. 147 / Tuesday, July 31, 2018 / 
Proposed Rules

[[Page 36792]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2018-0002]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/U.S. Citizenship and Immigration Services-018 
Immigration Biometric and Background Check (IBBC) System of Records

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/U.S. Citizenship 
and Immigration Services-018 Immigration Biometric and Background Check 
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 August 30, 2018.

ADDRESSES: You may submit comments, identified by docket number DHS-
2018-0002 by one of the following methods:
    <bullet> Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Fax: 202-343-4010.
    <bullet> Mail: Philip S. Kaplan, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528-0655.
    Instructions: All submissions received must include the agency name 
and docket number DHS-2018-0002 for this notice. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: 
    For general questions please contact: Donald K. Hawkins, (202) 272-
8030, <a href="/cdn-cgi/l/email-protection#2f7a7c6c667c017f5d46594e4c566c40425f43464e414c4a6f5a5c4c465c014b475c01484059"><span class="__cf_email__" data-cfemail="7025233339235e20021906111309331f1d001c19111e13153005031319035e1418035e171f06">[email protected]</span></a>, Privacy Officer, U.S. 
Citizenship and Immigration Services, 20 Massachusetts Avenue NW, 
Washington, DC 20529.
    For privacy questions please contact: Philip S. Kaplan, (202) 343-
1717, <a href="/cdn-cgi/l/email-protection#e3b3918a9582809aa38b92cd878b90cd848c95"><span class="__cf_email__" data-cfemail="08587a617e696b71486079266c607b266f677e">[email protected]</span></a>, Chief Privacy Officer, Privacy Office, 
Department of Homeland Security, Washington, DC 20528-0655.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the DHS 
U.S. Citizenship and Immigration Services (USCIS) has relied on two 
preexisting DHS/USCIS Privacy Act system of records notices (SORN) for 
the maintenance of USCIS biometric and background check records: ``DHS/
USCIS 002 Background Check Service,'' 72 FR 31082 (June 5, 2007), and 
``DHS/USCIS-003 Biometric Storage System,'' 72 FR 17172 (April 6, 
2007). DHS plans to rescind these SORNs. Records covered under these 
preexisting SORNs will now be covered by one new system of records 
named ``DHS/USCIS-018 Immigration Biometric and Background Check System 
of Records'' (IBBC). This SORN consolidates all USCIS records 
maintained on biometric and associated biographic information it 
collects pursuant to its mission to process and adjudicate immigration 
benefit requests and other immigration request forms (e.g., 
applications and petitions). The purpose of this system is to verify 
identity and conduct criminal and national security background checks 
in order to establish an individual's eligibility for an immigration 
benefit or other request, and support domestic and international data 
sharing efforts. USCIS determines eligibility by capturing biometric 
and associated biographic data from benefit requestors, beneficiaries, 
and other categories of individuals to facilitate three key operational 
functions: (1) Verify an individual's identity; (2) conduct criminal 
and national security background checks; and (3) produce benefit cards/
documents as a proof of benefit. Further, this system permits the 
sharing of information covered by this system between the United States 
and foreign partners to prevent terrorism, including terrorist travel; 
prevent serious crime and other threats to national security and public 
safety; and assist in the administration and enforcement of immigration 
laws.
    A description of this consolidated system is further described in 
DHS/USCIS's notice of a new Privacy Act systems of records published 
elsewhere in this Federal Register.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework under which Federal Government agencies collect, 
maintain, use, and disseminate individuals' records. The Privacy Act 
applies to information that is maintained in a ``system of records.'' A 
``system of records'' is a group of any records under the control of an 
agency from which information is retrieved by the name of an 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 subsection 552a(d) provisions. If 
an agency claims an exemption, however, it must issue a Notice of 
Proposed Rulemaking and Final Rule 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-018 Immigration Biometric and Background Check System 
of Records. Information in DHS/USCIS-018 Immigration Biometric and 
Background Check System of Records relates to official DHS national 
security,

[[Page 36793]]

law enforcement, immigration, and intelligence activities. These 
exemptions are needed to protect ongoing investigations and law 
enforcement 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's ability to obtain information from third 
parties and other sources; 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.

List of Subjects in 6 CFR Part 5

    Freedom of information, Privacy.

    For the reasons stated in the preamble, DHS proposes to amend 
chapter I of title 6, Code of Federal Regulations, as follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

0
1. The authority citation for part 5 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. Add at the end of appendix C to part 5, the following new paragraph 
``78'':

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    78. The DHS/USCIS-018 Immigration Biometric and Background Check 
(IBBC) System of Records covers electronic and paper records and 
will be used by DHS and its components. The DHS/USCIS-018 IBBC 
System of Records covers information held by DHS/USCIS 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 there under; and national 
security and intelligence activities. The DHS/USCIS-018 IBBC 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 Secretary's 
delegation 15002 to the Director of USCIS to conduct certain law 
enforcement activities when necessary to protect the national 
security and public safety, pursuant to 5 U.S.C. 552a(j)(2), has 
exempted this system from the following provisions of the Privacy 
Act: 5 U.S.C. 552a(c)(3), (c)(4); (d); (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f); and (g). 
Additionally, the Secretary of Homeland Security, pursuant to 5 
U.S.C. 552a(k)(2), has exempted this system from the following 
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Where a record received 
from another system has been exempted in that source system under 5 
U.S.C. 552a(j)(2), 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 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. From subsection (d) (Amendment to Records) because 
permitting amendment of records could interfere with ongoing 
investigations and law enforcement activities and would impose an 
unreasonable administrative burden by requiring investigations to be 
continually reinvestigated. In addition, permitting access and 
amendment to such information could disclose security-sensitive 
information that could be detrimental to homeland security.
    (c) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of federal law, the accuracy of information obtained or 
introduced occasionally may be unclear, or the information may not 
be strictly relevant or necessary to a specific investigation. In 
the interests of effective law enforcement, it is appropriate to 
retain all information that may aid in establishing patterns of 
unlawful activity.
    (d) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from 
the subject of an investigation would alert the subject to the 
nature or existence of the investigation, thereby interfering with 
that investigation and related law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information could impede law enforcement by 
compromising the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this 
system are exempt from the individual access provisions of 
subsection (d) for the reasons noted above, and therefore DHS is not 
required to establish requirements, rules, or procedures with 
respect to such access. Providing notice to individuals with respect 
to existence of records pertaining to them in the system of records 
or otherwise setting up procedures pursuant to which individuals may 
access and view records pertaining to themselves in the system would 
undermine investigative efforts and reveal the identities of 
witnesses, and potential witnesses, and confidential informants.
    (g) From subsection (e)(5) (Collection of Information) because 
with the collection of information for law enforcement purposes, it 
is impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with subsection (e)(5) 
would preclude DHS agents from using their investigative training 
and exercise of good judgment to both conduct and report on 
investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS's ability to obtain, serve, and 
issue subpoenas, warrants, and other law enforcement mechanisms that 
may be filed under seal and could result in disclosure of 
investigative techniques, procedures, and evidence.
    (i) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

Philip S. Kaplan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2018-16137 Filed 7-30-18; 8:45 am]
 BILLING CODE 9111-97-P


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