This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

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REGISTER issue of each week.

Rules and Regulations Federal Register

69983 

Vol. 78, No. 226 

Friday, November 22, 2013 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2011–0047] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security 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: Final rule. 

SUMMARY: The Department of Homeland 

Security is issuing a final rule to amend 

its regulations to exempt portions of an 

updated and reissued system of records 

titled, ‘‘Department of Homeland 

Security 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’’ from certain 

provisions of the Privacy Act. 

Specifically, the Department exempts 

portions of the system of records from 

one or more provisions of the Privacy 

Act because of criminal, civil, and 

administrative enforcement 

requirements. 

DATES: Effective Date: This final rule is 

effective November 22, 2013. 

FOR FURTHER INFORMATION CONTACT: For 

general questions about this system of 

records please contact: Donald K. 

Hawkins (202) 272–8000, Privacy 

Officer, U.S. Citizenship and 

Immigration Services, 20 Massachusetts 

Avenue NW., Washington, DC 20529. 

For privacy issues please contact: 

Jonathan R. Cantor (202) 343–1717, 

Deputy Chief Privacy Officer, Privacy 

Office, Department of Homeland 

Security, Washington, DC 20528. 

SUPPLEMENTARY INFORMATION: 

Background 

The Department of Homeland 

Security (DHS) U.S. Citizenship and 

Immigration Services (USCIS), U.S. 

Immigration and Customs Enforcement 

(ICE), U.S. Customs and Border 

Protection (CBP) published a notice of 

proposed rulemaking in the Federal 

Register, 76 FR 34177 (June 13, 2011), 

proposing 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 system 

of records is the DHS/USCIS–ICE–CBP– 

001 Alien File, Index, and National File 

Tracking System of Records. The DHS/ 

USCIS–ICE–CBP–001 Alien File, Index, 

and National File Tracking System of 

Records Notice was published 

concurrently in the Federal Register, 76 

FR 34233 (June 13, 2011), and 

comments were invited on both the 

Notice of Proposed Rulemaking (NPRM) 

and System of Records Notice (SORN). 

Public Comments 

DHS received two public comments 

regarding the NPRM and one public 

comment regarding the SORN. 

NPRM 

DHS received comments from two 

individuals regarding the DHS/USCIS– 

ICE–CBP–001 NPRM. We have 

determined not to makes any changes to 

the Final Rule based on the comments 

but have made some non-substantive 

edits for clarity and consistency. Both 

commenters expressed concerns about 

DHS exempting records without 

justification. Pursuant to the Privacy Act 

of 1974, DHS exempts these records 

from the access and amendment 

provisions of the Privacy Act because 

they may contain classified and 

sensitive unclassified information 

related to intelligence, counterterrorism, 

homeland security, and law 

enforcement programs. 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’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. 

One commenter had several 

additional concerns. This commenter 

contended that individuals are not 

properly notified about the extent to 

which their information may be shared. 

DHS indicates on all information 

collection forms that the information 

will be shared pursuant to the routine 

uses listed in the appropriate SORN. 

DHS informs the public that as part of 

collecting the information in the Alien 

File, information may be shared for 

immigration, law enforcement, and 

national security purposes. 

The commenter expressed concern 

that the new routine uses exceed the 

purposes of the original collection of 

information, weakening the privacy 

protections of the system. DHS is 

providing this updated list of routine 

uses to better inform the public about 

the typical uses of information 

contained in the Alien File. The Alien 

File provides a central location for 

information to address several 

immigration and law enforcement 

needs. Because of the nature of the 

immigration lifecycle, this information 

must be available for several purposes 

consistent with the original collection. 

Information is necessary not just to 

adjudicate the requested benefit, but 

also provide information for law 

enforcement purposes and normal 

agency functions. The commenter 

expressed concern about the use of this 

information for audit purposes, but such 

a routine use is necessary to ensure the 

integrity of the immigration system and 

evaluate DHS’s performance. 

The commenter expressed concern 

about DHS reviewing requests for 

information pursuant to the Privacy Act 

on a case-by-case basis, because it is an 

inefficient method for reviewing 

requests. DHS reviews requests for 

information on a case-by-case basis to 

prevent information from being 

withheld categorically. When the 

release of information will not interfere 

with the purposes of an exemption, DHS 

will release the information. Systemlevel exemptions do not permit the 


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69984 Federal Register / Vol. 78, No. 226 / Friday, November 22, 2013 / Rules and Regulations 

individualized attention afforded by a 

case-by-case review, and would result in 

information being needlessly withheld. 

The commenter expressed concern 

that the system does not embody the 

Fair Information Practice Principles 

(FIPPs). As is evident from the SORN 

and the above, DHS implements the 

FIPPs in developing all of its systems of 

records. DHS provides transparency 

through notice to the public describing 

the records it maintains about 

individuals; provides individual 

participation by collecting information 

directly from the individual whenever 

possible; provides purpose specification 

and use limitation by enumerating the 

general purposes and routine uses of the 

information; provides data 

minimization by limiting the amount of 

and time data is retained; provides data 

integrity by correcting and updating 

information and providing redress; and 

implements security and auditing 

controls. 

The commenter recommended DHS 

require any agency requesting records 

from this system complete a Privacy 

Impact Assessment (PIA). Generally, the 

E-Government Act of 2002 requires 

federal agencies to perform a PIA when 

information technology is involved in 

collecting, using, or maintaining 

personally identifiable information from 

the public. DHS does not evaluate the 

application of the E-Government Act to 

another agency’s request for records 

from this system and does not require 

other agencies to perform PIAs. 

However, DHS requires each agency that 

receives information from the Alien File 

to demonstrate a proper need to know 

the information consistent with Privacy 

Act exceptions and routine uses and 

agree to terms of use safeguarding the 

information. Accordingly, DHS believes 

that it takes adequate steps to ensure 

that information from the Alien file is 

afforded adequate privacy protections 

when it is disclosed to another agency. 

SORN 

DHS received one comment about the 

DHS/USCIS–ICE–CBP–001 SORN 

expressing frustration with the public 

comment process and with the general 

state of immigration in the United 

States. DHS acknowledges the 

commenter’s frustration. 

After consideration of public 

comments, DHS will implement the 

rulemaking as proposed with minor 

grammatical changes. 

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. In Appendix C to Part 5, add 

paragraph 70 to read as follows: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

70. 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 pursuant to 5 U.S.C. 552a(j)(2): 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). Additionally, the 

Secretary of Homeland Security has 

exempted this system from the following 

provisions of the Privacy Act pursuant to 5 

U.S.C. 552a(k)(1) and (k)(2): 5 U.S.C. 

552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 

(e)(4)(I), and (f). Exemptions from these 

particular subsections may be 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 

Individuals) 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, 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, 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 impede DHS officials’ ability to 

effectively use their investigative training 

and exercise good judgment to both conduct 

and report on investigations. 


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Federal Register / Vol. 78, No. 226 / Friday, November 22, 2013 / Rules and Regulations 69985 

(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) if 

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, is acting on behalf of the 

individual. 

Dated: October 28, 2013. 

Jonathan R. Cantor, 

Deputy Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2013–27896 Filed 11–21–13; 8:45 am] 

BILLING CODE 9111–97–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 948 

[Doc. No. AMS–FV–13–0072; FV13–948–2 

IR] 

Irish Potatoes Grown in Colorado; 

Decreased Assessment Rate for Area 

No. 2 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This rule decreases the 

assessment rate established for the 

Colorado Potato Administrative 

Committee, Area No. 2 (Committee), for 

the 2013–2014 and subsequent fiscal 

periods from $0.0051 to $0.0033 per 

hundredweight of potatoes handled. 

The Committee locally administers the 

marketing order, which regulates the 

handling of Irish potatoes grown in 

Colorado. Assessments upon potato 

handlers are used by the Committee to 

fund reasonable and necessary expenses 

of the program. The fiscal period begins 

September 1 and ends August 31. The 

assessment rate will remain in effect 

indefinitely unless modified, 

suspended, or terminated. 

DATES: Effective November 23, 2013. 

Comments received by January 21, 2014, 

will be considered prior to issuance of 

a final rule. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this rule. Comments must be 

sent to the Docket Clerk, Marketing 

Order and Agreement Division, Fruit 

and Vegetable Program, AMS, USDA, 

1400 Independence Avenue SW., STOP 

0237, Washington, DC 20250–0237; Fax: 

(202) 720–8938; or internet: http://

www.regulations.gov. Comments should 

reference the document number and the 

date and page number of this issue of 

the Federal Register and will be 

available for public inspection in the 

Office of the Docket Clerk during regular 

business hours, or can be viewed at: 

http://www.regulations.gov. All 

comments submitted in response to this 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting the 

comments will be made public on the 

internet at the address provided above. 

FOR FURTHER INFORMATION CONTACT: Sue 

Coleman, Marketing Specialist, or Gary 

D. Olson, Regional Director, Northwest 

Marketing Field Office, Marketing Order 

and Agreement Division, Fruit and 

Vegetable Program, AMS, USDA; 

Telephone: (503) 326–2724, Fax: (503) 

326–7440, or Email: Sue.Coleman@

ams.usda.gov or GaryD.Olson@

ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jeffrey Smutny, 

Marketing Order and Agreement 

Division, Fruit and Vegetable Program, 

AMS, USDA, 1400 Independence 

Avenue SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or Email: 

Jeffrey.Smutny@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Agreement 

No. 97 and Order No. 948, both as 

amended (7 CFR part 948), regulating 

the handling of Irish potatoes grown in 

Colorado, hereinafter referred to as the 

‘‘order.’’ The order is effective under the 

Agricultural Marketing Agreement Act 

of 1937, as amended (7 U.S.C. 601–674), 

hereinafter referred to as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Orders 

12866 and 13563. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the order now in effect, 

Colorado Area No. 2 potato handlers are 

subject to assessments. Funds to 

administer the order are derived from 

such assessments. It is intended that the 

assessment rate, as issued herein, will 

be applicable to all assessable potatoes 

beginning September 1, 2013, and 

continue until amended, suspended, or 

terminated. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. Such 

handler is afforded the opportunity for 

a hearing on the petition. After the 

hearing, USDA would rule on the 

petition. The Act provides that the 

district court of the United States in any 

district in which the handler is an 

inhabitant, or has his or her principal 

place of business, has jurisdiction to 

review USDA’s ruling on the petition, 

provided an action is filed not later than 

20 days after the date of the entry of the 

ruling. 

This rule decreases the assessment 

rate established for the Committee for 

the 2013–2014 and subsequent fiscal 

periods from $0.0051 to $0.0033 per 

hundredweight of potatoes. This change 

was unanimously recommended by the 

Committee at a meeting held on July 18, 

2013. 

Section 948.4 of the order divides the 

State of Colorado into three areas of 

regulation for marketing order purposes. 

These areas include: Area No. 1, 

commonly known as the Western Slope; 

Area No. 2, commonly known as San 

Luis Valley; and, Area No. 3, which 

consists of the remaining producing 

areas within the State of Colorado not 

included in the definition of Area No. 

1 or Area No. 2. Currently, the order 

only regulates the handling of potatoes 

produced in Area No. 2 and Area No. 3. 

Regulation for Area No. 1 has been 

suspended. 

Section 948.50 of the order establishes 

committees as administrative agencies 

for each of the areas set forth under 

§ 948.4. Section 948.75 establishes that 

each area committee is authorized to 

incur such expenses as the Secretary 

may find are reasonable and likely to be 

incurred during each fiscal period for its 

maintenance and functioning, and for 

purposes determined to be appropriate 

for administration of this part. Section 

948.76 requires each area committee to 

prepare and submit an estimated budget 

to the Secretary for approval and to 

recommend a rate of assessment 

sufficient to provide funds to defray its 

proposed expenditures. 


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