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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# 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, DHSwill release the information. Systemlevel exemptions do not permit the


### 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.


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

(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.