[Federal Register Volume 73, Number 160 (Monday, August 18, 2008)]
[Proposed Rules]
[Pages 48155-48156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19034]


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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. 73, No. 160 / Monday, August 18, 2008 / 
Proposed Rules

[[Page 48155]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2007-0055]


Privacy Act of 1974: Implementation of Exemptions; Fraud 
Detection and National Security Data System (FDNS-DS) System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is concurrently 
establishing a new system of records pursuant to the Privacy Act of 
1974 entitled the Technical Fraud Detection and National Security Data 
System (FDNS-DS). The USCIS has developed the Fraud Detection and 
National Security Data System (FDNS-DS), a case management system used 
to record, track, and manage immigration inquiries, investigative 
referrals, law enforcement requests, and case determinations involving 
benefit fraud, criminal activity, public safety and national security 
concerns. In this proposed rulemaking, the Department proposes to 
exempt portions of this 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 September 17, 2008.

ADDRESSES: You may submit comments, identified by docket number DHS-
2007-0055, by one of the following methods:
    <bullet> Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Fax: 1-866-466-5370.
    <bullet> Mail: Hugo Teufel III, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.
    <bullet> Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
    <bullet> Docket: For access to the docket to read background 
documents or comments received go to http://www.regulations.gov.
    Instructions: All submissions received must include the agency name 
and docket number 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: 
United States Citizenship and Immigration Services, Privacy Officer, 
Donald Hawkins 111 Massachusetts Avenue, NW., Washington, DC 20529. For 
privacy issues please contact: Hugo Teufel III (703-235-0780), Chief 
Privacy Officer, Privacy Office, U.S. Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Office of Fraud Detection and National Security (FDNS) of the 
United States Citizenship and Immigration Services (USCIS) has 
developed a new system named the Fraud Detection and National Security 
Data System (FDNS-DS). FDNS-DS is a central repository that permits 
specially-trained employees to record, track, and manage the background 
check and adjudicative processes related to immigration applications 
and petitions with suspected or confirmed fraud, criminal activity, 
egregious public safety, and/or national security concerns, and cases 
randomly selected for benefit fraud assessments (BFAs). The system will 
also have the capability to track the following:
    1. USCIS investigative referrals to law enforcement agencies 
(LEAs);
    2. LEA referrals to USCIS concerning subjects with pending 
immigration benefit applications or petitions;
    3. background check referrals and resolutions associated with 
suspected or confirmed fraud, criminal activity, egregious public 
safety, and/or national security concerns; and
    4. any additional inquiries conducted in order to confirm that the 
information on file is correct.
    FDNS has created FDNS-DS, a centralized data system, in order to 
increase the effectiveness of the United States (U.S.) immigration 
system in identifying threats to national security, combating benefit 
fraud, and locating and removing vulnerabilities that compromise the 
integrity of the legal immigration system. With the implementation of 
FDNS-DS, USCIS's capabilities for detecting and tracking benefit fraud 
and other criminal activity--and conducting efficient and accurate 
background check resolutions and adjudication of national security 
cases will be increased.
    In order to achieve the goals discussed above, FDNS-DS will store 
data related to immigration applications involving suspected or 
confirmed fraud, criminal activity, egregious public safety, and/or 
national security concerns. The data will include the results of 
required background checks conducted in connection with pending 
petitions/applications that result in subsequent inquiries conducted to 
resolve the background check results. FDNS-DS will also contain the 
following information related to cases involving suspected or confirmed 
fraud, criminal activity, egregious public safety, and/or national 
security concerns: USCIS investigative referrals to law enforcement 
agencies (LEAs) of suspected or confirmed fraud or other criminal 
activity; LEA referrals to USCIS related to pending applications; 
referrals to USCIS from the public or other governmental entities or 
fraud case referrals from the Benefit Fraud Assessment (BFA) process 
(``other referrals''); adverse information identified by USCIS from 
applications, administrative files, interviews, written requests for 
evidence (RFEs) or site visits; results of resolution of any of the 
above-described categories of adverse information; and adjudicative 
summaries and decisions.
    FDNS-DS will store information concerning cases randomly selected 
for BFAs and will track interactions with Immigration and Citizenship 
Enforcement (ICE) and other LEAs (e.g., the Federal Bureau of 
Investigation [FBI], the Drug Enforcement

[[Page 48156]]

Administration [DEA], and U.S. Customs and Border Protection [CBP]) in 
cases involving fraud or other criminal activity, and the Department of 
State in cases involving fraud related to selected types of visas for 
entry into the United States.
    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.
    In this Notice of Proposed Rulemaking, DHS now is proposing to 
exempt FDNS-DS, in part, from certain provisions of the Privacy Act. 
Some information in FDNS-DS relates to official DHS law enforcement, 
intelligence, and immigration activities. 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 of immigration and border management and 
law enforcement personnel; to ensure DHS's ability to obtain 
information from third parties and other sources; and to protect the 
privacy of third parties. Disclosure of information to the subject of 
the inquiry could also permit the subject to avoid detection or 
apprehension.
    The exemptions proposed here are standard law enforcement and 
national security exemptions exercised by a large number of Federal law 
enforcement and intelligence agencies. In appropriate circumstances, 
where 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.

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: Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et 
seq.; 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. At the end of appendix C to part 5, add the following new 
paragraph ``7'':

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

* * * * *
    7. The Department of Homeland Security United States Citizenship 
and Immigration Services Fraud Detection and National Security Data 
System (FDNS-DS) System of Records consists of a stand-alone 
database and paper files that will be used by DHS and its 
components. FDNS-DS is a case management system used to record, 
track, and manage immigration inquiries, investigative referrals, 
law enforcement requests, and case determinations involving benefit 
fraud, criminal activity, public safety and national security 
concerns.
    The Secretary of Homeland Security has exempted this system from 
5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), 
and (f) pursuant to 5 U.S.C. 552a(k)(2). These exemptions apply only 
to the extent that records in the system are subject to exemption 
pursuant to 5 U.S.C. 552a(k)(2). 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) (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 the 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 the 
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 
impossible administrative burden by requiring investigations to be 
continuously 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 subsections (e)(4)(G) and (e)(4)(H) (Agency 
Requirements) because portions of this system are exempt from the 
individual access provisions of subsection (d) which exempts 
providing access because it could alert a subject to the nature or 
existence of an investigation, and thus there could be no procedures 
for that particular data. Procedures do exist for access for those 
portions of the system that are not exempted.
    (e) From subsection (e)(4)(I) (Agency Requirements) because 
providing such source information would impede law enforcement or 
intelligence by compromising the nature or existence of a 
confidential investigation.
    (f) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of 
subsection (d).

    Dated: August 11, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. E8-19034 Filed 8-15-08; 8:45 am]
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