[Federal Register Volume 74, Number 98 (Friday, May 22, 2009)]
[Proposed Rules]
[Pages 23957-23958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11966]


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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. 74, No. 98 / Friday, May 22, 2009 / Proposed 
Rules

[[Page 23957]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0013]


Privacy Act of 1974: Implementation of Exemptions; U.S. 
Citizenship and Immigration Services 009 Compliance Tracking and 
Management System (CTMS)

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) is amending its 
regulations to exempt portions of a system of records from certain 
provisions of the Privacy Act of 1974. Specifically, DHS proposes to 
exempt portions of the Compliance Tracking and Management System (CTMS) 
from one or more provisions of the Privacy Act because of criminal, 
civil and administrative enforcement requirements. CTMS is a system of 
records that DHS will use to support the Verification Division of U.S. 
Citizenship and Immigration Services (USCIS). CTMS collects and uses 
information necessary for DHS to support monitoring and compliance 
activities for researching and managing misuse, abuse, discrimination, 
breach of privacy, and fraudulent use of information obtained through 
two USCIS Verification Division programs: Systematic Alien Verification 
for Entitlements (SAVE); and E-Verify.

DATES: Comments must be received on or before June 22, 2009.

ADDRESSES: You may submit comments, identified by docket number [DHS-
2009-0013] by one of the following methods:
    <bullet> Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Fax: 703-483-2999.
    <bullet> Mail: Mary Ellen Callahan, 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.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Claire Stapleton (202-358-7777), Verification Division Privacy Branch 
Chief, or Donald K. Hawkins (202-272-1400), Citizenship and Immigration 
Services Privacy Officer, 20 Massachusetts Avenue, NW., Washington, DC 
20529. U.S. Citizenship and Immigration Services, Department of 
Homeland Security, Washington, DC 20529. For privacy issues please 
contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, 
Privacy Office, U.S. Department of Homeland Security, Washington, DC 
20528.

SUPPLEMENTARY INFORMATION: 
    Background: The Department of Homeland Security (DHS), elsewhere in 
this edition of the Federal Register, published a Privacy Act system of 
records notice describing records in the Compliance Tracking and 
Management System (CTMS). This system of records is owned and operated 
by U.S. Citizenship and Immigration Services (USCIS). CTMS collects and 
uses information necessary to support monitoring and compliance for 
researching and managing misuse, abuse, discrimination, breach of 
privacy, and fraudulent use of USCIS Verification Division's 
verification programs: (1) Systematic Alien Verification for 
Entitlements (SAVE); and (2) E-Verify. SAVE and E-Verify are both 
congressionally mandated programs for the verification of information 
about an individual based on documents presented to either a government 
agency or employer. E-Verify, formerly known as the Basic Pilot 
Program, was established under the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996, Public Law 104-208 section 401, 8 
U.S.C. 1324a note. SAVE was established under the Immigration and 
Control Act of 1986, Public Law 100-360 section 121(c).The specifics of 
the SAVE and E-Verify Program can be found on the DHS Web site and in 
the Verification Information System (VIS) System of Records Notice 
(SORN) and Privacy Impact Assessments (PIA). Congress further required 
that DHS provide reasonable safeguards to prevent these programs from 
misuse, abuse, discrimination, breach of privacy, and fraudulent use.
    The Verification Division of USCIS has established a Monitoring and 
Compliance Branch to monitor and research potential cases of misuse, 
abuse, discrimination, breach of privacy, and fraudulent use. CTMS is 
the system that supports this effort. DHS proposes to exempt portions 
of the Compliance Tracking and Management System (CTMS) from one or 
more provisions of the Privacy Act because of criminal, civil and 
administrative enforcement requirements. 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 (NPRM) to make clear to the 
public the reasons why a particular exemption is claimed.
    In this NPRM, DHS now is proposing to exempt CTMS, in part, from 
certain provisions of the Privacy Act. Some information in CTMS is 
shared with and contributes to law enforcement activities of DHS 
components and other Federal agencies. 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 USCIS monitoring and compliance processes and to avoid 
disclosure of research techniques, as these processes and techniques 
may inform law enforcement investigations. 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

[[Page 23958]]

law enforcement process, the applicable exemptions may be waived.

List of Subjects in 6 CFR Part 5

    Privacy, Freedom of information.

    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. Add at the end of Appendix C to Part 5, Exemption of Record 
Systems under the Privacy Act, the following new paragraph 14:

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

* * * * *
    14. The Department of Homeland Security Compliance Tracking and 
Management System (CTMS) consists of electronic and paper files that 
will be used by DHS and its components. This system of records will 
be used to perform a range of information management and analytic 
functions involving minimizing misuse, abuse, discrimination, breach 
of privacy, and fraudulent use of SAVE and E-Verify. Pursuant to 5 
U.S.C. 552a(k)(2) of the Privacy Act, this system is exempt from the 
following provisions of the Privacy Act, subject to the limitations 
set forth in those subsections: 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 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 
interest 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), (H), and (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.

    Dated: May 15, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. E9-11966 Filed 5-21-09; 8:45 am]
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