83 FR 17766 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-041 External Biometric Records (EBR) System of Records

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary

Federal Register Volume 83, Issue 79 (April 24, 2018)

The Department of Homeland Security (DHS) is giving concurrent notice of a new system of records pursuant to the Privacy Act of 1974 for the ``Department of Homeland Security/ALL-041 External Biometric Records (EBR) 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.

[Federal Register Volume 83, Number 79 (Tuesday, April 24, 2018)]
[Proposed Rules]
[Pages 17766-17768]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-08454]


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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. 79 / Tuesday, April 24, 2018 / 
Proposed Rules

[[Page 17766]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2017-0040]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL-041 External Biometric Records (EBR) System of 
Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY:  The Department of Homeland Security (DHS) is giving 
concurrent notice of a new system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/ALL-041 External 
Biometric Records (EBR) 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 May 24, 2018.

ADDRESSES: You may submit comments, identified by docket number DHS-
2017-0040, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-343-4010.
     Mail: Philip S. Kaplan, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.
    Instructions: All submissions received must include the agency name 
and docket number DHS-2017-0040. 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 and privacy questions 
please contact: Philip S. Kaplan, [email protected], (202-343-1717), 
Chief Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, DHS 
proposes a Privacy Act exemption for a new DHS system of records 
titled, ``DHS/ALL-041 External Biometric Records (EBR) System of 
Records.''
    DHS has developed this system of records to receive, maintain, and 
disseminate biometric and associated biographic information from non-
DHS entities (not already covered by a component system of records 
notices (SORNs)), both foreign and domestic, for the following purposes 
pursuant to formal or informal information sharing agreements or 
arrangements (``external information''), or with the express approval 
of the entity from which the Department received biometric and 
associated biographic information: Law enforcement; national security; 
immigration screening; border enforcement; intelligence; national 
defense; and background investigations relating to national security 
positions, credentialing, and certain positions of public trust, 
consistent with applicable DHS authorities.
    In 2007, DHS published the Automated Biometric Identification 
System (IDENT) SORN. Since then, the Department's Privacy Act framework 
has evolved as the Department has matured and the complexity of the 
IDENT system increased. DHS Component SORNs now govern the function and 
use of the biometrics records collected by each component. However, the 
Department still requires a SORN to cover biometrics received from non-
DHS entities. Therefore, DHS is establishing DHS/ALL-041 External 
Biometric Records (EBR) System of Records, which governs the 
maintenance and use of biometrics and associated biographic information 
received from non-DHS entities that are not covered by an existing 
Component SORNs. In addition, a forthcoming technical SORN will cover 
the limited information created by the IDENT system. Eventually, both 
this EBR SORN and the planned technical SORN will replace the IDENT 
SORN. In the meantime, to avoid any gap in SORN coverage for biometrics 
and associated biographic information, the EBR and IDENT SORNs will co-
exist. After the technical SORN is published, DHS will rescind the 
IDENT SORN by publishing a notice of rescindment in the Federal 
Register.
    External information is collected by non-DHS entities, including 
the Department of Defense (DoD), the Department of Justice (DOJ), State 
and local law enforcement authorities, or foreign governments. External 
information shared with DHS includes biometric (including latent 
fingerprints) and associated biographic information that may be used by 
DHS for the following purposes: Law enforcement; national security; 
immigration screening; border enforcement; intelligence; national 
defense; and background investigations relating to national security 
positions, credentialing, and certain positions of public trust, 
consistent with applicable DHS authorities.
    DHS also maintains this information to support its information 
sharing agreements and arrangements with foreign partners to: Prevent 
travelers from assuming different identities to fraudulently gain 
admission or immigration benefits; identify individuals who seek to 
enter the United States for unauthorized purposes; identify those who 
have committed serious crimes or violated immigration law; and enable 
informed decisions on visas, admissibility, or other immigration 
benefits. Such sharing augments the law enforcement and border control 
efforts of both the United States and its partners. Additionally, DHS 
is using this information in concert with external partners to 
facilitate the screening of refugees in an effort to combat terrorist 
travel consistent with DHS's and Components' authorities.
    Consistent with DHS's mission, information covered by DHS/ALL-041 
External Biometric Records may be shared with DHS Components that have 
a need to know the information to carry out their national security, 
law enforcement, immigration, intelligence, or other homeland security 
functions. In

[[Page 17767]]

addition, DHS may share information with appropriate Federal, State, 
local, tribal, territorial, foreign, or international government 
agencies from the providing external entity, consistent with any 
applicable laws, rules, regulations, and information sharing and access 
agreements. DHS may share biometric and associated biographic 
information, as permitted pursuant to an applicable Privacy Act 
authorized disclosure, including routine uses set forth in this system 
of records notice.
    DHS is issuing this Notice of Proposed Rulemaking to exempt this 
system of records from certain provisions of the Privacy Act.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which Federal Government 
agencies collect, maintain, use, and disseminate personally 
identifiable information. 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 the 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 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.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/ALL-041 External Biometric Records (EBR) System of Records, 
under 5 U.S.C. 552a(j)(2), (k)(2), and (k)(5). Information in DHS/ALL-
041 External Biometric Records (EBR) System of Records relates to 
official DHS law enforcement, national security, immigration screening, 
border enforcement, intelligence, national defense, and background 
investigations relating to national security positions, credentialing, 
and certain positions of public trust, consistent with applicable DHS 
authorities. 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 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.
    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.
    A notice of system of records for DHS/ALL-041 External Biometric 
Records (EBR) System of Records is also published in this issue of the 
Federal Register.

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 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. Amend Appendix to Part 5 by adding paragraph 78 to read as follows:

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

* * * * *
    78. The DHS/ALL-041 External Biometric Records (EBR) System of 
Records consists of electronic and paper records and will be used by 
DHS and its components. The DHS/ALL-041 External Biometric Records 
(EBR) System of Records is a repository of information held by DHS 
in connection with its several and varied missions and functions, 
including the enforcement of civil and criminal laws; 
investigations, inquiries, and proceedings there under; and national 
security and intelligence activities. The DHS/ALL-041 External 
Biometric Records (EBR) 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 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)(5), and (e)(8); (f); and 
(g)(1) through (5). Additionally, the Secretary of Homeland 
Security, pursuant to 5 U.S.C. 552a(k)(2) and (k)(5), has exempted 
this system from the following provisions of the Privacy Act: 5 
U.S.C. 552a(c)(3); (d); and (e)(1), (e)(4)(G), (e)(4)(H); and (f). 
When 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 and Amendment 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.

[[Page 17768]]

    (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) and (e)(4)(H), (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 subsections (g)(1) through (5) (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. 2018-08454 Filed 4-23-18; 8:45 am]
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