83_FR_17845 83 FR 17766 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-041 External Biometric Records (EBR) System of Records

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)

Page Range17766-17768
FR Document2018-08454

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 Issue 79 (Tuesday, April 24, 2018)
[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]


========================================================================
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.

========================================================================


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.

-----------------------------------------------------------------------

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]
BILLING CODE 9110-9B-P



                                                    17766

                                                    Proposed Rules                                                                                                 Federal Register
                                                                                                                                                                   Vol. 83, No. 79

                                                                                                                                                                   Tuesday, April 24, 2018



                                                    This section of the FEDERAL REGISTER                    comments received, go to http://                       information created by the IDENT
                                                    contains notices to the public of the proposed          www.regulations.gov.                                   system. Eventually, both this EBR SORN
                                                    issuance of rules and regulations. The                                                                         and the planned technical SORN will
                                                    purpose of these notices is to give interested          FOR FURTHER INFORMATION CONTACT:    For
                                                                                                            general and privacy questions please                   replace the IDENT SORN. In the
                                                    persons an opportunity to participate in the                                                                   meantime, to avoid any gap in SORN
                                                    rule making prior to the adoption of the final          contact: Philip S. Kaplan, privacy@
                                                    rules.                                                  hq.dhs.gov, (202–343–1717), Chief                      coverage for biometrics and associated
                                                                                                            Privacy Officer, Privacy Office,                       biographic information, the EBR and
                                                                                                            Department of Homeland Security,                       IDENT SORNs will co-exist. After the
                                                    DEPARTMENT OF HOMELAND                                  Washington, DC 20528.                                  technical SORN is published, DHS will
                                                    SECURITY                                                SUPPLEMENTARY INFORMATION:
                                                                                                                                                                   rescind the IDENT SORN by publishing
                                                                                                                                                                   a notice of rescindment in the Federal
                                                    Office of the Secretary                                 I. Background                                          Register.
                                                                                                               In accordance with the Privacy Act of                  External information is collected by
                                                    6 CFR Part 5                                            1974, 5 U.S.C. 552a, DHS proposes a                    non-DHS entities, including the
                                                                                                            Privacy Act exemption for a new DHS                    Department of Defense (DoD), the
                                                    [Docket No. DHS–2017–0040]                              system of records titled, ‘‘DHS/ALL–041                Department of Justice (DOJ), State and
                                                                                                            External Biometric Records (EBR)                       local law enforcement authorities, or
                                                    Privacy Act of 1974: Implementation of                  System of Records.’’                                   foreign governments. External
                                                    Exemptions; Department of Homeland                         DHS has developed this system of                    information shared with DHS includes
                                                    Security/ALL–041 External Biometric                     records to receive, maintain, and                      biometric (including latent fingerprints)
                                                    Records (EBR) System of Records                         disseminate biometric and associated                   and associated biographic information
                                                                                                            biographic information from non-DHS                    that may be used by DHS for the
                                                    AGENCY:   Privacy Office, DHS.
                                                                                                            entities (not already covered by a                     following purposes: Law enforcement;
                                                    ACTION:   Notice of proposed rulemaking.                component system of records notices                    national security; immigration
                                                    SUMMARY:   The Department of Homeland                   (SORNs)), both foreign and domestic, for               screening; border enforcement;
                                                    Security (DHS) is giving concurrent                     the following purposes pursuant to                     intelligence; national defense; and
                                                    notice of a new system of records                       formal or informal information sharing                 background investigations relating to
                                                    pursuant to the Privacy Act of 1974 for                 agreements or arrangements (‘‘external                 national security positions,
                                                    the ‘‘Department of Homeland Security/                  information’’), or with the express                    credentialing, and certain positions of
                                                    ALL–041 External Biometric Records                      approval of the entity from which the                  public trust, consistent with applicable
                                                    (EBR) System of Records’’ and this                      Department received biometric and                      DHS authorities.
                                                    proposed rulemaking. In this proposed                   associated biographic information: Law                    DHS also maintains this information
                                                    rulemaking, the Department proposes to                  enforcement; national security;                        to support its information sharing
                                                    exempt portions of the system of records                immigration screening; border                          agreements and arrangements with
                                                    from one or more provisions of the                      enforcement; intelligence; national                    foreign partners to: Prevent travelers
                                                    Privacy Act because of criminal, civil,                 defense; and background investigations                 from assuming different identities to
                                                    and administrative enforcement                          relating to national security positions,               fraudulently gain admission or
                                                    requirements.                                           credentialing, and certain positions of                immigration benefits; identify
                                                                                                            public trust, consistent with applicable               individuals who seek to enter the
                                                    DATES:  Comments must be received on                    DHS authorities.                                       United States for unauthorized
                                                    or before May 24, 2018.                                    In 2007, DHS published the                          purposes; identify those who have
                                                    ADDRESSES: You may submit comments,                     Automated Biometric Identification                     committed serious crimes or violated
                                                    identified by docket number DHS–                        System (IDENT) SORN. Since then, the                   immigration law; and enable informed
                                                    2017–0040, by one of the following                      Department’s Privacy Act framework                     decisions on visas, admissibility, or
                                                    methods:                                                has evolved as the Department has                      other immigration benefits. Such
                                                      • Federal e-Rulemaking Portal: http://                matured and the complexity of the                      sharing augments the law enforcement
                                                    www.regulations.gov. Follow the                         IDENT system increased. DHS                            and border control efforts of both the
                                                    instructions for submitting comments.                   Component SORNs now govern the                         United States and its partners.
                                                      • Fax: 202–343–4010.                                  function and use of the biometrics                     Additionally, DHS is using this
                                                      • Mail: Philip S. Kaplan, Chief                       records collected by each component.                   information in concert with external
                                                    Privacy Officer, Privacy Office,                        However, the Department still requires                 partners to facilitate the screening of
                                                    Department of Homeland Security,                        a SORN to cover biometrics received                    refugees in an effort to combat terrorist
                                                    Washington, DC 20528.                                   from non-DHS entities. Therefore, DHS                  travel consistent with DHS’s and
                                                      Instructions: All submissions received                is establishing DHS/ALL–041 External                   Components’ authorities.
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    must include the agency name and                        Biometric Records (EBR) System of                         Consistent with DHS’s mission,
                                                    docket number DHS–2017–0040. All                        Records, which governs the                             information covered by DHS/ALL–041
                                                    comments received will be posted                        maintenance and use of biometrics and                  External Biometric Records may be
                                                    without change to http://                               associated biographic information                      shared with DHS Components that have
                                                    www.regulations.gov, including any                      received from non-DHS entities that are                a need to know the information to carry
                                                    personal information provided.                          not covered by an existing Component                   out their national security, law
                                                      Docket: For access to the docket to                   SORNs. In addition, a forthcoming                      enforcement, immigration, intelligence,
                                                    read background documents or                            technical SORN will cover the limited                  or other homeland security functions. In


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                                                                             Federal Register / Vol. 83, No. 79 / Tuesday, April 24, 2018 / Proposed Rules                                                 17767

                                                    addition, DHS may share information                     DHS authorities. These exemptions are                  local, tribal, foreign, or international
                                                    with appropriate Federal, State, local,                 needed to protect information relating to              government agencies.
                                                    tribal, territorial, foreign, or                        DHS activities from disclosure to                         The Secretary of Homeland Security,
                                                                                                                                                                   pursuant to 5 U.S.C. 552a(j)(2), has exempted
                                                    international government agencies from                  subjects or others related to these                    this system from the following provisions of
                                                    the providing external entity, consistent               activities. Specifically, the exemptions               the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4);
                                                    with any applicable laws, rules,                        are required to preclude subjects of                   (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
                                                    regulations, and information sharing                    these activities from frustrating these                (e)(5), and (e)(8); (f); and (g)(1) through (5).
                                                    and access agreements. DHS may share                    processes; to protect the identities and               Additionally, the Secretary of Homeland
                                                    biometric and associated biographic                     physical safety of confidential                        Security, pursuant to 5 U.S.C. 552a(k)(2) and
                                                    information, as permitted pursuant to an                informants and law enforcement                         (k)(5), has exempted this system from the
                                                    applicable Privacy Act authorized                                                                              following provisions of the Privacy Act: 5
                                                                                                            personnel; to ensure DHS’s ability to
                                                                                                                                                                   U.S.C. 552a(c)(3); (d); and (e)(1), (e)(4)(G),
                                                    disclosure, including routine uses set                  obtain information from third parties                  (e)(4)(H); and (f). When a record received
                                                    forth in this system of records notice.                 and other sources; to protect the privacy              from another system has been exempted in
                                                       DHS is issuing this Notice of                        of third parties; and to safeguard                     that source system under 5 U.S.C. 552a(j)(2),
                                                    Proposed Rulemaking to exempt this                      classified information. Disclosure of                  DHS will claim the same exemptions for
                                                    system of records from certain                          information to the subject of the inquiry              those records that are claimed for the original
                                                    provisions of the Privacy Act.                          could also permit the subject to avoid                 primary systems of records from which they
                                                                                                            detection or apprehension.                             originated and claims any additional
                                                    II. Privacy Act                                                                                                exemptions set forth here.
                                                                                                              In appropriate circumstances, when
                                                       The Privacy Act embodies fair                                                                                  Exemptions from these particular
                                                                                                            compliance would not appear to                         subsections are justified, on a case-by-case
                                                    information practice principles in a                    interfere with or adversely affect the law             basis to be determined at the time a request
                                                    statutory framework governing the                       enforcement purposes of this system                    is made, for the following reasons:
                                                    means by which Federal Government                       and the overall law enforcement                           (a) From subsection (c)(3) and (4)
                                                    agencies collect, maintain, use, and                    process, the applicable exemptions may                 (Accounting for Disclosures) because release
                                                    disseminate personally identifiable                     be waived on a case by case basis.                     of the accounting of disclosures could alert
                                                    information. The Privacy Act applies to                   A notice of system of records for DHS/               the subject of an investigation of an actual or
                                                    information that is maintained in a                                                                            potential criminal, civil, or regulatory
                                                                                                            ALL–041 External Biometric Records
                                                    ‘‘system of records.’’ A ‘‘system of                                                                           violation to the existence of that investigation
                                                                                                            (EBR) System of Records is also                        and reveal investigative interest on the part
                                                    records’’ is a group of any records under               published in this issue of the Federal                 of DHS as well as the recipient agency.
                                                    the control of an agency from which                     Register.                                              Disclosure of the accounting would therefore
                                                    information is retrieved by the name of                                                                        present a serious impediment to law
                                                    the individual or by some identifying                   List of Subjects in 6 CFR Part 5                       enforcement efforts and/or efforts to preserve
                                                    number, symbol, or other identifying                      Freedom of information; Privacy.                     national security. Disclosure of the
                                                    particular assigned to the individual. In                 For the reasons stated in the                        accounting would also permit the individual
                                                    the Privacy Act, an individual is defined               preamble, DHS proposes to amend                        who is the subject of a record to impede the
                                                    to encompass U.S. citizens and lawful                                                                          investigation, to tamper with witnesses or
                                                                                                            chapter I of title 6, Code of Federal                  evidence, and to avoid detection or
                                                    permanent residents. Additionally, the                  Regulations, as follows:
                                                    Judicial Redress Act (JRA) provides a                                                                          apprehension, which would undermine the
                                                                                                                                                                   entire investigative process.
                                                    statutory right to covered persons to                   PART 5—DISCLOSURE OF RECORDS                              (b) From subsection (d) (Access and
                                                    make requests for access and                            AND INFORMATION                                        Amendment to Records) because access to
                                                    amendment to covered records, as                                                                               the records contained in this system of
                                                    defined by the JRA, along with judicial                 ■ 1. The authority citation is revised to              records could inform the subject of an
                                                    review for denials of such requests. In                 read as follows:                                       investigation of an actual or potential
                                                    addition, the JRA prohibits disclosures                   Authority: 6 U.S.C. 101 et seq.; Pub. L.             criminal, civil, or regulatory violation to the
                                                    of covered records, except as otherwise                 107–296, 116 Stat. 2135; 5 U.S.C. 301.                 existence of that investigation and reveal
                                                    permitted by the Privacy Act.                           Subpart A also issued under 5 U.S.C. 552.              investigative interest on the part of DHS or
                                                       The Privacy Act allows government                    Subpart B also issued under 5 U.S.C. 552a.             another agency. Access to the records could
                                                                                                                                                                   permit the individual who is the subject of
                                                    agencies to exempt certain records from                 ■ 2. Amend Appendix to Part 5 by                       a record to impede the investigation, to
                                                    the access and amendment provisions. If                 adding paragraph 78 to read as follows:                tamper with witnesses or evidence, and to
                                                    an agency claims an exemption,                                                                                 avoid detection or apprehension.
                                                                                                            Appendix C to Part 5—DHS Systems of
                                                    however, it must issue a Notice of                                                                             Amendment of the records could interfere
                                                                                                            Records Exempt From the Privacy Act
                                                    Proposed Rulemaking to make clear to                                                                           with ongoing investigations and law
                                                    the public the reasons why a particular                 *       *     *       *      *                         enforcement activities and would impose an
                                                    exemption is claimed.                                     78. The DHS/ALL–041 External Biometric               unreasonable administrative burden by
                                                       DHS is claiming exemptions from                      Records (EBR) System of Records consists of            requiring investigations to be continually
                                                    certain requirements of the Privacy Act                 electronic and paper records and will be used          reinvestigated. In addition, permitting access
                                                                                                            by DHS and its components. The DHS/ALL–                and amendment to such information could
                                                    for DHS/ALL–041 External Biometric                      041 External Biometric Records (EBR) System            disclose security-sensitive information that
                                                    Records (EBR) System of Records, under                  of Records is a repository of information held         could be detrimental to homeland security.
                                                    5 U.S.C. 552a(j)(2), (k)(2), and (k)(5).                by DHS in connection with its several and                 (c) From subsection (e)(1) (Relevancy and
                                                    Information in DHS/ALL–041 External                     varied missions and functions, including the           Necessity of Information) because in the
                                                    Biometric Records (EBR) System of                       enforcement of civil and criminal laws;                course of investigations into potential
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                    Records relates to official DHS law                     investigations, inquiries, and proceedings             violations of federal law, the accuracy of
                                                    enforcement, national security,                         there under; and national security and                 information obtained or introduced
                                                    immigration screening, border                           intelligence activities. The DHS/ALL–041               occasionally may be unclear, or the
                                                                                                            External Biometric Records (EBR) System of             information may not be strictly relevant or
                                                    enforcement, intelligence, national                     Records contains information that is                   necessary to a specific investigation. In the
                                                    defense, and background investigations                  collected by, on behalf of, in support of, or          interests of effective law enforcement, it is
                                                    relating to national security positions,                in cooperation with DHS and its components             appropriate to retain all information that may
                                                    credentialing, and certain positions of                 and may contain personally identifiable                aid in establishing patterns of unlawful
                                                    public trust, consistent with applicable                information collected by other Federal, State,         activity.



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                                                    17768                    Federal Register / Vol. 83, No. 79 / Tuesday, April 24, 2018 / Proposed Rules

                                                       (d) From subsection (e)(2) (Collection of            ACTION:Notification of petition for                    notification and set forth below,
                                                    Information from Individuals) because                   rulemaking; request for comment.                       verbatim.1 In promulgating this petition
                                                    requiring that information be collected from                                                                   for public comment, the Department of
                                                    the subject of an investigation would alert the         SUMMARY:    On March 21, 2018, the                     Energy is seeking views on whether it
                                                    subject to the nature or existence of the               Department of Energy (DOE) received a
                                                    investigation, thereby interfering with that
                                                                                                                                                                   should grant the petition and undertake
                                                                                                            petition from the Competitive Enterprise               a rulemaking to consider the proposal
                                                    investigation and related law enforcement               Institute (CEI) to define a new product
                                                    activities.                                                                                                    contained in the petition. By seeking
                                                                                                            class under the Energy Policy and                      comment on whether to grant this
                                                       (e) From subsection (e)(3) (Notice to
                                                    Subjects) because providing such detailed               Conservation Act (EPCA) for residential                petition, the Department of Energy takes
                                                    information could impede law enforcement                dishwashers. The new product class                     no position at this time regarding the
                                                    by compromising the existence of a                      would cover dishwashers with a cycle                   merits of the suggested rulemaking.
                                                    confidential investigation or reveal the                time of less than one hour from washing                   On March 21, 2018, CEI petitioned
                                                    identity of witnesses or confidential                   through drying. Through this                           DOE to initiate a rulemaking to define
                                                    informants.                                             notification, DOE seeks comment on the                 a new product class under 42 U.S.C.
                                                       (f) From subsections (e)(4)(G) and (e)(4)(H),        petition, as well as any data or                       6295(q) for residential dishwashers.
                                                    (Agency Requirements) and (f) (Agency                   information that could be used in DOE’s
                                                    Rules), because portions of this system are
                                                                                                                                                                   (The petition is presented at the end of
                                                                                                            determination whether to proceed with                  this document.) The new product class
                                                    exempt from the individual access provisions
                                                    of subsection (d) for the reasons noted above,          the petition.                                          would cover dishwashers with a cycle
                                                    and therefore DHS is not required to establish          DATES: Written comments and                            time of less than one hour from washing
                                                    requirements, rules, or procedures with                 information are requested on or before                 through drying. CEI did not suggest
                                                    respect to such access. Providing notice to             June 25, 2018.                                         specific energy and water requirements
                                                    individuals with respect to existence of                ADDRESSES: Interested persons are                      for this new product class, stating that
                                                    records pertaining to them in the system of             encouraged to submit comments,                         these details could be determined
                                                    records or otherwise setting up procedures                                                                     during the course of the rulemaking. CEI
                                                    pursuant to which individuals may access
                                                                                                            identified by ‘‘Dishwasher Petition,’’ by
                                                                                                            any of the following methods:                          stated that dishwasher cycle times have
                                                    and view records pertaining to themselves in
                                                    the system would undermine investigative                   Federal eRulemaking Portal: http://                 become dramatically longer under
                                                    efforts and reveal the identities of witnesses,         www.regulations.gov. Follow the                        existing DOE energy conservation
                                                    and potential witnesses, and confidential               instructions for submitting comments.                  standards, and that consumer
                                                    informants.                                                Mail: Appliance and Equipment                       satisfaction/utility has dropped as a
                                                       (g) From subsection (e)(5) (Collection of            Standards Program, U.S. Department of                  result of these longer cycle times. CEI
                                                    Information) because with the collection of             Energy, Building Technologies Office,                  also provided data regarding the
                                                    information for law enforcement purposes, it            Mailstop EE–5B, 1000 Independence                      increase in dishwasher cycle time,
                                                    is impossible to determine in advance what              Avenue SW, Washington, DC 20585–                       including data that correlated increased
                                                    information is accurate, relevant, timely, and
                                                                                                            0121. If possible, please submit all items             cycle time with DOE’s adoption of
                                                    complete. Compliance with subsection (e)(5)
                                                    would preclude DHS agents from using their              on a compact disc (CD), in which case                  amended efficiency standards for
                                                    investigative training and exercise of good             it is not necessary to include printed                 dishwashers.
                                                    judgment to both conduct and report on                  copies.                                                   CEI cites to section 6295(q) of EPCA
                                                    investigations.                                            Hand Delivery/Courier: Appliance                    as the authority for DOE to undertake
                                                       (h) From subsection (e)(8) (Notice on                and Equipment Standards Program, U.S.                  the requested rulemaking. Section
                                                    Individuals) because compliance would                   Department of Energy, Building                         6295(q) requires that DOE, for a rule
                                                    interfere with DHS’s ability to obtain, serve,          Technologies Office, 950 L’Enfant Plaza                prescribing an energy conservation
                                                    and issue subpoenas, warrants, and other law            SW, Suite 600, Washington, DC 20024.                   standard for a type (or class) of covered
                                                    enforcement mechanisms that may be filed                Telephone: (202) 586–6636. If possible,                products, specify a level of energy use
                                                    under seal and could result in disclosure of
                                                                                                            please submit all items on a CD, in                    or efficiency higher or lower than the
                                                    investigative techniques, procedures, and
                                                    evidence.                                               which case it is not necessary to include              level that applies (or would apply) to
                                                       (i) From subsections (g)(1) through (5)              printed copies.                                        such type (or class) for any group of
                                                    (Civil Remedies) to the extent that the system             Docket: For access to the docket to                 covered products that have the same
                                                    is exempt from other specific subsections of            read background documents, or                          function or intended use, if DOE
                                                    the Privacy Act.                                        comments received, go to the Federal                   determines that covered products
                                                                                                            eRulemaking Portal at http://                          within such group either: (1) Consume
                                                    Philip S. Kaplan
                                                                                                            www.regulations.gov.                                   a different kind of energy from that
                                                    Chief Privacy Officer, Department of
                                                                                                            FOR FURTHER INFORMATION CONTACT:                       consumed by other covered products
                                                    Homeland Security.
                                                                                                            Elizabeth Kohl, U.S. Department of                     within such type (or class); or (2) have
                                                    [FR Doc. 2018–08454 Filed 4–23–18; 8:45 am]
                                                                                                            Energy, Office of the General Counsel,                 a capacity or other performance-related
                                                    BILLING CODE 9110–9B–P
                                                                                                            1000 Independence Avenue SW,                           feature that other products within such
                                                                                                            Washington, DC 20585. Email:                           type (or class) do not have, and such
                                                                                                            Elizabeth.Kohl@hq.doe.gov; 202–586–                    feature justifies a higher or lower
                                                    DEPARTMENT OF ENERGY                                    7796.                                                  standard from that which applies (or
                                                                                                                                                                   will apply) to other products within
                                                                                                            SUPPLEMENTARY INFORMATION: The
                                                    10 CFR Part 430                                                                                                such type (or class). In making a
                                                                                                            Administrative Procedure Act (APA), 5
jstallworth on DSKBBY8HB2PROD with PROPOSALS




                                                                                                                                                                   determination under paragraph (q)
                                                    Energy Conservation Program: Energy                     U.S.C. 551 et seq., provides among other               concerning whether a performance-
                                                    Conservation Standards for                              things, that ‘‘[e]ach agency shall give an             related feature justifies a higher or lower
                                                    Dishwashers, Notification of Petition                   interested person the right to petition                standard, DOE must consider such
                                                    for Rulemaking                                          for the issuance, amendment, or repeal                 factors as the utility to the consumer of
                                                                                                            of a rule.’’ (5 U.S.C. 553(e)) Pursuant to
                                                    AGENCY: Office of Energy Efficiency and                 this provision of the APA, CEI                            1 Attachments and data submitted by CEI with its
                                                    Renewable Energy, Department of                         petitioned DOE for the issuance of a                   petition for rulemaking are available in the docket
                                                    Energy.                                                 new rule, as described in this                         at http://www.regulations.gov.



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Document Created: 2018-04-24 00:39:25
Document Modified: 2018-04-24 00:39:25
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionNotice of proposed rulemaking.
DatesComments must be received on or before May 24, 2018.
ContactFor 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.
FR Citation83 FR 17766 

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