83 FR 19020 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-039 Foreign Access Management System of Records

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary

Federal Register Volume 83, Issue 84 (May 1, 2018)

The Department of Homeland Security is giving concurrent notice of an updated and reissued system of records pursuant to the Privacy Act of 1974 for the ``Department of Homeland Security/ALL-039 Foreign Access Management System of Records'' and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of this system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

[Federal Register Volume 83, Number 84 (Tuesday, May 1, 2018)]
[Proposed Rules]
[Pages 19020-19021]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09195]


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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. 84 / Tuesday, May 1, 2018 / Proposed 
Rules

[[Page 19020]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2017-0069]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL-039 Foreign Access Management System of Records

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of an updated and reissued system of records pursuant to the 
Privacy Act of 1974 for the ``Department of Homeland Security/ALL-039 
Foreign Access Management System of Records'' and this proposed 
rulemaking. In this proposed rulemaking, the Department proposes to 
exempt portions of this system of records from one or more provisions 
of the Privacy Act because of criminal, civil, and administrative 
enforcement requirements.

DATES:  Comments must be received on or before May 31, 2018.

ADDRESSES: You may submit comments, identified by docket number DHS-
2017-0069, 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 for this notice. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general and privacy-related 
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

    The Department of Homeland Security (DHS) is proposing to update 
applicable regulations to exempt portions of an updated and reissued 
system of records from certain provisions of the Privacy Act. 
Specifically, this rule exempts portions of the ``DHS/ALL-039 Foreign 
Access Management System of Records,'' which is being proposed 
concurrently with this Notice of Proposed Rulemaking elsewhere in the 
Federal Register, from one or more provisions of the Privacy Act 
because of criminal, civil, and administrative enforcement 
requirements, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5). 
Furthermore, to the extent certain categories of records are ingested 
from other systems, the exemptions applicable to the source systems 
will remain in effect.
    DHS is publishing the system of records notice (SORN) to update the 
categories of individuals and modify the routine uses. In the original 
SORN, the categories of individuals indicated that dual U.S. citizens 
and lawful permanent residents (LPR) representing foreign interests 
were included. The SORN is being updated to indicate that all U.S. 
citizens representing foreign interests are included in the categories 
of individuals, not just dual U.S. citizens.
    The SORN provides transparency on how DHS collects, uses, 
maintains, and disseminates information relating to foreign nationals 
who seek access to DHS and partner U.S. Government (USG) agency 
personnel, information, facilities, programs, research, studies, and 
information technology (IT) systems. The DHS Office of the Chief 
Security Officer (OCSO)/Center for International Safety & Security 
(CISS) Foreign Access Management (FAM) program uses the Foreign Access 
Management System (FAMS) to manage the risk assessment process for 
foreign nationals requesting access to DHS and partner agencies. DHS is 
responsible for conducting screening of all foreign nationals and 
foreign entities seeking access to DHS personnel, information, 
facilities, programs, and IT systems, including: U.S. citizens and 
lawful permanent residents (LPR) representing foreign interests; LPRs 
providing construction or contractual services (e.g., food services, 
janitorial services); and foreign contacts and foreign visitors 
reported by DHS and partner USG agency employees who have met and/or 
befriended such contacts and visitors outside the scope of the 
employee's official duties.

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 individuals' records. 
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 an 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, and similarly, 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-039 Foreign Access Management System of Records. Some 
information in DHS/ALL-039 Foreign Access Management System of Records 
relates to official DHS national security, law enforcement, 
immigration, intelligence activities. These

[[Page 19021]]

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 avoid disclosure of 
screening techniques; to protect the identities and physical safety of 
confidential informants and law enforcement personnel; to ensure DHS's 
ability to obtain information from third parties and other sources; to 
protect the privacy of third parties; and to safeguard classified 
information. Disclosure of information to the subject of the inquiry 
could also permit the subject to avoid detection or apprehension.
    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-039 Foreign Access 
Management 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. Revise the authority citation for Part 5 to read as follows:

    Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 5 U.S.C. 301.

0
2. Amend appendix C to part 5 by adding paragraph 78:

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

* * * * *
    78. The DHS/ALL-039 Foreign Access Management System of Records 
consists of electronic and paper records and will be used by DHS and 
its components. The DHS/ALL-039 Foreign Access Management System of 
Records is a repository of information held by DHS in connection 
with its several and varied missions and functions, including, but 
not limited to the enforcement of civil and criminal laws; 
investigations, inquiries, and proceedings there under; and national 
security and intelligence activities. The DHS/ALL-039 Foreign Access 
Management 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(k)(1), (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); 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); 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) (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 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. When an investigation has been completed, 
information on disclosures made may continue to be exempted if the 
fact that an investigation occurred remains sensitive after 
completion.
    (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.
    (d) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this 
system are exempt from the individual access provisions of 
subsection (d) for the reasons noted above, and therefore DHS is not 
required to establish requirements, rules, or procedures with 
respect to such access. Providing notice to individuals with respect 
to existence of records pertaining to them in the system of records 
or otherwise setting up procedures pursuant to which individuals may 
access and view records pertaining to themselves in the system would 
undermine investigative efforts and reveal the identities of 
witnesses, and potential witnesses, and confidential informants.

Philip S. Kaplan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2018-09195 Filed 4-30-18; 8:45 am]
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