83 FR 20738 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/U.S. Immigration and Customs Enforcement-007 Criminal History and Immigration Verification (CHIVe) System of Records

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary

Federal Register Volume 83, Issue 89 (May 8, 2018)

The Department of Homeland Security (DHS) is giving concurrent notice of a modified, renamed, and reissued system of records pursuant to the Privacy Act of 1974 for the ``Department of Homeland Security/U.S. Immigration and Customs Enforcement-007 Alien Criminal Response Information Management System of Records'' and this proposed rulemaking. In this proposed rulemaking, the Department proposes to rename the system Criminal History and Immigration Verification, and 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 89 (Tuesday, May 8, 2018)]
[Proposed Rules]
[Pages 20738-20740]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09906]


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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. 89 / Tuesday, May 8, 2018 / Proposed 
Rules

[[Page 20738]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2018-0014]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/U.S. Immigration and Customs Enforcement-007 Criminal 
History and Immigration Verification (CHIVe) System of Records

AGENCY: Department of Homeland Security.

ACTION:  Notice of proposed rulemaking.

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

SUMMARY:  The Department of Homeland Security (DHS) is giving 
concurrent notice of a modified, renamed, and reissued system of 
records pursuant to the Privacy Act of 1974 for the ``Department of 
Homeland Security/U.S. Immigration and Customs Enforcement-007 Alien 
Criminal Response Information Management System of Records'' and this 
proposed rulemaking. In this proposed rulemaking, the Department 
proposes to rename the system Criminal History and Immigration 
Verification, and 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 June 7, 2018.

ADDRESSES:  You may submit comments, identified by docket number DHS-
2018-0014, 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-2018-0014. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Amber Smith, (202-732-3300), [email protected], Privacy Officer, 
U.S. Immigration and Customs Enforcement, 500 12th Street SW, 
Washington, DC 20536. For privacy issues 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 U.S. 
Immigration and Customs Enforcement (ICE) proposes to modify, rename, 
and reissue a current DHS Privacy Act system of records notice (SORN) 
titled, ``DHS/ICE-007 Alien Criminal Response Information Management 
(ACRIMe)'' 78 FR 10623 (Feb. 14, 2013). ICE had previously issued a 
Final Rule for this SORN on Aug. 31, 2009, published at 74 FR 45079. As 
a result of the modifications to this SORN, DHS/ICE is proposing to 
issue this new rule.
    DHS/ICE update to ACRIMe includes several changes. First, the 
system of records is being renamed ``Criminal History and Immigration 
Verification (CHIVe)'' to better align with the purpose of the system. 
This system of records covers records documenting inquiries received 
from federal, state, and local law enforcement agencies so ICE can 
check the immigration status and criminal history of individuals who 
are arrested or otherwise encountered by those agencies; and other 
federal agencies for screening (including as part of background checks 
being conducted by those agencies) to inform those agencies' 
determinations regarding suitability for employment, access, 
sponsorship of an unaccompanied alien child, or other purposes or 
otherwise encountered by those agencies.
    Second, DHS is adding a purpose of the system, as ICE will now 
screen individuals seeking approval from the Department of Health and 
Human Services (HHS) to sponsor an unaccompanied alien child, as well 
as other adult members of the potential sponsor's household, to verify 
or ascertain citizenship or immigration status, immigration history, 
and criminal history.
    Third, DHS is clarifying that the Department may use information 
maintained in this system of records for other purposes consistent with 
its statutory authorities.
    Fourth, this update adds a new category of individuals: Those 
seeking approval from HHS to sponsor an unaccompanied alien child and/
or other adult members of the potential sponsor's household.
    Fifth, DHS is adding one category of records to include biometrics 
for potential sponsors and/or other adult members of the potential 
sponsor's household. DHS has also modified a category of records to 
include citizenship or immigration status and criminal and immigration 
history information for sponsorship of unaccompanied alien children.
    Sixth, DHS is adding one new routine use that would allow ICE to 
share from this system of records the results of screening of potential 
sponsors and adult members of their households with HHS to inform HHS's 
determination whether to grant sponsor applications. DHS is also 
modifying routine use (E) and adding routine use (F) to conform to 
Office of Management and Budget (OMB) Memorandum M-17-12 ``Preparing 
for and Responding to a Breach of Personally Identifiable Information'' 
(Jan. 3, 2017).
    Seventh, DHS is revising the records retention periods so that they 
align with the records retention schedule approved by the National 
Archives and Records Administration (NARA).
    Finally, DHS is modifying this SORN since this system will no 
longer store information pertaining to the collection, processing, and 
response to public tip information concerning customs and immigration 
violations, suspicious activity, or other law enforcement matters. ICE 
will continue to collect information about individuals reporting tips, 
the subjects of such tips, and any information ICE collects in 
following up on a tip in the DHS/ICE-016 FALCON Search and Analysis 
System of Records, 82 FR 20905 (May 4, 2017).

[[Page 20739]]

    As a result, the following changes are being made: (1) Two 
categories of individuals are being removed from the system--
individuals who report tips and individuals about whom those reports 
are made; (2) two categories of records are being removed from the 
system--those public tip records, which consist of information 
contained in tips received from the public or other sources regarding 
customs and immigration violations, other actual or potential 
violations of law, and suspicious activities; and also records created 
pertaining to ICE's follow-up activities regarding a tip; (3) one 
routine use is being removed from the system that allows DHS to 
disclose reports of suspicious activity, tips, potential violations of 
law, and other relevant information to external law enforcement 
agencies; and (4) four purposes for the collection of information are 
being removed from the system. Purpose (4) in the prior iteration of 
this SORN has been removed as it pertains to public tip records. 
Purposes (5), (6), and (7) have been removed since these purposes are 
more focused on ICE's Law Enforcement Support Center (LESC) rather than 
the system as a whole.
    A more complete description of the changes to this SORN can be 
found in the publication of this modified SORN found elsewhere in the 
Federal Register. Further, this modified system of records and rule 
will be included in DHS's inventory of record systems.

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 portions of the Act. 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/ICE-007 Criminal History and Immigration Verification 
(CHIVe) System of Records. Some information in DHS/ICE-007 Criminal 
History and Immigration Verification (CHIVe) System of Records relates 
to official DHS national security, law enforcement, immigration, and 
intelligence activities. These exemptions are needed to protect 
information relating to DHS activities from disclosure to subjects or 
others related to these activities. Specifically, the exemptions are 
required to preclude subjects of these activities from frustrating 
these processes; to avoid disclosure of activity techniques; to protect 
the identities and physical safety of confidential informants and law 
enforcement personnel; to ensure DHS' 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, where compliance would not appear to 
interfere with or adversely affect the law enforcement purposes of this 
system and the overall law enforcement process, the applicable 
exemptions may be waived on a case by case basis.
    A SORN for DHS/ICE-007 Criminal History and Immigration 
Verification (CHIVe) 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. Subpart A also issued under 5 U.S.C. 552. 
Subpart B also issued under 5 U.S.C. 552a.

0
2. In Appendix C to Part 5, revise paragraph 28. to read as follows:

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

* * * * *
    28. The DHS/ICE-007 Criminal History and Immigration 
Verification (CHIVe) System of Records covers electronic and paper 
records and will be used by DHS and its components. The DHS/ICE-007 
Criminal History and Immigration Verification (CHIVe) System of 
Records covers information held by DHS/ICE 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/ICE-007 Criminal History and Immigration 
Verification (CHIVe) 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), (e)(8); (f); and (g). Additionally, the Secretary 
of Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), 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); and (f). 
Exemptions from these particular subsections are justified, on a 
case-by-case basis to be determined at the time a request is made, 
for the following reasons:
    (a) From subsection (c)(3) 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 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. From subsection (d) (Amendment to Records) because 
permitting amendment of 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.

[[Page 20740]]

    (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 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), (e)(4)(H), (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.
    (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 subsection (g) (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. 2018-09906 Filed 5-7-18; 8:45 am]
 BILLING CODE 9111-28-P