Federal Register - November 8, 2021
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Source: Federal Register
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Rules and Regulations
Federal Register Vol. 86, No. 213
Monday, November 8, 2021
This section of the FEDERAL REGISTER
contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary 6 CFR Part 5
Docket No. DHS2021ICEB20210012
Privacy Act of 1974: Implementation of Exemptions; U.S. Department of Homeland Security/U.S. Immigration and Custom Enforcement018
Analytical Records System of Records U.S. Immigration and Custom Enforcement U.S. Department of Homeland Security.
ACTION: Final rule.
AGENCY:
The U.S. Department of Homeland Security DHS is issuing a final rule to amend its regulations to exempt portions of a newly established system of records titled, DHS/U.S.
Immigration and Customs Enforcement IC018 Analytical Records System of Records from certain provisions of the Privacy Act. Specifically, the Department exempts portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
DATES: This final rule is effective November 8, 2021.
FOR FURTHER INFORMATION CONTACT: For general questions please contact: Jordan Holz, ICEPrivacy@ice.dhs.gov, Privacy Officer, U.S. Immigration and Customs Enforcement ICE, 500 12th Street SW, Mail Stop 5004, Washington, DC 20536.
For privacy issues please contact: Lynn Parker Dupree 202 3431717, Privacy@
hq.dhs.gov, Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC
20528.
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SUMMARY:
SUPPLEMENTARY INFORMATION:
Background The U.S. Department of Homeland Security DHS U.S. Immigration and
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Customs Enforcement ICE published a notice of proposed rulemaking in the Federal Register, 86 FR 15134, March 22, 2021, proposing to exempt portions of the system of records titled, DHS/
ICE018 Analytical Records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. The DHS/ICE018
Analytical Records system of records notice was published concurrently in the Federal Register, 86 FR 15246, March 22, 2021, and comments were invited on both the Notice of Proposed Rulemaking NPRM and System of Records Notice SORN.
Public Comments DHS received four comments on the NPRM, two of which also referenced the SORN.
NPRM
All comments related to the NPRM
state that exempting the SORN from portions of the Privacy Act will restrict the publics ability to demand transparency regarding ICE analytical systems.
The first concern commenters presented was that ICEs claiming of Privacy Act exemptions create a lack of transparency in ICE operations and the analytical systems themselves, stating:
the American public has the right to know how our tax dollars are being spent and if their tax dollars are being spent wisely and ethically in regards to immigrants and exemptions under the Privacy Act will not just protect DHS system of records but also the data, software, and systems owned by private companies, perpetuating further a lack of transparency in deportations and other investigations under the guise of national security.
As discussed in the SORN and below, individuals about whom ICE maintains information in its records systems may still submit a Privacy Act amendment request or a request for access to information. While ICE has exempted this system of records from the access and amendment provisions of the Privacy Act, it will still consider these requests on a case-by-case basis to ensure that agency data is complete, accurate, and current.
Further, to provide the greatest access to information, ICE considers individuals requests under both the Privacy Act and the Freedom of
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Information Act FOIA. To this end, the public can seek records described in the Analytical Records SORN under FOIA.
In contrast to the broad scope of FOIA, 5 U.S.C. 552, the Privacy Act is narrowly focused on individuals personal information maintained in agency systems of records. As stated in the comment, the Privacy Act is meant to . . . ensure accuracy of and individuals access to information that agencies gather about them. FOIAs broad scope allows the public access to governmental information generally.
This includes information on data, systems, and connections within the agency. Subsections t1 and t2 of the Privacy Act prohibit agencies not only from restricting an individuals access to his/her record under FOIA
based solely on claimed Privacy Act exemptions, but also from withholding records under the Privacy Act based on FOIA exemptions. Information about filing a FOIA request with ICE is available at www.ice.gov/foia.
The publication process for the Analytical Records SORN as required by the Privacy Act promotes the accountability, responsibility, legislative oversight, and open government requested by commenters. Subsection r of the Privacy Act requires agencies, when establishing or significantly modifying a system of records, to provide adequate advance notice to the Office of Management and Budget OMB, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate. This advance notice is separate from the public comment period ICE is engaging in here.
The advanced notice that ICE provided to OMB and the committees of jurisdiction in Congress allows each body to make an evaluation of the probable or potential effects of ICEs proposal on the privacy or other rights of individuals.
Finally, in addition to the publication of SORNs here in the Federal Register, ICE also provides transparency into its systems through the publication of Privacy Impact Assessments PIA. PIAs are conducted in accordance with the EGovernment Act of 2002 Pub. L. 107
347 by ICE Privacy personnel, are reviewed by the DHS Privacy Office, and signed by the DHS Chief Privacy Officer. PIAs describe how ICE
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