[Federal Register Volume 73, Number 160 (Monday, August 18, 2008)]
[Proposed Rules]
[Pages 48155-48156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19034]
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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. 73, No. 160 / Monday, August 18, 2008 /
Proposed Rules
[[Page 48155]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2007-0055]
Privacy Act of 1974: Implementation of Exemptions; Fraud
Detection and National Security Data System (FDNS-DS) System of Records
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security is concurrently
establishing a new system of records pursuant to the Privacy Act of
1974 entitled the Technical Fraud Detection and National Security Data
System (FDNS-DS). The USCIS has developed the Fraud Detection and
National Security Data System (FDNS-DS), a case management system used
to record, track, and manage immigration inquiries, investigative
referrals, law enforcement requests, and case determinations involving
benefit fraud, criminal activity, public safety and national security
concerns. 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 September 17, 2008.
ADDRESSES: You may submit comments, identified by docket number DHS-
2007-0055, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 1-866-466-5370.
Mail: Hugo Teufel III, 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 rulemaking. 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.
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 questions please contact:
United States Citizenship and Immigration Services, Privacy Officer,
Donald Hawkins 111 Massachusetts Avenue, NW., Washington, DC 20529. For
privacy issues please contact: Hugo Teufel III (703-235-0780), Chief
Privacy Officer, Privacy Office, U.S. Department of Homeland Security,
Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The Office of Fraud Detection and National Security (FDNS) of the
United States Citizenship and Immigration Services (USCIS) has
developed a new system named the Fraud Detection and National Security
Data System (FDNS-DS). FDNS-DS is a central repository that permits
specially-trained employees to record, track, and manage the background
check and adjudicative processes related to immigration applications
and petitions with suspected or confirmed fraud, criminal activity,
egregious public safety, and/or national security concerns, and cases
randomly selected for benefit fraud assessments (BFAs). The system will
also have the capability to track the following:
1. USCIS investigative referrals to law enforcement agencies
(LEAs);
2. LEA referrals to USCIS concerning subjects with pending
immigration benefit applications or petitions;
3. background check referrals and resolutions associated with
suspected or confirmed fraud, criminal activity, egregious public
safety, and/or national security concerns; and
4. any additional inquiries conducted in order to confirm that the
information on file is correct.
FDNS has created FDNS-DS, a centralized data system, in order to
increase the effectiveness of the United States (U.S.) immigration
system in identifying threats to national security, combating benefit
fraud, and locating and removing vulnerabilities that compromise the
integrity of the legal immigration system. With the implementation of
FDNS-DS, USCIS's capabilities for detecting and tracking benefit fraud
and other criminal activity--and conducting efficient and accurate
background check resolutions and adjudication of national security
cases will be increased.
In order to achieve the goals discussed above, FDNS-DS will store
data related to immigration applications involving suspected or
confirmed fraud, criminal activity, egregious public safety, and/or
national security concerns. The data will include the results of
required background checks conducted in connection with pending
petitions/applications that result in subsequent inquiries conducted to
resolve the background check results. FDNS-DS will also contain the
following information related to cases involving suspected or confirmed
fraud, criminal activity, egregious public safety, and/or national
security concerns: USCIS investigative referrals to law enforcement
agencies (LEAs) of suspected or confirmed fraud or other criminal
activity; LEA referrals to USCIS related to pending applications;
referrals to USCIS from the public or other governmental entities or
fraud case referrals from the Benefit Fraud Assessment (BFA) process
(``other referrals''); adverse information identified by USCIS from
applications, administrative files, interviews, written requests for
evidence (RFEs) or site visits; results of resolution of any of the
above-described categories of adverse information; and adjudicative
summaries and decisions.
FDNS-DS will store information concerning cases randomly selected
for BFAs and will track interactions with Immigration and Citizenship
Enforcement (ICE) and other LEAs (e.g., the Federal Bureau of
Investigation [FBI], the Drug Enforcement
[[Page 48156]]
Administration [DEA], and U.S. Customs and Border Protection [CBP]) in
cases involving fraud or other criminal activity, and the Department of
State in cases involving fraud related to selected types of visas for
entry into the United States.
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.
In this Notice of Proposed Rulemaking, DHS now is proposing to
exempt FDNS-DS, in part, from certain provisions of the Privacy Act.
Some information in FDNS-DS relates to official DHS law enforcement,
intelligence, and immigration 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 of immigration and border management and
law enforcement personnel; to ensure DHS's ability to obtain
information from third parties and other sources; and to protect the
privacy of third parties. Disclosure of information to the subject of
the inquiry could also permit the subject to avoid detection or
apprehension.
The exemptions proposed here are standard law enforcement and
national security exemptions exercised by a large number of Federal law
enforcement and intelligence agencies. 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.
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
1. The authority citation for part 5 continues to read as follows:
Authority: Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et
seq.; 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.
2. At the end of appendix C to part 5, add the following new
paragraph ``7'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
7. The Department of Homeland Security United States Citizenship
and Immigration Services Fraud Detection and National Security Data
System (FDNS-DS) System of Records consists of a stand-alone
database and paper files that will be used by DHS and its
components. FDNS-DS is a case management system used to record,
track, and manage immigration inquiries, investigative referrals,
law enforcement requests, and case determinations involving benefit
fraud, criminal activity, public safety and national security
concerns.
The Secretary of Homeland Security has exempted this system from
5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I),
and (f) pursuant to 5 U.S.C. 552a(k)(2). These exemptions apply only
to the extent that records in the system are subject to exemption
pursuant to 5 U.S.C. 552a(k)(2). 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 the 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 the
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
impossible administrative burden by requiring investigations to be
continuously 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) and (e)(4)(H) (Agency
Requirements) because portions of this system are exempt from the
individual access provisions of subsection (d) which exempts
providing access because it could alert a subject to the nature or
existence of an investigation, and thus there could be no procedures
for that particular data. Procedures do exist for access for those
portions of the system that are not exempted.
(e) From subsection (e)(4)(I) (Agency Requirements) because
providing such source information would impede law enforcement or
intelligence by compromising the nature or existence of a
confidential investigation.
(f) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of
subsection (d).
Dated: August 11, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-19034 Filed 8-15-08; 8:45 am]
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