Privacy Act of 1974; Implementation
| Published date | 21 November 2019 |
| Citation | 84 FR 64198 |
| Record Number | 2019-25080 |
| Section | Rules and Regulations |
| Court | Justice Department |
Federal Register, Volume 84 Issue 225 (Thursday, November 21, 2019)
[Federal Register Volume 84, Number 225 (Thursday, November 21, 2019)]
[Rules and Regulations]
[Pages 64198-64200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25080]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 11-2019]
Privacy Act of 1974; Implementation
AGENCY: Executive Office for Immigration Review, United States
Department of Justice.
ACTION: Final rule.
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SUMMARY: The Executive Office for Immigration Review (EOIR), a
component within the United States Department of Justice (DOJ or
Department), is finalizing without changes its Privacy Act exemption
regulations for the system of records titled, Office of the Chief
Administrative Hearing Officer (OCAHO) Case Management System (CMS),
JUSTICE/EOIR-002, which were published as a Notice of Proposed
Rulemaking (NPRM) on August 16, 2019. Specifically, the Department's
regulations will exempt the records maintained in JUSTICE/EOIR-002 from
one or more provisions of the Privacy Act. The exemptions are necessary
to ensure the integrity of investigatory and adjudicatory records in
cases before OCAHO. The Department received two comments and neither
comments were substantive.
DATES: This final rule is effective December 23, 2019.
FOR FURTHER INFORMATION CONTACT: Michelle Curry, Associate General
Counsel and Senior Component Official for Privacy, Office of the
General Counsel, Executive Office for Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church, VA 22041, by email at
[email protected], or by facsimile at 703-305-0443.
[[Page 64199]]
SUPPLEMENTARY INFORMATION:
Background
EOIR created a new system of records subject to the Privacy Act of
1974, 5 U.S.C. 552a. The system of records will be used by OCAHO to
facilitate adjudication of its cases and may include paper and
electronic files maintained by OCAHO. The records to be maintained in
this new system historically have been included as part of EOIR-001,
Records and Management Information System. They are being transferred
into this new system to improve efficiency, improve records management
practices, and provide better access for parties to proceedings.
OCAHO Administrative Law Judges (ALJs) hear cases and adjudicate
issues arising under the provisions of the Immigration and Nationality
Act (INA) relating to: (1) Knowingly hiring, recruiting or referring
for a fee, or continuing to employ unauthorized aliens, failure to
comply with employment eligibility verification requirements, and
requiring indemnity bonds from employees in violation of section 274A
of the INA (8 U.S.C. 1324a), (2) immigration-related unfair employment
practices in violation of section 274B of the INA (8 U.S.C. 1324b), and
(3) immigration-related document fraud in violation of section 274C of
the INA (8 U.S.C. 1324c).
Complaints under sections 274A and 274C of the INA are filed by the
U.S. Department of Homeland Security (DHS), Immigration and Customs
Enforcement (ICE). Complaints under section 274B of the INA may be
filed by private individuals or entities, or by the U.S. Department of
Justice, Civil Rights Division, Immigrant and Employee Rights Section
(DOJ/CRT). The respondents in OCAHO cases are typically businesses or
employers. The parties to 274A and 274C cases may seek administrative
review of ALJ decisions and orders by the Chief Administrative Hearing
Officer (CAHO). Parties in all case types may appeal final agency
orders to the appropriate United States Circuit Court of Appeals.
In order to process and adjudicate cases and appeals, OCAHO must
collect certain information and documents from and about complainants
and respondents. The DOJ/CRT and DHS ICE can file complaints with
OCAHO. Often, these agencies will submit investigatory records as
exhibits or attachments to other filings. The investigatory records
include, but are not limited to, notices of inspection, summaries of
inspection results, affidavits or memoranda from investigators, results
from searches of internal agency databases, and similar records. These
exhibits or attachments then become part of OCAHO's official case
record.
To improve tracking and storage of case-related information and
documents, OCAHO is implementing a new electronic case management
system (CMS). The OCAHO CMS will manage the entire life cycle of
OCAHO's case processes, including tracking and managing case
information and documents, facilitating case research, and reporting on
key business functions and metrics. The OCAHO CMS will also include an
electronic filing capability, which will enable parties to submit case
information and documents electronically through a secure web-based
portal. The portal will also provide notifications and updates on case
status, and will allow authorized parties to access copies of all case-
related documents electronically. The system is segregated by ``need to
know'' user controls and allows authorized users to track various
stages of the proceedings. The system also contains templates to
generate letters, notices, and decisions used in the OCAHO process. The
system can generate reports by case status and disposition.
Response to Public Comments
In its OCAHO CMS NPRM and Notice of a New System of Records,
published on August 16, 2019, the Department invited public comment (84
FR 41940 and 84 FR 42016). The comment periods for both notices closed
on September 16, 2019. The Department received two comments from
individuals. The Department has closely reviewed and considered these
comments. Both comments received were concerned with the general
appropriateness of exempting records from certain provisions of the
Privacy Act, including the provision for individual access to records
under the Act. Congress recognized the need for exemptions to these
provisions of the Privacy Act to ensure the integrity of investigatory
and adjudicatory records. As noted in the NPRM, the exemptions taken
here apply in ``limited circumstances,'' only to the extent information
in this system comes within the scope of 5 U.S.C. 552a(k)(1) and (2).
Executive Orders 12866, 13563, 13771--Regulatory Review
In accordance with 5 U.S.C. 552a(j) and 552a(k), this action is
subject to rulemaking procedures, which give interested persons an
opportunity to participate in the rulemaking process ``through
submission of written data, views, or arguments,'' pursuant to 5 U.S.C.
553. The exemptions claimed by the system, as detailed below, do not
raise novel legal or policy issues, nor do they adversely affect the
economy, the budgetary impact of entitlements, grants, user fees, loan
programs, or the rights and obligations of recipients thereof in a
material way. The Department of Justice has determined that this rule
is not a ``significant regulatory action'' under Executive Order 12866,
section 3(f), and accordingly this rule has not been reviewed by the
Office of Information and Regulatory Affairs within the Office of
Management and Budget.
Regulatory Flexibility Act
This regulation will only impact Privacy Act-protected records,
which are personal and generally do not apply to an individual's
entrepreneurial capacity, subject to limited exceptions. Accordingly,
the Chief Privacy and Civil Liberties Officer, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
regulation and by approving it certifies that this regulation will not
have a significant economic impact on a substantial number of small
entities.
Congressional Review Act
This rule is not a major rule as defined by 5 U.S.C. 804 of the
Congressional Review Act.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
the Department to consider the impact of paperwork and other
information collection burdens imposed on the public. The Paperwork
Reduction Act applies to some of the records collected as part of this
system of records. The following approved information collection is
associated with this system of records: Form EOIR-58, Unfair
Immigration-Related Employment Practices Complaint Form, and OMB #1125-
0016. This system of records will also collect information via a web-
based electronic filing portal. The Department is in the process of
seeking approval of this information collection under the Paperwork
Reduction Act.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local
and tribal governments, in the aggregate, or by the private sector, of
$100,000,000, as adjusted for inflation, or more in any one year; and
it will not significantly or uniquely affect small governments.
Therefore, no actions were deemed necessary under the provisions of the
[[Page 64200]]
Unfunded Mandates Reform Act of 1995.
List of Subjects in 28 CFR Part 16
Administrative practices and procedures, Courts, Freedom of
information, Privacy Act.
Pursuant to the authority vested in the Attorney General by 5
U.S.C. 552a and delegated to me by Attorney General Order 2940-2008,
the Department of Justice amends 28 CFR part 16 as follows:
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
0
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717.
0
2. Amend Sec. 16.83 by adding paragraphs (e) and (f) to read as
follows:
Sec. 16.83 Exemption of the Executive Office for Immigration Review
System--limited access.
* * * * *
(e) The following system of records is exempt from 5 U.S.C.
552a(d): Office of the Chief Administrative Hearing Officer (OCAHO)
Case Management System (CMS) (JUSTICE/EOIR-002). This exemption applies
only to the extent that information in the system is subject to
exemption pursuant to 5 U.S.C. 552a(k)(1) and (2).
(f) Exemption from 5 U.S.C. 552a(d) is justified for the system of
records in paragraph (e) of this section for the following reasons:
(1) In limited circumstances, from subsection (d) when access to
the records contained in the system of records in paragraph (e) of this
section could inform the subject of an ongoing investigation of an
actual or potential criminal, civil, or regulatory violation or the
existence of that investigation; of the nature and scope of the
information and evidence obtained as to the subject's activities; of
the identity of confidential sources, witnesses, and law enforcement
personnel; and of information that may enable the subject to avoid
detection or apprehension. These factors would present a serious
impediment to effective law and regulatory enforcement where they
prevent the successful completion of the investigation, endanger the
physical safety of confidential sources, witnesses, and law enforcement
personnel; and/or lead to the improper influencing of witnesses, the
destruction of evidence, or the fabrication of testimony. In addition,
granting access to such information could disclose security-sensitive
or confidential business information or information that would
constitute an unwarranted invasion of the personal privacy of third
parties.
(2) From subsections (d)(2), (3), and (4) because the
administrative case files constitute an official record which includes
transcripts of administrative proceedings, investigatory materials,
evidentiary materials such as exhibits, decisional memoranda, and other
case-related papers. Administrative due process could not be achieved
by the ex parte ``correction'' of such materials by the individual who
is the subject thereof.
Dated: November 14, 2019.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2019-25080 Filed 11-20-19; 8:45 am]
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