[Federal Register Volume 71, Number 144 (Thursday, July 27, 2006)]
[Proposed Rules]
[Pages 42603-42604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11996]


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 Proposed Rules
                                                 Federal Register
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 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. 71, No. 144 / Thursday, July 27, 2006 / 
Proposed Rules  

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DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 5

[Docket No. DHS-2006-0035]


Privacy Act of 1974: Implementation of Exemptions

AGENCY: Office of the Secretary, Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a revised and updated system of records pursuant to the 
Privacy Act of 1974 for the Automated Biometric Identification System. 
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 August 28, 2006.

ADDRESSES: You may submit comments, identified by docket number DHS-
2006-0035, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: (202) 298-5201.
     Mail: Steve Yonkers, US-VISIT Privacy Officer, 245 Murray 
Lane, SW., Washington, DC 20538; Maureen Cooney, Acting Chief Privacy 
Officer, Department of Homeland Security, 601 S. 12th Street, 
Arlington, VA 22202-4220.
    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: Steve Yonkers, US-VISIT Privacy 
Officer, 245 Murray Lane, SW., Washington, DC 20538, by telephone (202) 
298-5200, or by facsimile (202) 298-5201.

SUPPLEMENTARY INFORMATION:

Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) is publishing a revision to 
existing Privacy Act systems of records known as Enforcement 
Operational Immigration Records/Automated Biometric Identification 
System (ENFORCE/IDENT) in today's edition of the Federal Register. This 
proposed rule would exempt certain records from the access and 
amendment provisions of law as permitted by the Privacy Act.
    ENFORCE is the primary administrative case management system for 
Immigration and Customs Enforcement (ICE). IDENT is the primary 
repository of biometric 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 (including the 
immigration law); investigations, inquiries, and proceedings 
thereunder; and national security and intelligence activities. IDENT is 
a centralized and dynamic DHS-wide biometric database that also 
contains limited biographic and encounter history information needed to 
place the biometric information in proper context. The information 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.
    For business purposes these two systems were operated jointly. Now, 
as a part of operational and technical restructuring, these systems 
will be operated independently--IDENT under the management of US-VISIT 
and ENFORCE under the management of ICE. Consequently, the ENFORCE/
IDENT system notice is being split into two system notices: One for 
ENFORCE and one for IDENT. The Privacy Act notice for ENFORCE/IDENT was 
last published in the Federal Register on March 20, 2006 (71 FR 13987). 
In this notice of proposed rulemaking, DHS now is proposing to exempt 
IDENT, in part, from certain provisions of the Privacy Act.
    The Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States Government 
collects, maintains, uses, and disseminates 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. 
Individuals may request their own records that are maintained in a 
system of records in the possession or under the control of DHS by 
complying with DHS Privacy Act regulations, 6 CFR part 5.
    The Privacy Act requires each agency to publish in the Federal 
Register a description of the type and character of each system of 
records that the agency maintains, and the routine uses that are 
contained in each system in order to make agency recordkeeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals in finding such files within the agency.
    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 exemption from certain requirements of the Privacy 
Act for IDENT. Some information in IDENT relates to official DHS 
national security, immigration and border management, and law 
enforcement 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

[[Page 42604]]

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.
    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

    Privacy, Freedom of information.

    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. Amend Appendix C to part 5 by adding the following new paragraph 
6:

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

* * * * *
    6. The Department of Homeland Security Automated Biometric 
Identification System (IDENT) consists of electronic and paper records 
and will be used by DHS and its components. IDENT is the primary 
repository of biometric 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 (including the 
immigration law); investigations, inquiries, and proceedings 
thereunder; and national security and intelligence activities. IDENT is 
a centralized and dynamic DHS-wide biometric database that also 
contains limited biographic and encounter history information needed to 
place the biometric information in proper context. The information 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.
    Pursuant to exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act, 
portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); 
(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); 
(f)(2) through (5); and (g). Pursuant to 5 U.S.C. 552a(k)(2), this 
system is exempt from the following provisions of the Privacy Act, 
subject to the limitations set forth in those subsections: 5 U.S.C. 
552a (c)(3), (d), (e)(1), (e)(4)(G), and (e)(4)(H). 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 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 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 an investigation, thereby interfering with the related 
investigation and law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information would impede law enforcement in that it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G) and (H) (Agency Requirements), and 
(f)(2 through 5) (Agency Rules) because portions of this system are 
exempt from the individual access provisions of subsection (d) and 
thereby would not require DHS to establish requirements or rules for 
records which are exempted from access.
    (g) From subsection (e)(5) (Collection of Information) because in 
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 (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' 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) to the extent that the system is exempt 
from other specific subsections of the Privacy Act.

    Dated: July 16, 2006.
Maureen Cooney,
Acting Chief Privacy Officer.
[FR Doc. E6-11996 Filed 7-26-06; 8:45 am]
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