[Federal Register Volume 72, Number 135 (Monday, July 16, 2007)]
[Rules and Regulations]
[Pages 38749-38750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13576]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 72, No. 135 / Monday, July 16, 2007 / Rules
and Regulations
[[Page 38749]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2007-0044]
Privacy Act of 1974; Implementation of Exemptions
AGENCY: Privacy Office, Office of the Secretary, Department of Homeland
Security.
ACTION: Final rule.
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SUMMARY: On July 27, 2006 the Department of Homeland Security published
a notice of proposed rulemaking to exempt portions of the Automated
Biometric Identification System (IDENT) system of records from one or
more provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements. No comments were received so
this final rule adopts the proposed rule of July 27, 2006, without
change.
DATES: This final rule is effective August 15, 2007.
FOR FURTHER INFORMATION CONTACT: Claire Miller, Acting US-VISIT Privacy
Officer, Washington, DC 20528, by telephone (202) 298-5200, or by
facsimile (202) 298-5201.
SUPPLEMENTARY INFORMATION:
Background
On July 27, 2006 the Department of Homeland Security published a
notice of proposed rulemaking to exempt portions of the Automated
Biometric Identification System (IDENT) system of records notice from
one or more provisions of the Privacy Act because of criminal, civil,
and administrative enforcement requirements. This proposed rule would
exempt certain records from the access and amendment provisions of law
as permitted by the Privacy Act. No comments were received in response
to this notice of proposed rulemaking, so this final rule adopts the
proposed rule of July 27, 2006, without change.
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, unique identifiers, 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.
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 rulemaking to make clear to the
public the reasons why a particular exemption is claimed.
By this rule 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 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 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.
0
For the reasons stated in the preamble, DHS amends Chapter I of Title
6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
0
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.
0
2. Amend Appendix C to part 5 by adding a new section 4 to read as
follows:
Appendix C--DHS Systems of Records Exempt From the Privacy Act
* * * * *
4. 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
[[Page 38750]]
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 5, 2007.
Hugo Teufel III,
Chief Privacy Officer.
[FR Doc. E7-13576 Filed 7-13-07; 8:45 am]
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