[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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  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.

-----------------------------------------------------------------------

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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