[Federal Register Volume 72, Number 162 (Wednesday, August 22, 2007)]
[Proposed Rules]
[Pages 46921-46922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16461]


 ========================================================================
 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. 72, No. 162 / Wednesday, August 22, 2007 / 
Proposed Rules  

[[Page 46921]]



DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 5


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 Arrival and Departure Information System 
(ADIS). In this proposed rulemaking, the Department proposes to exempt 
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 21, 2007.

ADDRESSES: You may submit comments, identified by docket number DHS-
2007-0050, 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, Department of 
Homeland Security, Washington, DC 20528.
    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, contact Claire 
Miller, Acting US-VISIT Privacy Officer, 245 Murray Lane, SW., 
Washington, DC 20528. For privacy-related questions, contact Hugo 
Teufel III, Chief Privacy Officer, Department of Homeland Security, 
Washington, DC 20528; telephone (703) 235-0780.

SUPPLEMENTARY INFORMATION:

Background

    The Department of Homeland Security (DHS) is republishing the 
Privacy Act system of records notice for the Arrival and Departure 
Information System (ADIS) in order to expand its authority and 
capability to serve additional programs that require information on 
individuals throughout the immigrant and non-immigrant pre-entry, 
entry, status management, and exit processes. These changes include the 
addition of a routine use to allow sharing of information with the 
intelligence community in support of the DHS mission to protect the 
United States from potential terrorist activities; the addition of a 
routine use for cases of identity theft; clarification on the sources 
of data in ADIS, potentially including foreign governments; and a 
reduction of the retention period for ADIS data. The notice for this 
system of records was last published in the Federal Register on 
December 12, 2003 (68 FR 69412). In this notice of proposed rulemaking, 
DHS now is proposing to exempt ADIS 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 an 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 ADIS. Information in ADIS relates to official DHS national 
security, law enforcement, immigration, and intelligence activities. 
These exemptions are needed to protect information relating to DHS 
investigatory and enforcement 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 an 
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:


[[Page 46922]]


    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 ``5'' to read as follows:

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

* * * * *
    5. The Department of Homeland Security Arrival and Departure 
Information System (ADIS) consists of centralized computerized 
records and will be used by DHS and its components. ADIS is the 
primary repository of data held by DHS for near real-time immigrant 
and non-immigrant status tracking through pre-entry, entry, status 
management, and exit processes, based on data collected by DHS or 
other Federal or foreign government agencies and used in connection 
with DHS national security, law enforcement, immigration, 
intelligence, and other DHS mission-related functions, and to 
provide associated testing, training, management reporting, planning 
and analysis, or other administrative uses. 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, 
this system is 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), (e)(8); (f); 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), (e)(4)(H); and (f). Exemptions from these particular 
subsections are justified, on a case-by-case basis to be determined 
at the time a request for release or disclosure 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 that 
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 that 
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 
unreasonable administrative burden by requiring investigations to be 
continually 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 the investigation, thereby interfering with 
that investigation and related law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information could impede law enforcement by 
compromising the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G) and (H) and (f) (Agency 
Requirements) because portions of this system are exempt from the 
individual access provisions of subsection (d) and thus would not 
require DHS to apply rules for records or portions of records which 
are exempted from access or amendment upon request. Access to, and 
amendment of, system records that are not exempt or for which 
exemption is waived may be obtained under procedures described in 
the related system of records notice (SORN) or Subpart B of this 
Part.
    (g) From subsection (e)(5) (Collection of Information) because 
with 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 subsection (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's 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) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

    Dated: August 15, 2007.
John Kropf,
Acting Chief Privacy Officer, Department of Homeland Security.

[FR Doc. E7-16461 Filed 8-21-07; 8:45 am]
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