[Federal Register Volume 73, Number 206 (Thursday, October 23, 2008)]
[Rules and Regulations]
[Pages 63058-63060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24996]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2008-0104]


Privacy Act of 1974: Implementation of Exemptions; Immigration 
and Customs Enforcement (ICE) General Counsel Electronic Management 
System (GEMS)

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of a new system of records 
entitled the ``Immigration and Customs Enforcement General Counsel 
Electronic Management System'' (GEMS) from certain provisions of the 
Privacy Act. Specifically, the Department exempts portions of the GEMS 
system from one or more provisions of the Privacy Act because of 
criminal, civil, and administrative enforcement requirements.

DATES: Effective Date: This final rule is effective October 23, 2008.

FOR FURTHER INFORMATION CONTACT: Lyn Rahilly, Privacy Officer, U.S. 
Immigration and Customs Enforcement, 425 I Street, NW., Washington, DC 
20536, e-mail: [email protected], or Hugo Teufel III (703-235-0780), 
Chief Privacy Officer, Privacy Office, U.S. Department of Homeland 
Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION: 

Background

    The Department of Homeland Security (DHS) published a notice of 
proposed rulemaking in the Federal Register, 71 FR 16519, April 3, 
2006, proposing to exempt portions of the system of records from one or 
more provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements. The system of records is the 
ICE General Counsel Electronic Management System (GEMS). The GEMS 
system of records notice (SORN) was published in the Federal Register, 
71 FR 16326, March 31, 2006. Comments were invited on both the proposed 
rule and SORN. No comments were received from the public regarding 
either the SORN or the proposed rule. Therefore, no changes have been 
made to the rule or the SORN, and DHS is implementing the final rule as 
published.
    DHS is claiming exemption from certain requirements of the Privacy 
Act

[[Page 63059]]

for GEMS because the system will consist of information that is created 
or acquired and used by ICE attorneys working on the preparation and 
presentation of cases for a court or adjudicative body before which ICE 
or DHS is authorized or required to appear. Attorneys for the 
Department of Justice will also be able to access the system if they 
have a need for the information in the performance of their official 
duties.
    ICE attorneys work closely with investigators throughout the 
process of adjudicating immigration cases. ICE attorneys must have 
access to investigative documents and related materials in order to 
form their decisions about how to handle particular cases.
    Additionally, ICE attorneys create attorney work product associated 
with immigration proceedings. The GEMS system will facilitate the 
collection and maintenance of materials used by ICE attorneys in 
immigration adjudications. It will supplement and ultimately replace 
the current attorney work product paper files that are primarily stored 
and managed in the hardcopy alien file commonly known as the ``A-
file.''
    In this final rule, DHS is exempting this system, in part, from 
certain provisions of the Privacy Act and adding that exemption to 
Appendix C to Part 5, DHS Systems of Records.
    Pursuant to the requirements of the Regulatory Flexibility Act, 5 
U.S.C. 601-612, DHS certifies that these regulations will not 
significantly affect a substantial number of small entities. The final 
rule imposes no duties or obligations on small entities. Further, in 
accordance with the provisions of the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501, DHS has determined that this final rule would not 
impose new record keeping, application, reporting, or other types of 
information collection requirements.

Regulatory Requirements

A. Regulatory Impact Analyses

    Changes to Federal regulations must undergo several analyses. In 
conducting these analyses, DHS has determined:
1. Executive Order 12866 Assessment
    This rule is not a significant regulatory action under Executive 
Order 12866, ``Regulatory Planning and Review'' (as amended). 
Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB). Nevertheless, DHS has reviewed this 
rulemaking, and concluded that there will not be any significant 
economic impact.
2. Regulatory Flexibility Act Assessment
    Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5 
U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement 
and Fairness Act of 1996 (SBREFA), DHS certifies that this rule will 
not have a significant impact on a substantial number of small 
entities. The rule would impose no duties or obligations on small 
entities. Further, the exemptions to the Privacy Act apply to 
individuals, and individuals are not covered entities under the RFA.
3. International Trade Impact Assessment
    This rulemaking will not constitute a barrier to international 
trade. The exemptions relate to investigations of violations of civil 
or criminal laws and, therefore, do not create any new costs or 
barriers to trade.
4. Unfunded Mandates Assessment
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub. 
L. 104-4, 109 Stat. 48), requires Federal agencies to assess the 
effects of certain regulatory actions on State, local, and tribal 
governments, and the private sector. This rulemaking will not impose an 
unfunded mandate on State, local, or tribal governments, or on the 
private sector.

B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that DHS consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA section 3507(d), obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. DHS has determined 
that there are no current or new information collection requirements 
associated with this rule.

C. Executive Order 13132, Federalism

    This action will not have a substantial direct effect on the 
States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, and therefore will not have federalism 
implications.

D. Environmental Analysis

    DHS has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has 
determined that this action will not have a significant effect on the 
human environment.

E. Energy Impact

    The energy impact of this action has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163, 
as amended (42 U.S.C. 6362). This rulemaking is not a major regulatory 
action under the provisions of the EPCA.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

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.


0
2. At the end of Appendix C to Part 5, add the following new paragraph 
11 to read as follows:

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    11. The General Counsel Electronic Management System (GEMS) 
consists of records and information created or collected by 
attorneys for U.S. Immigration and Customs Enforcement, which will 
be used in the preparation and presentation of cases before a court 
or other adjudicative body. ICE attorneys work closely with ICE law 
enforcement personnel throughout the process of adjudicating 
immigration cases. GEMS allows ICE attorneys to store all the 
materials pertaining to immigration adjudications, including 
documents related to investigations, case notes and other hearing 
related information, and briefs and memoranda of law related to 
cases. Having this information in one system should not only 
facilitate the work of the ICE attorneys involved in the particular 
case, but also will provide a legal resource for other attorneys who 
are adjudicating similar cases. The system will also provide 
management capabilities for tracking time and effort expended in the 
preparation and presentation of cases. 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)(1) and (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 is made, for the following 
reasons:
    (a) From subsection (c)(3) (Accounting for Disclosures) because 
release of the accounting of disclosures could alert the

[[Page 63060]]

subject of an investigation of an actual or potential criminal, 
civil, or regulatory violation, to the existence of the 
investigation, which in some cases may be classified, and reveal 
investigative interest on the part of DHS or ICE. 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, tamper with 
witnesses or evidence, and 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 pertaining to an immigration matter, 
which in some cases may be classified, and prematurely 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, tamper with witnesses or 
evidence, and 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 immigration 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 and for 
the protection of national security, 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 of the 
nature or existence of an investigation, which could cause 
interference with the investigation, a related inquiry or other law 
enforcement activities, some of which may be classified.
    (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), 
(f) (Agency Rules), and (g) (Civil Remedies) because portions of 
this system are exempt from the individual access provisions of 
subsection (d).
    (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.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with ICE'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) to the extent that the system is exempt 
from other specific subsections of the Privacy Act.

Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
 [FR Doc. E8-24996 Filed 10-22-08; 8:45 am]
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