[Federal Register Volume 73, Number 237 (Tuesday, December 9, 2008)]
[Proposed Rules]
[Pages 74632-74633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29047]

Proposed Rules
                                                Federal Register

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.


Federal Register / Vol. 73, No. 237 / Tuesday, December 9, 2008 / 
Proposed Rules

[[Page 74632]]


Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2008-0182]

Privacy Act of 1974: Implementation of Exemptions; Immigration 
and Customs Enforcement Search, Arrest, and Seizure Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of Proposed Rule Making.


SUMMARY: The Department of Homeland Security (DHS) is giving concurrent 
notice of a revised and updated system of records pursuant to the 
Privacy Act of 1974 for the Immigration and Customs Enforcement (ICE) 
Search, Arrest, and Seizure Records system of records and this proposed 
rulemaking. In this proposed rulemaking, the Department proposes 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 exemptions for the legacy system of 
records notices will continue to be applicable until the final rule for 
this SORN has been completed.

DATES: Comments must be received on or before January 8, 2009.

ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0182, 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 please contact: 
Lyn Rahilly, Privacy Officer, (202-732-3300), Immigration and Customs 
Enforcement, 500 12th Street, SW., Washington, DC 20024, e-mail: 
[email protected]. For privacy issues, please contact: Hugo Teufel III 
(703-235-0780), Chief Privacy Officer, Privacy Office, Department of 
Homeland Security, Washington, DC 20528.

    Background: Pursuant to the savings clause in the Homeland Security 
Act of 2002, Public Law 107-296, Section 1512, 116 Stat. 2310 (November 
25, 2002), DHS and its component agency ICE have relied on preexisting 
Privacy Act system of records notices for the collection and 
maintenance of records pertaining to ICE's arrests of individuals, and 
searches, detentions, and seizures of property pursuant to ICE's law 
enforcement authorities. As part of its efforts to streamline and 
consolidate its record systems, DHS is establishing a component system 
of records under the Privacy Act (5 U.S.C. 552a) for ICE to cover these 
records. The collection and maintenance of this information will assist 
ICE in meeting its obligation to record its actions regarding searches 
of individuals and property, arrests of individuals, and detentions and 
seizures of property and goods pursuant to ICE's law enforcement 
    In this notice of proposed rulemaking, DHS is now proposing to 
exempt Search, Arrest, and Seizure Records, 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 
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for Search, Arrest, and Seizure Records. Some information in 
Search, Arrest, and Seizure Records relates to official DHS national 
security, law enforcement, immigration, and intelligence 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 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 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

[[Page 74633]]

exemptions may be waived on a case by case basis.
    A notice of system of records for Search, Arrest, and Seizure 
Records is also published in this issue of the Federal Register.

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:


    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. Add at the end of Appendix C to Part 5, Exemption of Record 
Systems under the Privacy Act, the following new paragraph ``14'':

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

* * * * *
    14. The Department of Homeland Security/United States 
Immigration and Customs Enforcement Search, Arrest, and Seizure 
Records system of records consists of electronic and paper records 
and will be used by DHS and its components. Search, Arrest, and 
Seizure Records is a repository of 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; investigations, inquiries, and proceedings thereunder; and 
national security and intelligence activities. Search, Arrest, and 
Seizure Records contains information that 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 exemption 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), and (g). Pursuant to 5 U.S.C. 552a(k)(2) of the Privacy 
Act, 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) 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 
    (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 investigations by: Revealing the existence 
of an otherwise confidential investigation and thereby provide an 
opportunity for the subject of an investigation to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative efforts; reveal the identity of witnesses in 
investigations, thereby providing an opportunity for the subjects of 
the investigations or others to harass, intimidate, or otherwise 
interfere with the collection of evidence or other information from 
such witnesses; or reveal the identity of confidential informants, 
which would negatively affect the informant's usefulness in any 
ongoing or future investigations and discourage members of the 
public from cooperating as confidential informants in any future 
    (f) From subsections (e)(4)(G) and (H) (Agency Requirements), 
and (f) (Agency Rules) because portions of this system are exempt 
from the individual access provisions of subsection (d) for the 
reasons noted above, and therefore DHS is not required to establish 
requirements, rules, or procedures with respect to such access. 
Providing notice to individuals with respect to existence of records 
pertaining to them in the system of records or otherwise setting up 
procedures pursuant to which individuals may access and view records 
pertaining to themselves in the system would undermine investigative 
efforts and reveal the identities of witnesses, and potential 
witnesses, and confidential informants.
    (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 
    (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 relating to 
individuals' rights to access and amend their records contained in 
the system. Therefore DHS is not required to establish rules or 
procedures pursuant to which individuals may seek a civil remedy for 
the agency's: Refusal to amend a record; Refusal to comply with a 
request for access to records; failure to maintain accurate, 
relevant, timely and complete records; or failure to otherwise 
comply with an individual's right to access or amend records.

    Dated: November 28, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.

 [FR Doc. E8-29047 Filed 12-8-08; 8:45 am]