[Federal Register Volume 73, Number 239 (Thursday, December 11, 2008)]
[Notices]
[Pages 75452-75455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29395]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

[Docket No. DHS-2008-0131]


Privacy Act of 1974; United States Immigration and Customs 
Enforcement-009 External Investigations System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of Privacy Act system of records.

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SUMMARY: In accordance with the Privacy Act of 1974, the Department of 
Homeland Security is giving notice that it proposes to consolidate two 
legacy record systems originally published by the legacy Customs 
Service: Treasury/CS.129 Investigations Record System, October 18, 
2001, and Treasury/CS.285 Automated Index to Central Investigative 
Files, October 18, 2001, into a Immigration and Customs Enforcement 
system of records notice titled External Investigations. In addition, 
DHS will now cover those Immigration and Customs Enforcement records 
previously covered by the Treasury/CS.244 Treasury Enforcement 
Communications System with this new system of records. Categories of 
individuals, categories of records, and the routine uses of these 
legacy system of records notices have been consolidated and updated to 
better reflect the law enforcement investigatory records maintained by 
Immigration and Customs Enforcement. Additionally, DHS is issuing a 
Notice of Proposed Rulemaking (NPRM) concurrent with this SORN 
elsewhere in the Federal Register. The exemptions for the legacy system 
of records notices will continue to be applicable until the final rule 
for this SORN has been completed This system will be included in the 
Department's inventory of record systems.

DATES: Written comments must be submitted on or before January 12, 
2009. This new system will be effective January 12, 2009.

ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0131 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, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.
     Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change and may be read at 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 issues please contact Lyn 
Rahilly, Privacy Officer, (202-731-3300), 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.

SUPPLEMENTARY INFORMATION: 

I. Background

    Immigration and Customs Enforcement (ICE) is the largest 
investigative branch of the Department of Homeland Security (DHS). The 
agency was created after 9/11, by combining the law enforcement arms of 
the former Immigration and Naturalization Service (INS) and the former 
Customs Service, to more effectively enforce our immigration and 
customs laws and to protect the United States against terrorist 
attacks. ICE does this by targeting the people, money and materials 
that support terrorism and other criminal activities. ICE investigates 
on its own and in conjunction with other agencies a broad range of 
illegal activities, such as terrorism, organized crime, gangs, child 
exploitation, and intellectual property violations.
    Pursuant to the savings clause in the Homeland Security Act of 
2002, Public Law 107-296, Section 1512, 116 Stat. 2310 (Nov. 25, 2002), 
DHS and ICE have relied on preexisting Privacy Act systems of records 
notices for the maintenance of records pertaining to law enforcement 
investigations performed by ICE. With the publication of the External 
Investigation Record System, DHS is consolidating and retiring two 
legacy U.S. Customs Service

[[Page 75453]]

system of records--Treasury/CS.129, Investigations Record System (66 FR 
52984, October 18, 2001), and Treasury/CS.285, Automated Index to 
Central Investigative Files (66 FR 52984, October 18, 2001)--which ICE 
previously relied upon in maintaining its law enforcement investigatory 
records and information. The External Investigations Records System 
will also cover ICE records that are presently maintained in Treasury 
Enforcement Communications System (TECS) (66 FR 53029, October 18, 
2001), a computerized information system. ICE uses an electronic case 
management component in TECS to store and manage law enforcement 
investigative records. These records contain investigative case files 
and other information associated with ongoing and closed ICE 
investigations into suspected violations of laws and regulations 
governing the movement of people and goods into and out of the U.S. and 
other laws within ICE's jurisdiction. ICE's data in TECS was previously 
covered by another legacy U.S. Customs Service records system titled 
Treasury/CS.244, Treasury Enforcement Communications System (66 FR 
53029, October 18, 2001). With the establishment of the ICE External 
Investigations records system, ICE will no longer rely on Treasury/
CS.244 to cover the ICE investigatory case file information maintained 
in TECS.
    Categories of individuals, categories of records, and the routine 
uses of these legacy system of records notices have been consolidated 
and updated to better reflect ICE's investigatory records. 
Additionally, DHS is issuing a Notice of Proposed Rulemaking (NPRM) 
concurrent with this SORN elsewhere in the Federal Register. The 
exemptions for the legacy system of records notices will continue to be 
applicable until the final rule for this SORN has been completed. This 
system will be included in the Department's inventory of record 
systems.

II. 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 for which information is 
retrieved by the name of an individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. In 
the Privacy Act, an individual is defined to encompass United States 
citizens and lawful permanent residents. As a matter of policy, DHS 
extends administrative Privacy Act protections to all individuals where 
systems of records maintain information on U.S. citizens, lawful 
permanent residents, and visitors. Individuals may request access to 
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 denoting 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 record keeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals to more easily find such files within the agency. Below is 
the description of the DHS/ICE External Investigations System of 
Records.
    In accordance with 5 U.S.C. 552a(r), DHS has provided a report of 
this system of records to the Office of Management and Budget (OMB) and 
to Congress.
System of Records: DHS/ICE-009

System name:
    External Investigations.

Security classification:
    Unclassified. Law Enforcement Sensitive (LES).

System location:
    Records are maintained at Immigration and Customs Enforcement 
Headquarters in Washington, DC and in field offices.

Categories of individuals covered by the system:
    Categories of individuals covered by this system include:
    (1) Individuals who are the subjects of current or previous law 
enforcement investigations into violations of U.S. customs and 
immigration laws, as well as other laws and regulations within ICE's 
jurisdiction, including investigations led by other domestic or foreign 
agencies where ICE is providing support and assistance;
    (2) Victims and witnesses in ICE law enforcement investigations 
described above;
    (3) Fugitives with outstanding Federal or State warrants; and
    (4) Operators of vehicles crossing the borders of the U.S. who are 
the subject of an ICE investigation, including but not limited to 
drivers of automobiles, private yacht masters, and private pilots 
arriving in the U.S.

Categories of records in the system:
    Categories of records in this system may include: Subject 
Information:
     Name and Aliases;
     Addresses;
     Social Security Number;
     Armed Forces Number;
     Alien Registration number;
     Date and place of birth;
     Citizenship;
     Passport and visa information;
     License information for owners and operators of vehicles, 
aircraft, and vessels;
     Information related to the subject's entry and exit of the 
United States; and
     Other biographical information.
    Victim and Witness Records:
     Name;
     Contact information, including address and telephone 
numbers;
     Sworn statements, reports of interview, and testimony; and
     Other relevant biographical and background information, 
such as employment, and education.
    Investigatory and Evidentiary Records:
     ICE case number;
     Incident reports;
     Reports and memoranda prepared by investigators during the 
course of the investigation or received from other agencies 
participating in or having information relevant to the investigation;
     Law enforcement intelligence reports;
     Electronic surveillance reports;
     Asset ownership information such as registration data and 
license data, for vehicles, vessels, merchandise, goods and other 
assets;
     Information about duties and penalties owed, assessed, and 
paid;
     Information about goods and merchandise, such as import 
and export forms and declarations filed, lab or analytical reports, 
valuation and classification of goods, and other relevant data;
     Correspondence and court filings;
     Information received from other governmental agencies, 
confidential sources, and other sources pertaining to the 
investigation;
     Any other evidence in any form, including papers, 
photographs, electronic recordings, electronic data, or video records 
that was obtained, seized, or otherwise lawfully acquired from any 
source during the course of the investigation.

Authority for maintenance of the system:
    5 U.S.C. 301; 19 U.S.C. 66; 19 U.S.C. 1431; 19 U.S.C. 1603; 19 
U.S.C. 2072; 40

[[Page 75454]]

U.S.C. 1315; Title 18, United States Code; Title 19, United States 
Code; 31 CFR part 103; Title 40 United States Code.

Purpose(s):
    The purpose of this system is to document external investigations 
performed by ICE pertaining to suspected violations of laws regulating 
the movement of people and goods into and out of the United States in 
addition to other violations of other laws within ICE's jurisdiction; 
to facilitate communication between ICE and foreign and domestic law 
enforcement agencies for the purpose of enforcement and administration 
of laws, including immigration and customs laws; and to provide 
appropriate notification to victims in accordance with Federal victim 
protection laws.

Routine uses of records maintained in the system, including categories 
of users and the purposes of such uses:
    In addition to those disclosures generally permitted under 5 U.S.C. 
552a(b) of the Privacy Act, all or a portion of the records of 
information contained in this system may be disclosed outside DHS as a 
routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
    A. To the Department of Justice or other Federal agency conducting 
litigation or in proceedings before any court, adjudicative or 
administrative body, when:
    1. DHS or any component thereof;
    2. any employee of DHS in his/her official capacity;
    3. any employee of DHS in his/her individual capacity where DOJ or 
DHS has agreed to represent the employee; or
    4. the United States or any agency thereof, is a party to the 
litigation or has an interest in such litigation, and DHS determines 
that the records are both relevant and necessary to the litigation and 
the use of such records is compatible with the purpose for which DHS 
collected the records.
    B. To a congressional office from the record of an individual in 
response to an inquiry from that congressional office made at the 
request of the individual to whom the record pertains.
    C. To the National Archives and Records Administration or other 
Federal government agencies pursuant to records management inspections 
being conducted under the authority of 44 U.S.C. 2904 and 2906.
    D. To an agency, organization, or individual for the purpose of 
performing audit or oversight operations as authorized by law, but only 
such information as is necessary and relevant to such audit or 
oversight function.
    E. To appropriate agencies, entities, and persons when:
    1. DHS suspects or has confirmed that the security or 
confidentiality of information in the system of records has been 
compromised;
    2. The Department has determined that as a result of the suspected 
or confirmed compromise there is a risk of harm to economic or property 
interests, identity theft or fraud, or harm to the security or 
integrity of this system or other systems or programs (whether 
maintained by DHS or another agency or entity) that rely upon the 
compromised information; and
    3. The disclosure made to such agencies, entities, and persons is 
reasonably necessary to assist in connection with DHS's efforts to 
respond to the suspected or confirmed compromise and prevent, minimize, 
or remedy such harm.
    F. To contractors and their agents, grantees, experts, consultants, 
and others performing or working on a contract, service, grant, 
cooperative agreement, or other assignment for DHS, when necessary to 
accomplish an agency function related to this system of records. 
Individuals provided information under this routine use are subject to 
the same Privacy Act requirements and limitations on disclosure as are 
applicable to DHS officers and employees.
    G. To an appropriate Federal, State, tribal, local, international, 
or foreign law enforcement agency or other appropriate authority 
charged with investigating or prosecuting a violation or enforcing or 
implementing a law, rule, regulation, or order, where a record, either 
on its face or in conjunction with other information, indicates a 
violation or potential violation of law, which includes criminal, 
civil, or regulatory violations and such disclosure is proper and 
consistent with the official duties of the person making the 
disclosure.
    H. To an appropriate Federal, State, local, tribal, foreign, or 
international agency, if the information is relevant and necessary to a 
requesting agency's decision concerning the hiring or retention of an 
individual, or issuance of a security clearance, license, contract, 
grant, or other benefit, or if the information is relevant and 
necessary to a DHS decision concerning the hiring or retention of an 
employee, the issuance of a security clearance, the reporting of an 
investigation of an employee, the letting of a contract, or the 
issuance of a license, grant or other benefit and disclosure is 
appropriate to the proper performance of the official duties of the 
person making the request.
    I. To a court, magistrate, or administrative tribunal in the course 
of presenting evidence, including disclosures to opposing counsel or 
witnesses in the course of civil discovery, litigation, or settlement 
negotiations or in connection with criminal law proceedings or in 
response to a subpoena.
    J. To third parties during the course of a law enforcement 
investigation to the extent necessary to obtain information pertinent 
to the investigation, provided disclosure is appropriate to the proper 
performance of the official duties of the officer making the 
disclosure.
    K. To Federal and foreign government intelligence or 
counterterrorism agencies or components where DHS becomes aware of an 
indication of a threat or potential threat to national or international 
security, or where such use is to assist in anti-terrorism efforts and 
disclosure is appropriate to the proper performance of the official 
duties of the person making the disclosure.
    L. Disclosure to victims regarding custodial information, such as 
release on bond, order of supervision, removal from the U.S., or death 
in custody, about an individual who is the subject of a criminal or 
immigration investigation, proceeding, or prosecution;
    M. To any person or entity to the extent necessary to prevent 
immediate loss of life or serious bodily injury, e.g., disclosure of 
custodial release information to witnesses who have received threats 
from individuals in custody;
    N. To international and foreign governmental authorities in 
accordance with law and formal or informal international arrangements.
    O. To a public or professional licensing organization when such 
information indicates, either by itself or in combination with other 
information, a violation or potential violation of professional 
standards, or reflects on the moral, educational, or professional 
qualifications of an individual who is licensed or who is seeking to 
become licensed.
    P. To the news media and the public, with the approval of the Chief 
Privacy Officer in consultation with counsel, when there exists a 
legitimate public interest in the disclosure of the information or when 
disclosure is necessary to preserve confidence in the integrity of DHS 
or is necessary to demonstrate the accountability of DHS's officers, 
employees, or individuals covered by the system, except to the extent 
it is determined that release of the specific information in the 
context of a particular case would constitute an

[[Page 75455]]

unwarranted invasion of personal privacy.

Disclosure to consumer reporting agencies:
    None.

Policies and practices for storing, retrieving, accessing, retaining, 
and disposing of records in the system:
Storage:
    Records in this system are stored electronically or on paper in 
secure facilities in a locked drawer behind a locked door. The records 
are stored on magnetic disc, tape, digital media, and CD-ROM.

Retrievability:
    Records are retrieved by individual's name, date of birth, ICE 
investigative file number, Social Security Number, driver's license 
number, pilot's license number, vehicle license plate number, address, 
home telephone number, passport number, citizenship, country of birth, 
armed forces number, and date of entry into the United States.

Safeguards:
    Records in this system are safeguarded in accordance with 
applicable rules and policies, including all applicable DHS automated 
system security access policies. Strict controls have been imposed to 
minimize the risk of compromising the information that is being stored. 
Access to the computer system containing the records in this system is 
limited to those individuals who have a need to know the information 
for the performance of their official duties and who have appropriate 
clearances or permissions. The system maintains a real-time auditing 
function of individuals who access the system. Additional safeguards 
may vary by component and program.

Retention and disposal:
    Investigative files concerning munitions control cases are 
permanent records that are transferred to the Federal Records Center 
after one year, and then transferred to the National Archives and 
Records Administration (NARA) fifteen years after case closure. Records 
for other closed investigative cases are maintained in the 
investigating ICE field or headquarters office for either one year or 
five years after the end of the fiscal year in which the related 
investigative file is closed, depending on the category of the case. 
Those records are then transferred to the Federal Records Center where 
they are held for periods of time ranging from five to twenty five 
years, depending on the category of the case, after which they are 
destroyed. Destruction is by burning or shredding. DHS is proposing to 
retain electronic records associated with law enforcement 
investigations for 75 years after case closure, after which they would 
be destroyed. An updated schedule for investigative records is under 
review and will be submitted to NARA for approval.

System Manager and address:
    Immigration and Customs Enforcement, Mission Support Division, Unit 
Chief, Executive Information Unit/Program Management Oversight (EIU/
PMO), Potomac Center North, 500 12th St., SW., Washington, DC 20024.

Notification procedure:
    Individuals seeking notification of and access to any record 
contained in this system of records, or seeking to contest its content, 
may submit a request in writing to the component's FOIA Officer, whose 
contact information can be found at http://www.dhs.gov/foia under 
``contacts.'' If an individual believes more than one component 
maintains Privacy Act records concerning him or her the individual may 
submit the request to the Chief Privacy Officer, Department of Homeland 
Security, 245 Murray Drive, SW., Building 410, STOP-0550, Washington, 
DC 20528.
    When seeking records about yourself from this system of records or 
any other Departmental system of records your request must conform with 
the Privacy Act regulations set forth in 6 CFR Part 5. You must first 
verify your identity, meaning that you must provide your full name, 
current address and date and place of birth. You must sign your 
request, and your signature must either be notarized or submitted under 
28 U.S.C. 1746, a law that permits statements to be made under penalty 
or perjury as a substitute for notarization. While no specific form is 
required, you may obtain forms for this purpose form the Director, 
Disclosure and FOIA, http://www.dhs.gov or 1-866-431-0486. In addition 
you should provide the following:
     An explanation of why you believe the Department would 
have information on you,
     Identify which component(s) of the Department you believe 
may have the information about you,
     Specify when you believe the records would have been 
created,
     Provide any other information that will help the FOIA 
staff determine which DHS component agency may have responsive records,
     If your request is seeking records pertaining to another 
living individual, you must include a statement from that individual 
certifying his/her agreement for you to access his/her records.
    Without this bulleted information the component(s) will not be able 
to conduct an effective search, and your request may be denied due to 
lack of specificity or lack of specificity or lack of compliance with 
applicable regulations.

Record access procedures:
    See ``Notification procedure'' above.

Contesting record procedures:
    See ``Notification procedure'' above.

Record source categories:
    ICE may receive information in the course of its law enforcement 
investigations from nearly any source. Sources of information include: 
domestic and foreign governmental and quasi-governmental agencies and 
data systems, public records, commercial data aggregators, import and 
export records systems, immigration and alien admission records 
systems, members of the public, subjects of investigation, victims, 
witnesses, confidential sources, and those with knowledge of the 
alleged activity.

Exemptions claimed for the system:
    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), and (e)(4)(H), (e)(5) and 
(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). In addition, to the extent a 
record contains information from other exempt systems of records, ICE 
will rely on the exemptions claimed for those systems.

    Dated: December 2, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-29395 Filed 12-10-08; 8:45 am]
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