[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Pages 45080-45081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20761]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5, Appendix C

[Docket No. DHS-2009-0073]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Immigration and Customs Enforcement--008 Search, 
Arrest, and Seizure System of Records

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 Department of Homeland 
Security U.S. Immigration and Customs Enforcement system of records 
entitled the ``Department of Homeland Security U.S. Immigration and 
Customs Enforcement--008 Search, Arrest, and Seizure System of 
Records'' from certain provisions of the Privacy Act. Specifically, the 
Department exempts portions of the Department of Homeland Security U.S. 
Immigration and Customs Enforcement--008 Search, Arrest, and Seizure 
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 August 31, 2009.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Lyn Rahilly (202-732-3300), Privacy Officer, U.S. Immigration and 
Customs Enforcement, 500 12th Street, SW., Washington, DC 20024, e-
mail: [email protected]. For privacy issues contact: Mary Ellen 
Callahan (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, 73 FR 74632, December 9, 
2008, 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 
DHS/U.S. Immigration and Customs Enforcement (ICE)--008 Search, Arrest, 
and Seizure system. The DHS/ICE--008 Search, Arrest, and Seizure system 
of records notice was published concurrently in the Federal Register, 
73 FR 74732, December 9, 2008, and comments were invited on both the 
notice of proposed rulemaking and system of records notice. No comments 
were received.

Public Comments

    DHS received no comments on the notice of proposed rulemaking or 
the system of records notice. DHS will implement the rulemaking as 
proposed.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

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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:  6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 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.


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2. Add at the end of Appendix C to Part 5, the following new paragraph 
``29'':

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

* * * * *
    29. The DHS/ICE--008 Search, Arrest, and Seizure system of 
records consists of electronic and paper records and will be used by 
DHS and its components. The DHS/ICE--008 Search, Arrest, and Seizure 
system 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. The DHS/ICE--008 Search, 
Arrest, and Seizure system 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. The Secretary of Homeland 
Security has exempted this system from the following provisions of 
the Privacy Act, subject to the limitations set forth in 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(j)(2). Additionally, the Secretary of Homeland Security has 
exempted this system from the following provisions of the Privacy 
Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3), 
(d), (e)(1), (e)(4)(G), (e)(4)(H), and (f) pursuant to 5 U.S.C. 
552a(k)(2). 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

[[Page 45081]]

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 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 
investigations.
    (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 
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 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: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-20761 Filed 8-28-09; 8:45 am]
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