[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Pages 45083-45084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20750]
[[Page 45083]]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0053]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security U.S. Immigration and Customs Enforcement--010
Confidential and Other Sources of Information 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--010 Confidential and Other Sources of Information
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--010
Confidential and Other Sources of Information 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 74635, 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)--010 Confidential
and Other Sources of Information system. The DHS/ICE--010 Confidential
and Other Sources of Information system of records notice was published
concurrently in the Federal Register, 73 FR 74729, 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
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1. The authority citation for Part 5 continues to read as follows:
Authority: 6 U.S.C. 101 et seq.; Public Law 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
``31'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
31. The DHS/ICE--010 Confidential and Other Sources of
Information (COSI) system of records consists of electronic and
paper records and will be used by DHS and its components. The DHS/
ICE--010 Confidential and Other Sources of Information 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; and investigations,
inquiries, and proceedings there under; and national security and
intelligence activities. The DHS/ICE--010 Confidential and Other
Sources of Information 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 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
[[Page 45084]]
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. E9-20750 Filed 8-28-09; 8:45 am]
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