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Federal Register, Volume 75 Issue 45 (Tuesday, March 9, 2010)

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[Federal Register Volume 75, Number 45 (Tuesday, March 9, 2010)]
[Rules and Regulations]
[Pages 10633-10634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4900]

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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 75, No. 45 / Tuesday, March 9, 2010 / Rules
and Regulations
[[Page 10633]]

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0415]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security United States Immigration and Customs Enforcement-011 Immigration and Enforcement Operational Records System of Records
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
----------------------------------------------------------------------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
titled, ``Department of Homeland Security/U.S. Immigration and Customs
Enforcement--011 Removable Alien Records System of Records'' renamed
``Department of Homeland Security/U.S. Immigration and Customs
Enforcement--011 Immigration and Enforcement Operational Records System
of Records'' from certain provisions of the Privacy Act. Specifically,

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the Department exempts portions of the Department of Homeland Security/
U.S. Immigration and Customs Enforcement--011 Immigration and
Enforcement Operational Records 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 March 9, 2010.
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 20536; email: ICEPrivacy@dhs.gov. For privacy issues please 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, 74 FR 30240, June 25,
2009, 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 DHS/U.S. Immigration and
Customs Enforcement (ICE)--011 Removable Alien Records system of
records notice was published concurrently in the Federal Register, 74
FR 5665, January 30, 2009, and later updated in the Federal Register to
add two new routine uses, 74 FR 20719, May 5, 2009. The system is being
renamed DHS/ICE--011 Immigration and Enforcement Operational Records
system of records. Comments were invited on both the notice of proposed
rulemaking and system of records notice. Three comments were received
on the notice of proposed rulemaking and system of records notice.
Public Comments
The comment received on the notice of proposed rulemaking did not
pertain to the notice of proposed rulemaking or system of records
notice, but instead expressed the commenter's general views on
immigration. DHS/ICE received two positive comments on the system of
records notice expressing support for the two new routine uses added in
the updated system of records notice. DHS will implement the rulemaking
as proposed.
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.
Subpart B also issued under 5 U.S.C. 552a.

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0
2. Add at the end of Appendix C to Part 5, the following new paragraph
``48'' to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
48. The DHS/ICE-011 Immigration and Enforcement Operational
Records system of records consists of electronic and paper records
and will be used by DHS and its components. The DHS/ICE-011
Immigration and Enforcement Operational Records system of 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 there under; and national
security and intelligence activities. The DHS/ICE-011 Immigration
and Enforcement Operational Records system of 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. 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
[[Page 10634]]
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

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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

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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: February 5, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-4900 Filed 3-8-10; 8:45 am]
BILLING CODE 9111-28-P

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