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###### Department of Homeland Security

###### Office of the Secretary

          - 6 CFR Part 5
          - [Docket No. DHS-2009-0037]

# 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. Citizenship and Immigration Services system of records entitled the “Department of Homeland Security U.S. Citizenship and Immigration Services—006 Fraud Detection and National Security Data System of Records” from certain provisions of the Privacy Act. Specifically, the Department exempts portions of the Department of Homeland Security U.S. Citizenship and Immigration Services—006 Fraud Detection and National Security Data 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: Donald Hawkins (202-272-8000), Privacy Officer, U.S. Citizenship and Immigration Services, 111 Massachusetts Avenue, NW., Washington, DC 20529. 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 48155, August 18, 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. Citizenship and Immigration Services (USCIS)—006 Fraud Detection and National Security Data System. The DHS/USCIS—006 Fraud Detection and National Security Data system of records notice was published concurrently in the                         **Federal Register**                        , 73 FR 48231, August 18, 2008, and comments were invited on both the notice of proposed rulemaking and the system of records notice. No comments were received.                    

## Public Comments

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

# List of Subjects in 6 CFR Part 5

      - Freedom of information; Privacy

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

1. The authority citation for Part 5 continues to read as follows: 

Authority:Public Law 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. At the end of Appendix C to Part 5, Exemption of Record Systems Under the Privacy Act, add the following new paragraph “32”: 

* * * * *

32. The DHS/USCIS—006 Fraud Detection and National Security Data System (FDNS-DS) system of records consists of a stand alone database and paper files that will be used by DHS and its components. The DHS/USCIS—006 Fraud Detection and National Security Data System is a case management system used to record, track, and manage immigration inquiries, investigative referrals, law enforcement requests, and case determinations involving benefit fraud, criminal activity, public safety and national security concerns. 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), (e)(4)(I), and (f) pursuant to 5 U.S.C. 552a (k)(2). These exemptions apply only to the extent that records in the system are subject to exemption 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) (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                                       ( print page 45085)                                    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 subsections (e)(4)(G) and (e)(4)(H) (Agency Requirements) because portions of this system are exempt from the individual access provisions of subsection (d) which exempts providing access because it could alert a subject to the nature or existence of an investigation, and thus there could be no procedures for that particular data. Procedures do exist for access for those portions of the system that are not exempted.

(e) From subsection (e)(4)(I) (Agency Requirements) because providing such source information would impede law enforcement or intelligence by compromising the nature or existence of a confidential investigation.

(f) From subsection (f) (Agency Rules) because portions of this system are exempt from the access and amendment provisions of subsection (d). 

Dated: August 20, 2009.

Mary Ellen Callahan,

Chief Privacy Officer, Department of Homeland Security.

[FR Doc. E9-20760 Filed 8-28-09; 8:45 am]

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