Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations 45083 

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. 

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: 

ICEPrivacy@dhs.gov. 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. 

■ 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: 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. 

■ 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 caseby-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 


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45084 Federal Register / Vol. 74, No. 167 / Monday, August 31, 2009 / Rules and Regulations 

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] 

BILLING CODE 9111–28–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2009–0037] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security U.S. Citizenship and 

Immigration Services—006 Fraud 

Detection and National Security Data 

System 

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 


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