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[Federal Register: March 16, 2010 (Volume 75, Number 50)]
[Rules and Regulations]               
[Page 12437-12438]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16mr10-1]                         


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Rules and Regulations
                                                Federal Register
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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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[[Page 12437]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0070]

 
Privacy Act of 1974: Implementation of Exemptions; U.S. 
Immigration and Customs Enforcement--006 Intelligence Records System

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 U.S. Immigration and 
Customs Enforcement system of records entitled the ``U.S. Immigration 
and Customs Enforcement--006 Intelligence Records System'' from certain 
provisions of the Privacy Act. Specifically, the Department exempts 
portions of the Immigration and Customs Enforcement Intelligence 
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 16, 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, e-
mail: 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, 73 FR 74633, December 9, 
2008, proposing to exempt portions of U.S. Immigration and Customs 
Enforcement--006 Intelligence Records system of records from one or 
more provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements. The Immigration and Customs 
Enforcement Intelligence Records system of records notice was published 
concurrently in the Federal Register, 73 FR 74735, December 9, 2008, 
and comments were invited on both the notice of proposed rulemaking and 
system of records notice. The notice of proposed rulemaking did not 
receive public comments. The system of records notice received one 
public comment.

Public Comments

    The notice of proposed rulemaking did not receive public comments. 
The system of records notice received one public comment. The public 
comment was an expression of an individual's personal opinions and 
unrelated to the 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.


0
2. At the end of Appendix C to Part 5, add the following new paragraph 
50 to read as follows:

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    50. The Immigration and Customs Enforcement (ICE)--006 
Intelligence Records System (IIRS) consists of electronic and paper 
records and will be used by the Department of Homeland Security 
(DHS). IIRS 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. IIRS contains information that 
is collected by other federal and foreign government agencies and 
may contain personally identifiable information. Pursuant to 
exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, portions of this 
system are exempt from 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(k)(2), this system is exempt from the 
following provisions of the Privacy Act, subject to the limitations 
set forth in those subsections: 5 U.S.C. 552a(c)(3), (d), (e)(1), 
(e)(4)(G), (e)(4)(H), and (f). 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

[[Page 12438]]

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.

Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-5618 Filed 3-15-10; 8:45 am]
BILLING CODE 9111-28-P
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