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.

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REGISTER issue of each week.

Rules and Regulations Federal Register

48117 

Vol. 73, No. 160 

Monday, August 18, 2008 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2008–0071] 

Privacy Act of 1974: Implementation of 

Exemptions; Immigration and Customs 

Enforcement (ICE) Pattern Analysis 

and Information Collection (ICEPIC) 

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 

new system of records entitled the 

‘‘Immigration and Customs Enforcement 

(ICE) Pattern Analysis and Information 

Collection (ICEPIC) System’’ from 

certain provisions of the Privacy Act. 

Specifically, the Department exempts 

portions of the ICEPIC 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 18, 2008. 

FOR FURTHER INFORMATION CONTACT: Lyn 

Rahilly, Privacy Officer, U.S. 

Immigration and Customs Enforcement, 

425 I Street, NW., Washington, DC 

20536, e-mail: ICEPrivacy@dhs.gov, or 

Hugo Teufel III (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 5460 (Jan. 30, 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 ICE Pattern Analysis 

and Information Collection (ICEPIC). 

The ICEPIC system of records notice 

(SORN) was published concurrently in 

the Federal Register, 73 FR 5577 (Jan. 

30, 2008), and comments were invited 

on both the proposed rule and SORN. 

Six comments were received. All 

commenters were generally in favor of 

implementation of the rule as proposed. 

Accordingly, the Department is 

adopting the proposed rule as final. 

Concurrently in this issue of the Federal 

Register, ICE is re-publishing the SORN 

for ICEPIC to address comments 

received through the Federal Register 

comment procedure. Given no changes 

were made to the rule or the SORN, 

Privacy Impact Assessment for ICEPIC 

dated January 30, 2008, remains 

accurate and is posted on the 

Department’s privacy Web site. (See 

http://www.dhs.gov/privacy and follow 

the link to ‘‘Privacy Impact 

Assessments’’). 

Pursuant to the requirements of the 

Regulatory Flexibility Act, 5 U.S.C. 601– 

612, DHS certifies that these regulations 

will not significantly affect a substantial 

number of small entities. The final rule 

imposes no duties or obligations on 

small entities. Further, in accordance 

with the provisions of the Paperwork 

Reduction Act of 1995, 44 U.S.C. 3501, 

DHS has determined that this final rule 

would not impose new record keeping, 

application, reporting, or other types of 

information collection requirements. 

Public Comments 

ICE received and considered the 

public comments, which are discussed 

further below, and concluded that no 

substantive changes to the rule are 

warranted at this time. While all 

comments were in favor of the proposed 

rule, two commenters also raised 

specific concerns related to this system 

of records, which are addressed below. 

One commenter expressed concern 

that individuals would be unable to 

ensure their personal information in 

ICEPIC is accurate unless they are 

permitted access to their records. Other 

means exist to verify the accuracy of 

ICEPIC data and ensure that incorrect 

data is not used to prejudice that 

individual. ICEPIC users are trained to 

verify information obtained from ICEPIC 

before including it in analytical reports 

that will be used during investigations 

or shared with government personnel 

outside of ICE. Verification procedures 

include direct queries to the source 

databases from which ICEPIC originally 

obtained the information, queries of 

commercial or other government 

databases, and ICE agent interviews 

with individuals or others who are in a 

position to confirm the ICEPIC data. 

These procedures mitigate the risk 

posed by inaccurate data in the system 

and raise the probability that such data 

will be identified and corrected before 

any action is taken that would prejudice 

an individual. In addition, the source 

systems from which ICEPIC obtains 

information may, themselves, have 

mechanisms in place to ensure the 

accuracy of the data prior to the 

information being accessed through 

ICEPIC. 

Another commenter, while in favor of 

the system, expressed these concerns as 

follows: 

‘‘By limiting access to a small number 

of people, power and responsibility may 

be monopolized in the hands of some 

who are never given a system of checks 

and balances over their power. The only 

other concern that I have is that, as 

domestic and international security 

policies and concerns shift over time, 

this proposed rule change will be 

stagnant. I would propose then that this 

rule be revisited in the coming years as 

security threats continue to fluctuate.’’ 

To ensure the system contains 

appropriate checks and balances to 

oversee those who have access to 

ICEPIC information, ICE has established 

appropriate controls and safeguards that 

provide oversight of authorized ICEPIC 

users. All user activity is audited and 

subject to periodic review to identify 

unauthorized use or activity. ICE 

investigates instances of unauthorized 

or inappropriate access or use of the 

system and takes appropriate 

disciplinary actions where violations 

have occurred. The commenter also 

recommended a review of this system in 

the future because ‘‘security threats 

continue to fluctuate.’’ ICE and DHS 

continue to exercise diligence in the 

response to the evolving threat 

environment. Should there be a need to 

substantially alter this system in the 

future, similar public notice and an 


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48118 Federal Register / Vol. 73, No. 160 / Monday, August 18, 2008 / Rules and Regulations 

opportunity to comment will be 

provided. 

Regulatory Requirements 

A. Regulatory Impact Analyses 

Changes to Federal regulations must 

undergo several analyses. In conducting 

these analyses, DHS has determined: 

1. Executive Order 12866 Assessment 

This rule is not a significant 

regulatory action under Executive Order 

12866, ‘‘Regulatory Planning and 

Review’’ (as amended). Accordingly, 

this rule has not been reviewed by the 

Office of Management and Budget 

(OMB). Nevertheless, DHS has reviewed 

this rulemaking, and concluded that 

there will not be any significant 

economic impact. 

2. Regulatory Flexibility Act Assessment 

Pursuant to section 605 of the 

Regulatory Flexibility Act (RFA), 5 

U.S.C. 605(b), as amended by the Small 

Business Regulatory Enforcement and 

Fairness Act of 1996 (SBREFA), DHS 

certifies that this rule will not have a 

significant impact on a substantial 

number of small entities. The rule 

would impose no duties or obligations 

on small entities. Further, the 

exemptions to the Privacy Act apply to 

individuals, and individuals are not 

covered entities under the RFA. 

3. International Trade Impact 

Assessment 

This rulemaking will not constitute a 

barrier to international trade. The 

exemptions relate to criminal 

investigations and agency 

documentation and, therefore, do not 

create any new costs or barriers to trade. 

4. Unfunded Mandates Assessment 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), (Pub. L. 

104–4, 109 Stat. 48), requires Federal 

agencies to assess the effects of certain 

regulatory actions on State, local, and 

tribal governments, and the private 

sector. This rulemaking will not impose 

an unfunded mandate on State, local, or 

tribal governments, or on the private 

sector. 

B. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(PRA) (44 U.S.C. 3501 et seq.) requires 

that DHS consider the impact of 

paperwork and other information 

collection burdens imposed on the 

public and, under the provisions of PRA 

section 3507(d), obtain approval from 

the Office of Management and Budget 

(OMB) for each collection of 

information it conducts, sponsors, or 

requires through regulations. DHS has 

determined that there are no current or 

new information collection 

requirements associated with this rule. 

C. Executive Order 13132, Federalism 

This action will not have a substantial 

direct effect on the States, on the 

relationship between the national 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, and therefore will 

not have federalism implications. 

D. Environmental Analysis 

DHS has reviewed this action for 

purposes of the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321–4347) and has determined that 

this action will not have a significant 

effect on the human environment. 

E. Energy Impact 

The energy impact of this action has 

been assessed in accordance with the 

Energy Policy and Conservation Act 

(EPCA) Public Law 94–163, as amended 

(42 U.S.C. 6362). This rulemaking is not 

a major regulatory action under the 

provisions of the EPCA. 

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: 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. 

■ 2. At the end of appendix C to part 5, 

add the following new paragraph 6 to 

read as follows: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

6. The Immigration and Customs 

Enforcement (ICE) Pattern Analysis and 

Information Collection (ICEPIC) System 

consists of electronic and paper records and 

will be used by DHS and its components. 

ICEPIC 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 (including the immigration 

law); investigations, inquiries, and 

proceedings there under; and national 

security and intelligence activities. ICEPIC 

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. 

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 

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. 


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Federal Register / Vol. 73, No. 160 / Monday, August 18, 2008 / Rules and Regulations 48119 

(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. 

Hugo Teufel III, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E8–19033 Filed 8–15–08; 8:45 am] 

BILLING CODE 4410–10–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Parts 1 and 33 

[Docket No.: FAA–2007–27899; Amendment 

No. 33–25] 

RIN 2120–AI96 

Airworthiness Standards: Rotorcraft 

Turbine Engines One-EngineInoperative (OEI) Ratings, Type 

Certification Standards 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: The Federal Aviation 

Administration (FAA) is amending the 

One-Engine-Inoperative (OEI) rating 

definitions and type certification 

standards for 30-second OEI, 2-minute 

OEI, and 30-minute OEI ratings for 

rotorcraft turbine engines. This action 

revises the ratings’ standards to reflect 

recent analyses of the ratings’ use and 

lessons learned from completed engine 

certifications and service experience. 

This rule harmonizes FAA type 

certification standards for these ratings 

with the requirements of the European 

Aviation Safety Agency in the 

Certification Specifications for Engines 

and with proposed requirements for 

Transport Canada Civil Aviation, thus 

simplifying airworthiness approvals for 

import and export. 

DATES: This amendment becomes 

effective October 17, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Dorina Mihail, Engine and Propeller 

Standards Staff, ANE–110, Engine and 

Propeller Directorate, Aircraft 

Certification Service, FAA, New 

England Region, 12 New England 

Executive Park, Burlington, 

Massachusetts 01803–5229; (781) 238–

7153; facsimile: (781) 238–7199; e-mail: 

dorina.mihail@faa.gov. 

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the United States Code. 

Subtitle I, Section 106 describes the 

authority of the FAA Administrator. 

Subtitle VII, Aviation Programs, 

describes in more detail the scope of the 

agency’s authority. 

This rulemaking is promulgated 

under the authority described in 

Subtitle VII, Part A, Subpart III, Section 

44701, ‘‘General requirements.’’ Under 

that section, Congress charges the FAA 

with promoting safe flight of civil 

aircraft in air commerce by prescribing 

regulations for practices, methods, and 

procedures the Administrator finds 

necessary for safety in air commerce, 

including minimum safety standards for 

aircraft engines. This rule is within the 

scope of that authority because it 

updates the existing regulations for type 

certification standards for OEI ratings 

for rotorcraft turbine engines. 

Background 

On May 4, 2007, the FAA published 

a notice of proposed rulemaking 

(NPRM) titled ‘‘Airworthiness 

Standards: Rotorcraft Turbine Engines 

One-Engine-Inoperative (OEI) Ratings, 

Type Certification Standards’’ (72 FR 

25207). The comment period for the 

NPRM closed on August 2, 2007. 

The OEI power ratings provide 

rotorcraft with higher than takeoff and 

maximum continuous power ratings 

needed when one engine of a multiengine rotorcraft fails or is shut down 

during flight, such as during takeoff, 

cruise, or landing. These OEI power 

rating powers enable the rotorcraft to 

continue safe flight until it reaches a 

suitable landing site. Part 33 prescribes 

airworthiness standards for 30-second 

OEI, 2-minute OEI, 21⁄2-minute OEI, 30- 

minute OEI, and continuous OEI ratings 

for the issuance of type certificates for 

rotorcraft turbine engines. All OEI 

ratings are optional ratings that engine 

manufacturers may select from those 

specified in § 33.7. 

This final rule harmonizes with the 

corresponding airworthiness standards 

for OEI ratings of the European Aviation 

Safety Agency (EASA) without reducing 

the existing level of safety. 

Summary of Comments 

Three commenters, including a 

turbine engine manufacturer, General 

Electric (GE); a foreign aviation 

authority, Transport Canada Civil 

Aviation (TCCA); and an industry 

association, Aerospace Industries 

Association (AIA); responded to the 

NPRM request for comments. The GE 

and AIA comments are identical. TCCA 

had a number of comments. All of the 

commenters generally supported the 

proposed changes. All comments 

included suggested changes, as 

discussed in the discussion of the final 

rule below. 


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