This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

30240 

Vol. 74, No. 121 

Thursday, June 25, 2009 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2008–0174] 

Privacy Act of 1974: Implementation of 

Exemptions; United States Immigration 

and Customs Enforcement—011 

Removable Alien Records System of 

Records 

AGENCY: Privacy Office, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security (DHS) is giving concurrent 

notice of a revised and updated system 

of records pursuant to the Privacy Act 

of 1974 for the Immigration and 

Customs Enforcement (ICE)—011 

Removable Alien Records system of 

records and this proposed rulemaking. 

In this proposed rulemaking, the 

Department proposes 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 exemptions for the 

legacy system of records notices will 

continue to be applicable until the final 

rule for this SORN has been completed. 

DATES: Comments must be received on 

or before July 27, 2009. 

ADDRESSES: You may submit comments, 

identified by docket number DHS– 

2008–0174, by one of the following 

methods: 

• Federal e-Rulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 703–483–2999. 

• Mail: Mary Ellen Callahan, Chief 

Privacy Officer, Department of 

Homeland Security, Washington, DC 

20528. 

Instructions: All submissions received 

must include the agency name and 

docket number for this notice. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: For 

general questions please contact: Lyn 

Rahilly, Privacy Officer, (202–732– 

3300), Immigration and Customs 

Enforcement, 500 12th Street, SW., 

Washington, DC 20024, e-mail: 

ICEPrivacy@dhs.gov. For privacy issues, 

please contact: Mary Ellen Callahan 

(703–235–0780), Chief Privacy Officer, 

Privacy Office, Department of Homeland 

Security, Washington, DC 20528. 

SUPPLEMENTARY INFORMATION: 

Background: Pursuant to the savings 

clause in the Homeland Security Act of 

2002, Public Law 107–296, Section 

1512, 116 Stat. 2310 (November 25, 

2002), Department of Homeland 

Security/Immigration Customs 

Enforcement has relied on preexisting 

Privacy Act systems of records notices 

for the collection and maintenance of 

records pertaining to removable alien 

records. 

In this notice of proposed rulemaking, 

DHS is now proposing to exempt DHS/ 

ICE—011 Removable Alien Records 

System, in part, from certain provisions 

of the Privacy Act. 

The Privacy Act embodies fair 

information principles in a statutory 

framework governing the means by 

which the United States Government 

collects, maintains, uses, and 

disseminates personally identifiable 

information. The Privacy Act applies to 

information that is maintained in a 

‘‘system of records.’’ A ‘‘system of 

records’’ is a group of any records under 

the control of an agency from which 

information is retrieved by the name of 

the individual or by some identifying 

number, symbol, or other identifying 

particular assigned to the individual. 

Individuals may request their own 

records that are maintained in a system 

of records in the possession or under the 

control of DHS by complying with DHS 

Privacy Act regulations, 6 CFR part 5. 

The Privacy Act requires each agency 

to publish in the Federal Register a 

description of the type and character of 

each system of records that the agency 

maintains, and the routine uses that are 

contained in each system in order to 

make agency recordkeeping practices 

transparent, to notify individuals 

regarding the uses to which personally 

identifiable information is put, and to 

assist individuals in finding such files 

within the agency. 

The Privacy Act allows Government 

agencies to exempt certain records from 

the access and amendment provisions. If 

an agency claims an exemption, 

however, it must issue a Notice of 

Proposed Rulemaking to make clear to 

the public the reasons why a particular 

exemption is claimed. 

DHS is claiming exemptions from 

certain requirements of the Privacy Act 

for DHS/ICE—011 Removable Alien 

Records System. Some information in 

DHS/ICE—011 Removable Alien 

Records System relates to official DHS 

national security, law enforcement, 

immigration, and intelligence activities. 

These exemptions are needed to protect 

information relating to DHS activities 

from disclosure to subjects or others 

related to these activities. Specifically, 

the exemptions are required to preclude 

subjects of these activities from 

frustrating these processes; to avoid 

disclosure of activity techniques; to 

protect the identities and physical safety 

of confidential informants and law 

enforcement personnel; to ensure DHS’s 

ability to obtain information from third 

parties and other sources; to protect the 

privacy of third parties; and to safeguard 

classified information. Disclosure of 

information to the subject of the inquiry 

could also permit the subject to avoid 

detection or apprehension. 

The exemptions proposed here are 

standard law enforcement and national 

security exemptions exercised by a large 

number of Federal law enforcement and 

intelligence agencies. In appropriate 

circumstances, where compliance 

would not appear to interfere with or 

adversely affect the law enforcement 

purposes of this system and the overall 

law enforcement process, the applicable 

exemptions may be waived on a case by 

case basis. 

A notice of system of records for 

Removable Aliens is also published in 

this issue of the Federal Register. 

List of Subjects in 6 CFR Part 5 

Freedom of information; Privacy. 

For the reasons stated in the 

preamble, DHS proposes to amend 

Chapter I of Title 6, Code of Federal 

Regulations, as follows: 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 74, No. 121 / Thursday, June 25, 2009 / Proposed Rules 30241 

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. Add at the end of Appendix C to 

Part 5, Exemption of Record Systems 

under the Privacy Act, the following 

new paragraph ‘‘14’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

14. The DHS/ICE–011 Removable Alien 

Records System records consists of electronic 

and paper records and will be used by DHS 

and its components. DHS/ICE–011 

Removable Alien Records 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; investigations, inquiries, and 

proceedings there under; and national 

security and intelligence activities. DHS/ 

ICE—011 Removable Alien Records 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. 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) of the Privacy 

Act, 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 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 

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: June 18, 2009. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E9–14901 Filed 6–24–09; 8:45 am] 

BILLING CODE 9111–28–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2009–0021] 

Privacy Act of 1974: Implementation of 

Exemptions; United States Coast 

Guard—013 Marine Information for 

Safety and Law Enforcement (MISLE) 

AGENCY: Privacy Office, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security (DHS) is giving concurrent 

notice of a revised and updated system 

of records pursuant to the Privacy Act 

of 1974 for the United States Coast 

Guard Marine Information for Safety 

and Law Enforcement system of records 

and this proposed rulemaking. In this 

proposed rulemaking, the Department 

proposes 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. 

DATES: Comments must be received on 

or before July 27, 2009. 


sroberts on PROD1PC70 with PROPOSALS