[Federal Register: August 22, 2007 (Volume 72, Number 162)]
[Proposed Rules]
[Page 46921-46922]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au07-32]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
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.
========================================================================
[[Page 46921]]
DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 5
Privacy Act of 1974: Implementation of Exemptions
AGENCY: Office of the Secretary, Department of Homeland Security.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security is giving concurrent
notice of a revised and updated system of records pursuant to the
Privacy Act of 1974 for the Arrival and Departure Information System
(ADIS). In this proposed rulemaking, the Department proposes to exempt
this 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 September 21, 2007.
ADDRESSES: You may submit comments, identified by docket number DHS-
2007-0050, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Fax: 1-866-466-5370.
Mail: Hugo Teufel III, 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, contact Claire
Miller, Acting US-VISIT Privacy Officer, 245 Murray Lane, SW.,
Washington, DC 20528. For privacy-related questions, contact Hugo
Teufel III, Chief Privacy Officer, Department of Homeland Security,
Washington, DC 20528; telephone (703) 235-0780.
SUPPLEMENTARY INFORMATION:
Background
The Department of Homeland Security (DHS) is republishing the
Privacy Act system of records notice for the Arrival and Departure
Information System (ADIS) in order to expand its authority and
capability to serve additional programs that require information on
individuals throughout the immigrant and non-immigrant pre-entry,
entry, status management, and exit processes. These changes include the
addition of a routine use to allow sharing of information with the
intelligence community in support of the DHS mission to protect the
United States from potential terrorist activities; the addition of a
routine use for cases of identity theft; clarification on the sources
of data in ADIS, potentially including foreign governments; and a
reduction of the retention period for ADIS data. The notice for this
system of records was last published in the Federal Register on
December 12, 2003 (68 FR 69412). In this notice of proposed rulemaking,
DHS now is proposing to exempt ADIS 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 an 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 exemption from certain requirements of the Privacy
Act for ADIS. Information in ADIS relates to official DHS national
security, law enforcement, immigration, and intelligence activities.
These exemptions are needed to protect information relating to DHS
investigatory and enforcement 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 of
immigration and border management 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 an
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.
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:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
1. The authority citation for part 5 continues to read as follows:
[[Page 46922]]
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.
2. At the end of Appendix C to Part 5, add the following new
paragraph ``5'' to read as follows:
Appendix C--DHS Systems of Records Exempt from the Privacy Act
* * * * *
5. The Department of Homeland Security Arrival and Departure
Information System (ADIS) consists of centralized computerized
records and will be used by DHS and its components. ADIS is the
primary repository of data held by DHS for near real-time immigrant
and non-immigrant status tracking through pre-entry, entry, status
management, and exit processes, based on data collected by DHS or
other Federal or foreign government agencies and used in connection
with DHS national security, law enforcement, immigration,
intelligence, and other DHS mission-related functions, and to
provide associated testing, training, management reporting, planning
and analysis, or other administrative uses. The information 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 exemptions 5 U.S.C. 552a(j)(2) of the Privacy Act,
this system is 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), (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 for release or disclosure 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 that
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 that
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
unreasonable administrative burden by requiring investigations to be
continually 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 the investigation, thereby interfering with
that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information could impede law enforcement by
compromising the existence of a confidential investigation or reveal
the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G) and (H) and (f) (Agency
Requirements) because portions of this system are exempt from the
individual access provisions of subsection (d) and thus would not
require DHS to apply rules for records or portions of records which
are exempted from access or amendment upon request. Access to, and
amendment of, system records that are not exempt or for which
exemption is waived may be obtained under procedures described in
the related system of records notice (SORN) or Subpart B of this
Part.
(g) From subsection (e)(5) (Collection of Information) because
with 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 subsection (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's 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) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
Dated: August 15, 2007.
John Kropf,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E7-16461 Filed 8-21-07; 8:45 am]
BILLING CODE 4410-10-P