Privacy Act of 1974: Implementation of Exemptions; Immigration and Customs Enforcement (ICE) General Counsel Electronic Management System (GEMS), 63058-63060 [E8-24996]
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63058
Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Rules and Regulations
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 10
to read as follows:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
dwashington3 on PRODPC61 with RULES
*
*
*
*
*
10. DHS–ICE–001, The Immigration and
Customs Enforcement (ICE) Student and
Exchange Visitor Information System (SEVIS)
collects and maintains pertinent information
on nonimmigrant students and exchange
visitors and the schools and exchange visitor
program sponsors that host them while in the
United States. The system permits DHS to
monitor compliance by these individuals
with the terms of their admission into the
United States. Pursuant to exemptions (j)(2),
(k)(1), (k)(2) and (k)(5) of the Privacy Act,
VerDate Aug<31>2005
14:57 Oct 22, 2008
Jkt 217001
portions of this system are exempt from 5
U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and
(I). Exemptions from the 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
accounting would also permit the individual
who is the subject of a record to impede the
investigation and avoid detection or
apprehension, which undermines the entire
system.
(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 and avoid detection or
apprehension. Amendment of the records
could interfere with ongoing investigations
and law enforcement activities and impose
an impossible administrative burden by
requiring investigations to be continuously
reinvestigated. In addition, permitting access
and amendment to such information also
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 enforcement of federal
laws, it is appropriate to retain all
information that may aid in establishing
patterns of unlawful activity.
(d) From subsections (e)(4)(G), (H) and (I)
(Agency Requirements), and (f) (Agency
Rules), because portions of this system are
exempt from the access provisions of
subsection (d).
Hugo Teufel III,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E8–25000 Filed 10–22–08; 8:45 am]
BILLING CODE 4410–10–P
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DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2008–0104]
Privacy Act of 1974: Implementation of
Exemptions; Immigration and Customs
Enforcement (ICE) General Counsel
Electronic Management System
(GEMS)
Privacy Office, DHS.
Final rule.
AGENCY:
ACTION:
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
General Counsel Electronic Management
System’’ (GEMS) from certain
provisions of the Privacy Act.
Specifically, the Department exempts
portions of the GEMS 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 October 23, 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, 71 FR 16519, April 3, 2006,
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 General Counsel
Electronic Management System (GEMS).
The GEMS system of records notice
(SORN) was published in the Federal
Register, 71 FR 16326, March 31, 2006.
Comments were invited on both the
proposed rule and SORN. No comments
were received from the public regarding
either the SORN or the proposed rule.
Therefore, no changes have been made
to the rule or the SORN, and DHS is
implementing the final rule as
published.
DHS is claiming exemption from
certain requirements of the Privacy Act
E:\FR\FM\23OCR1.SGM
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Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Rules and Regulations
for GEMS because the system will
consist of information that is created or
acquired and used by ICE attorneys
working on the preparation and
presentation of cases for a court or
adjudicative body before which ICE or
DHS is authorized or required to appear.
Attorneys for the Department of Justice
will also be able to access the system if
they have a need for the information in
the performance of their official duties.
ICE attorneys work closely with
investigators throughout the process of
adjudicating immigration cases. ICE
attorneys must have access to
investigative documents and related
materials in order to form their
decisions about how to handle
particular cases.
Additionally, ICE attorneys create
attorney work product associated with
immigration proceedings. The GEMS
system will facilitate the collection and
maintenance of materials used by ICE
attorneys in immigration adjudications.
It will supplement and ultimately
replace the current attorney work
product paper files that are primarily
stored and managed in the hardcopy
alien file commonly known as the ‘‘Afile.’’
In this final rule, DHS is exempting
this system, in part, from certain
provisions of the Privacy Act and
adding that exemption to Appendix C to
Part 5, DHS Systems of Records.
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.
Regulatory Requirements
A. Regulatory Impact Analyses
Changes to Federal regulations must
undergo several analyses. In conducting
these analyses, DHS has determined:
dwashington3 on PRODPC61 with RULES
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.
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Jkt 217001
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 investigations of
violations of civil or criminal laws 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.
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
63059
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 11
to read as follows:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
11. The General Counsel Electronic
Management System (GEMS) consists of
records and information created or collected
by attorneys for U.S. Immigration and
Customs Enforcement, which will be used in
the preparation and presentation of cases
before a court or other adjudicative body. ICE
attorneys work closely with ICE law
enforcement personnel throughout the
process of adjudicating immigration cases.
GEMS allows ICE attorneys to store all the
materials pertaining to immigration
adjudications, including documents related
to investigations, case notes and other
hearing related information, and briefs and
memoranda of law related to cases. Having
this information in one system should not
only facilitate the work of the ICE attorneys
involved in the particular case, but also will
provide a legal resource for other attorneys
who are adjudicating similar cases. The
system will also provide management
capabilities for tracking time and effort
expended in the preparation and
presentation of cases. Pursuant to exemptions
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)(2) through (5); and (g). Pursuant to 5
U.S.C. 552a (k)(1) and (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) (Accounting for
Disclosures) because release of the
accounting of disclosures could alert the
E:\FR\FM\23OCR1.SGM
23OCR1
dwashington3 on PRODPC61 with RULES
63060
Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 / Rules and Regulations
subject of an investigation of an actual or
potential criminal, civil, or regulatory
violation, to the existence of the
investigation, which in some cases may be
classified, and reveal investigative interest on
the part of DHS or ICE. 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, tamper
with witnesses or evidence, and 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 pertaining to an
immigration matter, which in some cases
may be classified, and prematurely 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, tamper
with witnesses or evidence, and 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 immigration 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 and for
the protection of national security, 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 of the nature or existence of an
investigation, which could cause interference
with the investigation, a related inquiry or
other law enforcement activities, some of
which may be classified.
(e) From subsection (e)(3) (Notice to
Subjects) because providing such detailed
information would impede law enforcement
in that it could compromise the existence of
a confidential investigation or reveal the
identity of witnesses or confidential
informants.
(f) From subsections (e)(4)(G) and (H)
(Agency Requirements), (f) (Agency Rules),
and (g) (Civil Remedies) because portions of
this system are exempt from the individual
access provisions of subsection (d).
(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.
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14:57 Oct 22, 2008
Jkt 217001
(h) From subsection (e)(8) (Notice on
Individuals) because compliance would
interfere with ICE’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) to the extent that
the system is exempt from other specific
subsections of the Privacy Act.
Hugo Teufel III,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E8–24996 Filed 10–22–08; 8:45 am]
BILLING CODE 4410–10–P
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
7 CFR Part 301
[Docket No. APHIS–2005–0103]
RIN 0579–AB98
Special Need Requests Under the Plant
Protection Act
Animal and Plant Health
Inspection Service, USDA.
ACTION: Final rule.
AGENCY:
SUMMARY: We are amending our
domestic quarantine regulations to
establish a process by which a State or
political subdivision of a State could
request approval to impose prohibitions
or restrictions on the movement in
interstate commerce of specific articles
that are in addition to the prohibitions
and restrictions imposed by the Animal
and Plant Health Inspection Service.
The Plant Protection Act provides that
States or political subdivisions of States
may make such special need requests,
but there are currently no procedures in
place for their submission or
consideration. This action establishes a
process by which States may make a
special need request.
DATES: Effective Date: November 24,
2008.
Mr.
Osama El-Lissy, Director, Emergency
Management, Emergency and Domestic
Programs, PPQ, APHIS, 4700 River Road
Unit 134, Riverdale, MD 20737–1237;
(301) 734–5459.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Background
The Plant Protection Act (PPA, 7
U.S.C. 7701 et seq.) gives authority to
the Secretary of Agriculture to prohibit
or restrict the importation, entry,
exportation, or movement in interstate
PO 00000
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commerce of any plant, plant product,
biological control organism, noxious
weed, article, or means of conveyance if
the Secretary determines that the
prohibition or restriction is necessary to
prevent the introduction of a plant pest
or noxious weed into the United States,
or the dissemination of a plant pest or
noxious weed within the United States.
The Secretary has delegated this
authority to the Administrator of the
Animal and Plant Health Inspection
Service (APHIS).
Under section 436 of the PPA
(7 U.S.C. 7756), no State or political
subdivision of a State may regulate the
movement in interstate commerce of
any article, means of conveyance, plant,
biological control organism, plant pest,
noxious weed, or plant product in order
(1) to control a plant pest or noxious
weed; (2) to eradicate a plant pest or
noxious weed; or (3) to prevent the
introduction or dissemination of a
biological control organism, plant pest,
or noxious weed if the Secretary has
issued a regulation or order to prevent
the dissemination of the biological
control organism, plant pest, or noxious
weed within the United States. The only
exceptions to this prohibition are when
a State or political subdivision of a State
imposes regulations which are
consistent with and do not exceed the
regulations or orders issued by the
Secretary, or when the State or political
subdivision of a State demonstrates to
the Secretary, and the Secretary finds,
that there is a special need for
additional prohibitions or restrictions
based on sound scientific data or a
thorough risk assessment.
On April 4, 2006, we published in the
Federal Register (71 FR 16711–16716,
Docket No. APHIS–2005–0103) a
proposal 1 to amend the regulations by
adding a new ‘‘Subpart—Special Need
Requests’’ (7 CFR 301.1 through 301.1–
3) in which we set out procedures for
the submission and handling of special
need requests.
We solicited comments concerning
our proposal for 60 days ending June 5,
2006. We received 17 comments by that
date. They were from representatives of
State agriculture departments,
environmental groups, industry
organizations, and private citizens.
While the majority of these commenters
supported the establishment of criteria
for the submission of special need
requests, all of the commenters
expressed some reservations, which are
discussed below by topic. We are
1 To view the proposed rule and the comments
we received, go to https://www.regulations.gov/
fdmspublic/component/
main?main=DocketDetail&d=APHIS-2005-0103.
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]]>Agencies
[Federal Register Volume 73, Number 206 (Thursday, October 23, 2008)]
[Rules and Regulations]
[Pages 63058-63060]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24996]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2008-0104]
Privacy Act of 1974: Implementation of Exemptions; Immigration
and Customs Enforcement (ICE) General Counsel Electronic Management
System (GEMS)
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 General Counsel
Electronic Management System'' (GEMS) from certain provisions of the
Privacy Act. Specifically, the Department exempts portions of the GEMS
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 October 23, 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, 71 FR 16519, April 3,
2006, 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 General Counsel Electronic Management System (GEMS). The GEMS
system of records notice (SORN) was published in the Federal Register,
71 FR 16326, March 31, 2006. Comments were invited on both the proposed
rule and SORN. No comments were received from the public regarding
either the SORN or the proposed rule. Therefore, no changes have been
made to the rule or the SORN, and DHS is implementing the final rule as
published.
DHS is claiming exemption from certain requirements of the Privacy
Act
[[Page 63059]]
for GEMS because the system will consist of information that is created
or acquired and used by ICE attorneys working on the preparation and
presentation of cases for a court or adjudicative body before which ICE
or DHS is authorized or required to appear. Attorneys for the
Department of Justice will also be able to access the system if they
have a need for the information in the performance of their official
duties.
ICE attorneys work closely with investigators throughout the
process of adjudicating immigration cases. ICE attorneys must have
access to investigative documents and related materials in order to
form their decisions about how to handle particular cases.
Additionally, ICE attorneys create attorney work product associated
with immigration proceedings. The GEMS system will facilitate the
collection and maintenance of materials used by ICE attorneys in
immigration adjudications. It will supplement and ultimately replace
the current attorney work product paper files that are primarily stored
and managed in the hardcopy alien file commonly known as the ``A-
file.''
In this final rule, DHS is exempting this system, in part, from
certain provisions of the Privacy Act and adding that exemption to
Appendix C to Part 5, DHS Systems of Records.
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.
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 investigations of violations of civil
or criminal laws 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.
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.
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2. At the end of Appendix C to Part 5, add the following new paragraph
11 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
11. The General Counsel Electronic Management System (GEMS)
consists of records and information created or collected by
attorneys for U.S. Immigration and Customs Enforcement, which will
be used in the preparation and presentation of cases before a court
or other adjudicative body. ICE attorneys work closely with ICE law
enforcement personnel throughout the process of adjudicating
immigration cases. GEMS allows ICE attorneys to store all the
materials pertaining to immigration adjudications, including
documents related to investigations, case notes and other hearing
related information, and briefs and memoranda of law related to
cases. Having this information in one system should not only
facilitate the work of the ICE attorneys involved in the particular
case, but also will provide a legal resource for other attorneys who
are adjudicating similar cases. The system will also provide
management capabilities for tracking time and effort expended in the
preparation and presentation of cases. Pursuant to exemptions 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)(2) through (5);
and (g). Pursuant to 5 U.S.C. 552a (k)(1) and (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) (Accounting for Disclosures) because
release of the accounting of disclosures could alert the
[[Page 63060]]
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation, to the existence of the
investigation, which in some cases may be classified, and reveal
investigative interest on the part of DHS or ICE. 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, tamper with
witnesses or evidence, and 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 pertaining to an immigration matter,
which in some cases may be classified, and prematurely 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, tamper with witnesses or
evidence, and 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 immigration 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 and for
the protection of national security, 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 of the
nature or existence of an investigation, which could cause
interference with the investigation, a related inquiry or other law
enforcement activities, some of which may be classified.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information would impede law enforcement in
that it could compromise the existence of a confidential
investigation or reveal the identity of witnesses or confidential
informants.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements),
(f) (Agency Rules), and (g) (Civil Remedies) because portions of
this system are exempt from the individual access provisions of
subsection (d).
(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.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with ICE'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) to the extent that the system is exempt
from other specific subsections of the Privacy Act.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-24996 Filed 10-22-08; 8:45 am]
BILLING CODE 4410-10-P
