[Federal Register Volume 78, Number 95 (Thursday, May 16, 2013)]
[Proposed Rules]
[Pages 28761-28764]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11727]


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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.

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Federal Register / Vol. 78, No. 95 / Thursday, May 16, 2013 / 
Proposed Rules

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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2013-0012]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Immigration and Customs Enforcement--014 
Homeland Security Investigations Forensic Laboratory System of Records

AGENCY: Privacy Office, Department of Homeland Security.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/U.S. Immigration 
and Customs Enforcement--014 Homeland Security Investigations Forensic 
Laboratory 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 June 17, 2013.

ADDRESSES: You may submit comments, identified by docket number DHS-
2013-0012 by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-343-4010.
     Mail: Jonathan R. Cantor, Acting Chief Privacy Officer, 
Privacy Office, 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), U.S. Immigration and 
Customs Enforcement, 500 12th Street SW., Mail Stop 5004, Washington, 
DC 20536, email: ICEPrivacy@dhs.gov. For privacy issues please contact: 
Jonathan R. Cantor (202-343-1717), Acting Chief Privacy Officer, 
Privacy Office, Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    The Department of Homeland Security (DHS) is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``DHS/U.S. Immigration and Customs Enforcement 
(ICE)--014 Homeland Security Investigations Forensic Laboratory (HSI-
FL) 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 Homeland Security Investigations Forensic Laboratory (HSI-FL) 
is an accredited crime laboratory located within ICE's Office of 
Homeland Security Investigations (HSI) that provides a broad range of 
forensic, intelligence, and investigative support services for ICE, 
DHS, and many other U.S. and foreign law enforcement agencies. Created 
in 1978 under the U.S. Department of Justice, Immigration and 
Naturalization Service, the HSI-FL became part of DHS on March 1, 2003, 
as part of the federal government's response to the 9/11 attacks. The 
HSI-FL is the only U.S. crime laboratory specializing in scientific 
authentication; forensic examination; research, analysis, and training 
related to travel and identity documents; latent and patent finger and 
palm prints; and audio and video files in support of law enforcement 
investigations and activities by DHS and other agencies. To facilitate 
forensic examinations and for use in forensic document training, 
research, and analysis, the HSI-FL maintains case files, a case 
management system, an electronic library of travel and identity 
documents (Imaged Documents and Exemplars Library (IDEAL)), and a hard 
copy library referred to as the HSI-FL Library.
    As a crime laboratory specializing in the forensic examination and 
research of travel and identity documents, the HSI-FL attempts to 
determine the authenticity, authorship, and any actual or potential 
alterations of travel and identity documents. Examinations of such 
documents submitted by DHS and other U.S. and foreign law enforcement 
agencies and international organizations normally begin with a physical 
(naked eye, tactile) inspection and proceed to microscopic, 
instrumental, and comparative examinations, as necessary and 
appropriate. Depending on the document type, these examinations also 
may require the expert analyses of handwriting, hand printing, 
typewriting, printing processes, papers, inks, and stamp impressions.
    HSI-FL examinations are predominantly performed on documents used 
to establish identity or facilitate travel, such as passports, visas, 
identification cards, and border crossing cards, but can be performed 
on virtually any document, including envelopes, handwritten documents, 
letters, vital records, and typewritten documents. DHS and other 
federal, state, and international government agencies, or organizations 
such as the United Nations, may submit requests to HSI-FL for document 
authentication. In response, the HSI-FL may conduct an analysis and 
share the results of forensic examinations within DHS and externally 
with other government agencies and international organizations in the 
course of law enforcement investigations and for admission into 
evidence in judicial proceedings.
    In addition to the forensic examination of documents, the HSI-FL 
performs fingerprint analysis. The fingerprint analysis performed by 
HSI-FL may not be document-related. This analysis may include 
fingerprints collected from evidence during an investigation such as 
firearms, drug packaging, currency, periodicals, photo albums, CDs and 
computers. Fingerprint analysis will include both latent (invisible to 
the naked eye) and patent

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(visible to the naked eye) finger and palm prints.
    The HSI-FL also performs technical enhancements of audio and video 
files. The audio and video work performed by the HSI-FL is limited to 
enhancing files to improve their quality and clarifying detail to allow 
law enforcement agencies to better examine the files. For example, this 
could include removing background noise from an audio file or improving 
the clarity of an image in a video. The HSI-FL is not responsible for 
performing forensic examinations of the audio or video files but merely 
performs technical work to permit law enforcement agencies outside of 
the HSI-FL to conduct law enforcement investigations.

Laboratory Information Management System

    In order to track evidence and cases, the HSI-FL implemented the 
Laboratory Information Management System (LIMS) as their case 
management system. LIMS allows the HSI-FL to capture information about 
the individual submitting the request for analysis, identify the 
evidence submitted, track the evidence as it moves throughout the HSI-
FL for chain of custody purposes, capture case notes and results of 
examinations, store electronic images of evidence, and produce reports 
of findings. LIMS also captures other case-related activities such as 
descriptions of expert witness testimony provided by HSI-FL employees.
    The HSI-FL also uses LIMS to record and store operational (non-
forensic) requests for assistance, hours HSI-FL staff spend on training 
activities, and digital copies of training certificates of completion. 
In addition, LIMS generates recurring and ad hoc statistics reports in 
support of HSI-FL staff operations and management request.

Imaged Documents and Exemplars Library

    The IDEAL database and the HSI-FL Library contain two categories of 
records: (1) Travel and identity documents and (2) reference materials 
used to help in the forensic analysis of travel and identity documents. 
The HSI-FL maintains the documents and reference materials in both hard 
copy and electronic format for use in comparative forensic examination 
and fraudulent document training, research, and analysis. The hard 
copies are maintained in the HSI-FL Library while the electronic copies 
are stored in the IDEAL database. IDEAL contains electronic images and 
document characteristics for all documents and reference materials 
stored in the HSI-FL Library and allows HSI-FL employees to access 
these electronic images and document characteristics from their own 
workstations. Further, IDEAL provides the inventory control of the hard 
copy material in the HSI-FL Library, which includes the support of 
``checking out'' hard copy documents and reference materials in the 
HSI-FL Library by HSI-FL employees.
    IDEAL indexes and assigns to all documents added to the HSI-FL 
Library an IDEAL identification number (IDEAL ID Number) and bar code, 
thus providing a standard identification and tracking mechanism and 
permitting indexing. The IDEAL ID Number is system-generated and allows 
documents to be quickly located in IDEAL. The bar code number links the 
images maintained in IDEAL to hardcopies maintained in the HSI-FL 
Library.
    The HSI-FL collects and maintains genuine, altered, and counterfeit 
travel and identity documents (hereafter, ``documents'') in hard copy 
format from international organizations, government agencies, and law 
enforcement organizations from across the United States and around the 
world to research methods of document production and authenticate 
questionable documents through comparative forensic examinations. These 
travel and identity documents include documents such as passports, 
identification cards, birth certificates, stamps, visas, and any other 
document that can be used to establish nationality or identity from any 
country including the United States.
    From these same sources, the HSI-FL also collects information that 
helps with the identification of potential counterfeit characteristics, 
potential fraud, security features, and other information valuable to 
forensic analysis (hereafter, ``reference materials''). HSI-FL 
employees also make use of reference materials issued by the United 
States and other nations that contain useful information such as 
descriptions of security features of travel and identity documents or 
information concerning attempts to counterfeit or alter such documents.
    Document characteristics including personally identifiable 
information (PII) are manually entered into IDEAL to catalogue, track, 
and facilitate searching for documents and reference materials. 
Depending on the particular document, the document characteristics 
entered into IDEAL may include the document type, document number 
(e.g., passport number, driver's license number, state identification 
number), country of origin, region, authenticity of the document, 
information regarding the location and availability of the hard copy 
document in the HSI-FL Library, and a short description of the 
document. Social Security Numbers are not directly entered into IDEAL, 
instead the serial number on the back of the document is entered into 
the system. In addition to manually entered information, the document 
is scanned into IDEAL capturing and storing additional information, 
including PII. The PII stored on the images is view-only and may not be 
searched or used in any other manner in IDEAL.
    The HSI-FL divides the documents maintained in the HSI-FL Library 
and electronically in IDEAL into five different categories: (1) Genuine 
standard documents; (2) verified documents; (3) unverified documents; 
(4) counterfeit documents; and (5) altered documents. The first 
category, genuine standard documents, is comprised of documents never 
used in circulation and officially submitted to the HSI-FL by a valid 
issuing authority or other officially recognized domestic or foreign 
agency. Valid issuing authorities produce genuine standard documents as 
samples of particular travel and identity documents (e.g., passports) 
and include all of the same characteristics and security features of 
that document. Genuine standard documents are usually issued under an 
obviously fictitious name, such as ``Happy Traveler,'' to ensure they 
are easily identified as samples. Genuine standard documents do not 
contain the PII of actual individuals; however, they may contain 
photographs of individuals who have consented for their images to be 
used and distributed on these sample documents. The HSI-FL uses genuine 
standard documents during forensic analysis to authenticate other 
travel and identity documents purporting to have been issued by the 
same issuing authority. This authentication is used to support law 
enforcement investigations in response to government agency inquiries 
from the United States and around the world and judicial proceedings.
    The remaining four categories of documents are provided to the HSI-
FL by the valid issuing authority of a domestic or foreign agency, or 
from other sources including international organizations; DHS; the U.S. 
Department of State (DOS); and other federal, state, and foreign 
government agencies and law enforcement organizations. These four 
categories of documents may be directly provided for inclusion in the 
HSI-FL Library or may be initially provided for other purposes such as 
forensic examination and then retained by the HSI-FL, with the 
submitting agency's permission, after

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the examination is complete. The HSI-FL determines whether to include 
specific documents in the HSI-FL Library based upon the HSI-FL 
Library's need for that document, particularly whether the HSI-FL 
Library currently has a document of that type already in the HSI-FL 
Library. These categories of documents may contain the PII of 
individuals. Verified documents are documents that the HSI-FL has found 
to conform to comparable genuine travel and identity documents. 
Unverified documents are documents that the HSI-FL has analyzed and has 
not conclusively determined are verified, counterfeit, or altered. 
Counterfeit documents are documents that the HSI-FL has determined 
through forensic analysis are not authentic documents issued by a 
foreign or domestic governmental issuing authority. Altered documents 
are documents that were originally authentic documents issued by a 
foreign or domestic governmental issuing authority that have been 
changed in an unauthorized manner.
    Certain designated users at DOS have read-only access to IDEAL. 
This read-only access allows certain designated DOS employees to search 
and view travel and identity documents and reference materials. These 
documents and materials may contain the PII of actual individuals. This 
information is used by the DOS for their reference and in support of 
their mission. This use includes supporting the processing of petitions 
or applications for benefits under the Immigration and Nationality Act, 
and other immigration and nationality laws including treaties and 
reciprocal agreements. It also includes when the DOS requires 
information to consider and/or provide an informed response to a 
request for information from a foreign, international, or 
intergovernmental agency, authority, or organization about an alien or 
an enforcement operation with transnational implications. Authorized 
users from the DOS are the only non-DHS users with direct access to 
IDEAL.
    Consistent with DHS' information sharing mission, information 
stored in the DHS/ICE-014 Homeland Security Investigations Forensic 
Laboratory System of Records may be shared with other DHS components 
that have a need to know the information to carry out their national 
security, law enforcement, immigration, intelligence, or other homeland 
security functions. In addition, information may be shared with 
appropriate federal, state, local, tribal, territorial, foreign, or 
international government agencies consistent with the routine uses set 
forth in the system of records notice.
    This proposed rulemaking will be included in DHS' inventory of 
record systems.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which federal government 
agencies collect, maintain, use, and disseminate individuals' records. 
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. In the Privacy Act, 
an individual is defined to encompass U.S. citizens and lawful 
permanent residents. As a matter of policy, DHS extends administrative 
Privacy Act protections to all individuals when systems of records 
maintain information on U.S. citizens, lawful permanent residents, and 
visitors.
    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-014 Homeland Security Investigations Forensic 
Laboratory System of Records. Some information in DHS/ICE-014 Homeland 
Security Investigations Forensic Laboratory System of Records 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' ability to obtain information 
from third parties and other sources; and to protect the privacy of 
third parties. Disclosure of information to the subject of the inquiry 
could also permit the subject to avoid detection or apprehension.
    In appropriate circumstances, when 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 system of records notice for DHS/ICE-014 Homeland Security 
Investigations Forensic Laboratory System of Records 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:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

0
1. The authority citation for Part 5 continues to read as follows:

    Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 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. Add at the end of Appendix C to Part 5, the following new paragraph 
70:

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    70. The DHS/ICE-014 Homeland Security Investigations Forensic 
Laboratory System of Records consists of electronic and paper 
records and will be used by DHS and its components. The DHS/ICE-014 
Homeland Security Investigations Forensic Laboratory System of 
Records contains records of evidence and cases submitted to the HSI-
FL. This information will include information on the individual 
submitting the request, identify the evidence submitted, track the 
evidence as it moves throughout the HSI-FL, capture case notes and 
results of examinations, store electronic images of evidence, and 
produce reports of findings. Other case-related records are 
maintained including descriptions of expert witness testimony 
provided by HSI-FL employees. Records in the DHS/ICE-014 Homeland 
Security Investigations Forensic Laboratory System of Records also 
include the library of genuine, altered, and counterfeit travel and 
identity documents provided to the HSI-FL by international 
organizations, government agencies, and law enforcement 
organizations from across the United States and around the world to 
research methods of document production and authenticate questioned 
documents through comparative forensic examinations. The DHS/ICE-014 
Homeland Security Investigations Forensic Laboratory System of 
Records 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. The Secretary of Homeland Security, pursuant to 5 U.S.C. 
552a(j)(2), has exempted this system from the following provisions 
of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d); (e)(1),

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(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); 
(f); and (g). Additionally, the Secretary of Homeland Security, 
pursuant to 5 U.S.C. 552a(k)(2), has exempted this system from the 
following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Where a record 
received from another system has been exempted in that source system 
under 5 U.S.C. 552a(j)(2), DHS will claim the same exemptions for 
those records that are claimed for the original primary systems of 
records from which they originated and claims any additional 
exemptions set forth here. 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 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 classified and other 
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), (e)(4)(H), and (e)(4)(I) (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 
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)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.

    Dated: April 22, 2013.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2013-11727 Filed 5-15-13; 8:45 am]
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