[Federal Register Volume 73, Number 206 (Thursday, October 23, 2008)]
[Rules and Regulations]
[Pages 63057-63058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25000]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 73, No. 206 / Thursday, October 23, 2008 /
Rules and Regulations
[[Page 63057]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2008-0103]
Privacy Act of 1974: Implementation of Exemptions; Immigration
and Customs Enforcement (ICE) Student and Exchange Visitor Information
System (SEVIS) of Records
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
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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 Student and Exchange
Visitor Information System'' (SEVIS) from certain provisions of the
Privacy Act. Specifically, the Department exempts portions of the SEVIS
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: [email protected], 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, 70 FR 14427, Mar. 22,
2005, 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 Student and Exchange Visitor Information System (SEVIS). The SEVIS
system of records notice (SORN) was published concurrently in the
Federal Register, 70 FR 14477, Mar. 22, 2005, and 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 for SEVIS. Because the purpose of the SEVIS system is to collect
and maintain pertinent information on nonimmigrant students and
exchange visitors and the schools and exchange visitor program sponsors
that host them while in the United States in order to ensure that these
individuals comply with the requirements of their admission, it is
possible that the information in the record system may pertain to
national security or law enforcement matters. In such cases, allowing
access to such information could alert the subject of the information
to an investigation of an actual or potential criminal, civil, or
regulatory violation and reveal investigative interest on the part of
DHS or another agency. Disclosure of the information would therefore
present a serious impediment to law enforcement efforts and/or efforts
to preserve national security. Disclosure of the information 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. This exemption is a standard law enforcement and
national security exemption utilized by numerous law enforcement and
intelligence agencies.
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 recordkeeping, 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 civil or 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
[[Page 63058]]
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.
0
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
* * * * *
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,
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]
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