[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Notices]
[Pages 77739-77743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29792]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
[Docket No. DHS-2008-0154]
Privacy Act of 1974; U.S. Customs and Border Protection--009
Nonimmigrant Information System
AGENCY: Privacy Office, DHS.
ACTION: Notice of Privacy Act system of records.
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SUMMARY: In accordance with the Privacy Act of 1974 and as part of the
Department of Homeland Security's ongoing effort to review and update
legacy system of record notices, the Department of Homeland Security
proposes to update and reissue the following legacy record system,
Justice/INS-036 Nonimmigrant Information System, January 31, 2003, as a
Department of Homeland Security system of records notice titled, U.S.
Customs and Border Protection Nonimmigrant Information System.
Categories of individuals, categories of records, and the routine uses
of this legacy system of records notice have
[[Page 77740]]
been reviewed updated to better reflect the Department of Homeland
Security U.S. Customs and Border Protection Nonimmigrant Information
System. Concurrent with this System of Records Notice, DHS is issuing a
notice of proposed rulemaking to exempt this system for certain aspects
of the Privacy Act. This reissued system will be included in the
Department of Homeland Security's inventory of record systems.
DATES: Written comments must be submitted on or before January 20,
2009.
ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0154 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, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
Instructions: All submissions received must include the
agency name and docket number for this rulemaking. 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:
Laurence E. Castelli (202-325-0280), Chief, Privacy Act Policy and
Procedures Branch, U.S. Customs and Border Protection, Office of
International Trade, Regulations & Rulings, Mint Annex, 799 Ninth
Street, NW., Washington, DC 20001-4501. For privacy issues contact:
Hugo Teufel III (703-235-0780), Chief Privacy Officer, Privacy Office,
U.S. Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
Pursuant to 6 U.S.C. 552(a)(1), the Department of Homeland Security
(DHS) and Customs and Border Protection (CBP) have maintained the
Nonimmigrant Information System (NIIS) in conformance with the terms of
the previous NIIS SORN, 68 FR 5048.
As part of its efforts to streamline and consolidate its record
systems, DHS is updating and reissuing a DHS/CBP system of records
under the Privacy Act (5 U.S.C. 552a) to reflect CBP's current and
future practices regarding the processing of foreign nationals entering
the U.S. CBP inspects all persons applying for admission to the U.S. As
part of this inspection process, CBP establishes the identity,
nationality, and admissibility of persons crossing the border and may
create a border crossing record, which would be covered by DHS/CBP-007
Border Crossing Information System of Records Notice (73 FR 43457
published on July 25, 2008), or additional CBP records, which would be
covered by the TECS System of Records Notice (re-published concurrently
with this notice) during this process. Similarly, CBP has authority to
keep records of departures from the U.S.
In addition to information collected from the alien during the
inspection process, CBP primarily uses two immigration forms to collect
information from nonimmigrant aliens as they arrive in the U.S.: The I-
94, Arrival/Departure Record and, for aliens applying for admission
under the visa waiver program, the I-94W Nonimmigrant Visa Waiver
Arrival/Departure Form. Separately, Canadian nationals, who travel to
the U.S. as tourists or for business, and Mexican nationals, who
possess a nonresident alien Mexican Border Crossing Card, are not
required to complete an I-94 upon arrival, but their information will
also be maintained in NIIS. Additionally, DHS/CBP has been implementing
an Electronic System for Travel Authorization (ESTA) to permit
nationals of VWP countries to submit their biographic and admissibility
information online in advance of their travel to the U.S. Applicants
under this program will have access to their accounts so that they may
check the status of their ESTA and make limited amendments. ESTA is
covered by privacy documentation including a SORN published on June 10,
2008, 73 FR 32720.
In accordance with the Privacy Act of 1974 and as part of DHS's
ongoing effort to review and update legacy system of record notices,
DHS/CBP proposes to update and reissue the following legacy record
system, Justice/INS-036 Nonimmigrant Information System (68 FR 5048
January 31, 2003), as a DHS/CBP system of records notice titled, U.S.
Customs and Border Protection Nonimmigrant Information System.
Categories of individuals and categories of records have been reviewed,
and the routine uses of this legacy system of records notice have been
updated to better reflect the DHS/CBP Nonimmigrant Information System.
Additionally, the exemptions for this legacy system of records notice
transfer from the system's legacy agency to DHS. This reissued system
will be included in the DHS's inventory of record systems.
II. Privacy Act
The Privacy Act embodies fair information principles in a statutory
framework governing the means by which the U.S. Government collects,
maintains, uses and disseminates 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 the
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 where systems of records maintain
information on U.S. citizens, lawful permanent residents, and visitors.
Individuals may request access to 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 denoting the type and character of each system
of records that the agency maintains, and the routine uses that are
contained in each system to make agency recordkeeping practices
transparent, to notify individuals regarding the uses of their records,
and to assist the individual to more easily find such files within the
agency. Below is a description of the NIIS System of Records.
In accordance with 5 U.S.C. 552a(r), a report concerning this
record system has been sent to the Office of Management and Budget and
to the Congress.
SYSTEM OF RECORDS:
DHS/CBP-009.
SYSTEM NAME:
U.S. Customs and Border Protection--009 Nonimmigrant Information
System.
SECURITY CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
This computer database is located at the U.S. Customs and Border
Protection (CBP) National Data Center. Computer terminals are located
at customhouses, border ports of entry, airport inspection facilities
under the jurisdiction of the Department of Homeland Security and other
locations at which DHS authorized personnel may be posted to
[[Page 77741]]
facilitate DHS's mission. Terminals may also be located at appropriate
facilities for other participating government agencies that have
obtained system access pursuant to a Memorandum of Understanding.
CATEGORIES OF INDIVIDUALS COVERED BY THIS SYSTEM:
Categories of individuals covered by this system are nonimmigrant
aliens entering and departing the U.S.
CATEGORIES OF RECORDS IN THIS SYSTEM:
NIIS is a dataset residing on the CBP Information Technology (IT)
platform and in paper form. It contains arrival and departure
information collected from foreign nationals entering and departing the
U.S. on such forms as the I-94, I-94W, or through interviews with CBP
officers. This information consists of the following data elements,
where applicable:
Full Name (first, middle, and last);
Date of birth;
E-mail address, as required;
Travel document type (e.g., passport information,
permanent resident card, etc.), number, issuance date, expiration date
and issuing country;
Country of citizenship;
Date of crossing both into and out of the U.S.;
Scanned images linked through the platform;
Airline and flight number;
City of embarkation;
Address while visiting the U.S.;
Admission number received during entry into the U.S.;
Whether the individual has a communicable disease,
physical or mental disorder, or is a drug abuser or addict;
Whether the individual has been arrested or convicted for
a moral turpitude crime, drugs, or has been sentenced for a period
longer than five years;
Whether the individual has engaged in espionage, sabotage,
terrorism, or Nazi activity between 1933 and 1945;
Whether the individual is seeking work in the U.S.;
Whether the individual has been excluded or deported, or
attempted to obtain a visa or enter the U.S. by fraud or
misrepresentation;
Whether the individual has ever detained, retained, or
withheld custody of a child from a U.S. citizen granted custody of the
child;
Whether the individual has ever been denied a U.S. visa or
entry into the U.S., or had a visa cancelled (if yes, when and where);
Whether the individual has ever asserted immunity from
prosecution; and
Any change of address while in the U.S.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
5 U.S.C. 301; the Federal Records Act, 44 U.S.C. 3101; The legal
authority for NIIS comes from 8 U.S.C. 1103, 8 U.S.C. 1184,
Intelligence Reform and Terrorism Prevention Act of 2004, Public Law
108-458, The Immigration and Nationality Act, 8 U.S.C. 1354, and the
Homeland Security Act of 2002, Public Law 107-296.
PURPOSE(S):
NIIS is a repository of records for persons arriving in or
departing from the U.S. as nonimmigrant visitors and is used for entry
screening, admissibility, and benefits purposes. The system provides a
central repository of contact information for such aliens while in the
U.S. and also captures arrival and departure information for
determination of future admissibility.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND THE PURPOSES OF SUCH USES:
In addition to those disclosures generally permitted under 5 U.S.C.
552a(b) of the Privacy Act, all or a portion of the records or
information contained in this system may be disclosed outside DHS as a
routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice or other Federal agency conducting
litigation or in proceedings before any court, adjudicative or
administrative body, when it is necessary to the litigation and one of
the following is a party to the litigation or has an interest in such
litigation:
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where DOJ or
DHS has agreed to represent the employee; or
4. The U.S. or any agency thereof, is a party to the litigation or
has an interest in such litigation, and DHS determines that the records
are both relevant and necessary to the litigation and the use of such
records is compatible with the purpose for which DHS collected the
records.
B. To a congressional office from the record of an individual in
response to an inquiry from that congressional office made at the
request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or other
Federal government agencies pursuant to records management inspections
being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of
performing audit or oversight operations as authorized by law, but only
such information as is necessary and relevant to such audit or
oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or
confidentiality of information in the system of records has been
compromised;
2. The Department has determined that as a result of the suspected
or confirmed compromise there is a risk of harm to economic or property
interests, identity theft or fraud, or harm to the security or
integrity of this system or other systems or programs (whether
maintained by DHS or another agency or entity) or harm to the
individual who relies upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is
reasonably necessary to assist in connection with DHS's efforts to
respond to the suspected or confirmed compromise and prevent, minimize,
or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants,
and others performing or working on a contract, service, grant,
cooperative agreement, or other assignment for DHS, when necessary to
accomplish an agency function related to this system of records.
Individuals provided information under this routine use are subject to
the same Privacy Act requirements and limitations on disclosure as are
applicable to DHS officers and employees.
G. To appropriate Federal, State, local, tribal, or foreign
governmental agencies or multilateral governmental organizations
responsible for investigating or prosecuting the violations of, or for
enforcing or implementing, a statute, rule, regulation, order, license,
or treaty where DHS determines that the information would assist in the
enforcement of civil or criminal laws.
H. To a court, magistrate, or administrative tribunal in the course
of presenting evidence, including disclosures to opposing counsel or
witnesses in the course of civil or criminal discovery, litigation, or
settlement negotiations, or in response to a subpoena from a court of
competent jurisdiction.
I. To third parties during the course of a law enforcement
investigation to the extent necessary to obtain information pertinent
to the investigation, provided disclosure is appropriate to the proper
performance
[[Page 77742]]
of the official duties of the officer making the disclosure.
J. To an organization or individual in either the public or private
sector, either foreign or domestic, where there is a reason to believe
that the recipient is or could become the target of a particular
terrorist activity or conspiracy, to the extent the information is
relevant to the protection of life or property and disclosure is
appropriate to the proper performance of the official duties of the
person making the disclosure.
K. To an appropriate Federal, State, local, tribal, foreign, or
international agency, if the information is relevant and necessary to a
requesting agency's decision concerning the hiring or retention of an
individual, or issuance of a security clearance, license, contract,
grant, or other benefit, or if the information is relevant and
necessary to a DHS decision concerning the hiring or retention of an
employee, the issuance of a security clearance, the reporting of an
investigation of an employee, the letting of a contract, or the
issuance of a license, grant or other benefit and when disclosure is
appropriate to the proper performance of the official duties of the
person making the request.
L. To appropriate Federal, State, local, tribal, or foreign
governmental agencies or multilateral governmental organizations, for
purposes of assisting such agencies or organizations in preventing
exposure to or transmission of a communicable or quarantinable disease
or for combating other significant public health threats.
M. To Federal and foreign government intelligence or
counterterrorism agencies or components where CBP becomes aware of an
indication of a threat or potential threat to national or international
security, or where such use is to assist in anti-terrorism efforts and
disclosure is appropriate to the proper performance of the official
duties of the person making the disclosure.
N. To the news media and the public, with the approval of the Chief
Privacy Officer in consultation with counsel, when there exists a
legitimate public interest in the disclosure of the information or when
disclosure is necessary to preserve confidence in the integrity of DHS
or is necessary to demonstrate the accountability of DHS's officers,
employees, or individuals covered by the system, except to the extent
it is determined that release of the specific information in the
context of a particular case would constitute an unwarranted invasion
of personal privacy.
O. To appropriate Federal, State, local, tribal, or foreign
governmental agencies or multilateral governmental organizations where
DHS is aware of a need to utilize relevant data for purposes of testing
new technology and systems designed to enhance national security or
identify other violations of law
DISCLOSURE TO CONSUMER REPORTING AGENCIES:
None.
POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING,
AND DISPOSING OF RECORDS IN THE SYSTEM:
STORAGE:
The data is stored electronically at the CBP and DHS Data Center
for current data and offsite at an alternative data storage facility
for historical logs, system backups and in paper form.
RETRIEVABILITY:
These records may be searched on a variety of data elements
including name, addresses, place and date of entry or departure, or
country of citizenship as listed in the travel documents used at the
time of entry to the U.S. An admission number, issued at each entry to
the U.S. to track the particular admission, may also be used to
identify a database record.
SAFEGUARDS:
All NIIS records are protected from unauthorized access through
appropriate administrative, physical, and technical safeguards. These
safeguards include all of the following: restricting access to those
with a ``need to know''; using locks, alarm devices, and passwords;
compartmentalizing databases; auditing software; and encrypting data
communications.
NIIS information is secured in full compliance with the
requirements of the DHS IT Security Program Handbook. This handbook
establishes a comprehensive program, consistent with federal law and
policy, to provide complete information security, including directives
on roles and responsibilities, management policies, operational
policies, and application rules, which will be applied to component
systems, communications between component systems, and at interfaces
between component systems and external systems.
One aspect of the DHS comprehensive program to provide information
security involves the establishment of rules of behavior for each major
application, including NIIS. These rules of behavior require users to
be adequately trained regarding the security of their systems. These
rules also require a periodic assessment of technical, administrative
and managerial controls to enhance data integrity and accountability.
System users must sign statements acknowledging that they have been
trained and understand the security aspects of their systems. System
users must also complete annual privacy awareness training to maintain
current access.
NIIS transactions are tracked and can be monitored. This allows for
oversight and audit capabilities to ensure that the data is being
handled consistent with all applicable federal laws and regulations
regarding privacy and data integrity.
RETENTION AND DISPOSAL:
NIIS data is subject to a retention requirement. The information
collected and maintained in NIIS is used for entry screening,
admissibility, and benefits purposes and is retained for seventy five
(75) years from the date obtained. However, NIIS records that are
linked to active law enforcement lookout records, CBP matches to
enforcement activities, and/or investigations or cases will remain
accessible for the life of the law enforcement activities to which they
may become related. The current disposition for paper copy is 180 days
from date of departure.
SYSTEM MANAGER AND ADDRESS:
Assistant Commissioner, Office of Information Technology, U.S.
Customs and Border Protection Headquarters, 1300 Pennsylvania Avenue,
NW., Washington, DC 20229.
NOTIFICATION PROCEDURE:
Individuals seeking notification of and access to any record
contained in this system of records, or seeking to contest its content,
may submit a request in writing to CBP's FOIA Officer, 1300
Pennsylvania Avenue, NW., Mint Annex, Washington, DC 20229.
When seeking records about yourself from this system of records or
any other CBP system of records your request must conform with the
Privacy Act regulations set forth in 6 CFR part 5. You must first
verify your identity, meaning that you must provide your full name,
current address and date and place of birth. You must sign your
request, and your signature must either be notarized or submitted under
28 U.S.C. 1746, a law that permits statements to be made under penalty
of perjury as a substitute for notarization. While no specific form is
required, you may obtain forms for this purpose from the Director,
Disclosure and FOIA, http://www.dhs.gov or 1-866-431-0486. In addition
you should provide the following:
[[Page 77743]]
An explanation of why you believe the Department would
have information on you,
Specify when you believe the records would have been
created,
If your request is seeking records pertaining to another
living individual, you must include a statement from that individual
certifying his/her agreement for you to access his/her records.
Without this bulleted information CBP may not be able to conduct an
effective search, and your request may be denied due to lack of
specificity or lack of compliance with applicable regulations.
RECORD ACCESS PROCEDURES:
See ``Notification procedure'' above.
CONTESTING RECORD PROCEDURES:
See ``Notification procedure'' above.
RECORD SOURCE CATEGORIES:
The system contains certain data received on individuals,
passengers and crewmembers that arrive in, depart from, or transit
through the U.S. This system also contains information collected from
carriers that operate vessels, vehicles, aircraft and/or trains that
enter or exit the U.S. and from the individuals upon crossing the U.S.
border.
Basic information is obtained from individuals, the individual's
attorney/representative, CBP officials, and other federal, state,
local, and foreign agencies.
EXEMPTIONS CLAIMED FOR THE SYSTEM:
No exemption shall be asserted with respect to information
maintained in the system that is collected from a person or submitted
on behalf of a person, if that person, or his or her agent, seeks
access or amendment of such information.
This system, however, may contain information related to an ongoing
law enforcement investigation because the information regarding a
person's travel and border crossing was disclosed to appropriate law
enforcement in conformance with the above routine uses. As such
pursuant to 5 U.S.C. 552 a (j)(2) and (k)(2), DHS will claim exemption
from (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as
is necessary and appropriate to protect this information.
Dated: December 10, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-29792 Filed 12-18-08; 8:45 am]
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