[Federal Register Volume 75, Number 39 (Monday, March 1, 2010)]
[Rules and Regulations]
[Pages 9085-9086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4160]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules
and Regulations
[[Page 9085]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2010-0005]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security Immigration and Customs Enforcement--012 Visa
Security Program Records
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
SUMMARY: Following a Notice of Proposed Rulemaking (NPRM) and public
comment, this rule amends the Department of Homeland Security (DHS)
Immigration and Customs Enforcement (ICE)'s regulations by exempting a
new system of records from several provisions of the Privacy Act. The
Visa Security Program Records system (DHS/ICE-012) includes records
used as part of a visa vetting program known as the Visa Security
Program Tracking System (VSPTS-Net) in support of Section 428 of the
Homeland Security Act of 2002. Under the Visa Security Program, ICE
conducts security reviews of visa applicants. DHS ICE is exempting DHS/
ICE-012 from provisions of the Privacy Act to the extent necessary to
protect the integrity of the law enforcement information that may be
included in the system of records.
DATES: Effective Date: This final rule is effective March 1, 2010.
FOR FURTHER INFORMATION CONTACT: For general questions and privacy
issues, please contact: Lyn Rahilly (202-732-3300), Privacy Officer,
U.S. Immigration and Customs Enforcement, [email protected]; or Mary
Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office,
U.S. Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
Background
The Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, governs the
means by which the U.S. Government collects, maintains, uses, and
disseminates personally identifiable information. The Privacy Act
applies to information that is maintained in a ``system of records.'' A
``system of records'' is a group of any records under the control of an
agency from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual. See 5 U.S.C. 552a(a)(5).
An individual may request access to records containing information
about him or herself. 5 U.S.C. 552a(b), (d). However, the Privacy Act
authorizes Government agencies to exempt systems of records from access
by individuals under certain circumstances, such as where the access or
disclosure of such information would impede national security or law
enforcement efforts. Exemptions from Privacy Act provisions must be
established by regulation. 5 U.S.C. 552a(j), (k).
On September 30, 2009, DHS ICE published a system of records in the
Federal Register (74 FR 50228) establishing a new Privacy Act system of
records entitled Visa Security Program Records (DHS/ICE-012). The Visa
Security Program Records system maintains records for the Visa Security
Program Tracking System which carries out the requirement of section
428 of the Homeland Security Act of 2002 and provides for DHS ICE's
assumption of visa security reviews.
In conjunction with the establishment and publication for the Visa
Security Program Records system of records on September 30, 2009, DHS
ICE initiated a proposed rulemaking in the Federal Register (74 FR
50148) to exempt this system of records from a number of provisions of
the Privacy Act because this system of records may contain law
enforcement sensitive records as well as records of information
recompiled from, or created from, information contained in other
systems of records which are exempt from certain provisions of the
Privacy Act. With the publication of this final rule, in accordance
with 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2), DHS ICE is exempting the
Visa Security Program Records system from the following provisions of
the Privacy Act: 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2),
(e)(3), (e)(4)(G), and (e)(4)(H), (e)(5), and (e)(8); (f); and (g).
Discussion of Comments
DHS ICE received three comments on the proposed rule from the
public. Some of the comments were in support of the exemptions claimed
by DHS ICE. One comment dealt with the ability to access and correct
personal information contained within the Visa Security Program
Tracking System.
One commenter raised the concern that individuals who are the
subjects of visa security reviews may not be able to access and amend
their own records due to the proposed exemption of the Visa Security
Program Records from 5 U.S.C. 552a(d), which grants the right to
individuals to access and amend their records. The commenter
acknowledges that providing such access and amendment rights during a
visa review could disrupt the visa security process, but questions
whether it is necessary to prohibit access and amendment after the visa
review has concluded.
DHS ICE recognizes that although there is a need for the exemptions
provided for in this document, there may be instances where such
exemptions can be waived. There may be times when the Privacy Act
exemptions claimed here are not necessary to further a governmental
interest. In appropriate circumstances, where compliance would not
appear to interfere with, or adversely affect, the law enforcement and
national security purposes of the system and the overall law
enforcement and security process, the applicable exemptions may be
waived. In the case of access and amendment requests from the Visa
Security Program Records system, each access request will be evaluated
on a case-by-case basis and if no harm to law enforcement interests or
national security would ensue from disclosure, the exemption will be
waived and the records (or portions of the records) will be disclosed.
In addition, as discussed in the Visa Security Program Tracking
System Privacy Impact Assessment, information in the Visa Security
Program Records system that consists of or is solely derived from a
State Department visa record is subject to statutory
[[Page 9086]]
confidentiality requirements pursuant to the Immigration and
Nationality Act Section 222(f). Section 222(f) prohibits the visa
applicant from accessing or amending certain information in their visa
records, including visa records that have been reincorporated into this
system of records.
The two remaining commenters expressed support of the exemptions
proposed for the Visa Security Program Records system or for the Visa
Security Program as a whole.
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.
Subpart B also issued under 5 U.S.C. 552a.
0
2. At the end of Appendix C to Part 5, add the following new paragraph
47 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
47. The Visa Security Program Records (VSPR) system of records
consists of electronic and paper records and will be used by the
Department of Homeland Security (DHS) U.S. Immigration and Customs
Enforcement (ICE). VSPR consists of information created in support
of the Visa Security Program, the purpose of which is to identify
persons who may be ineligible for a U.S. visa because of criminal
history, terrorism association, or other factors and convey that
information to the State Department, which decides whether to issue
the visa. VSPR contains records on visa applicants for whom a visa
security review is conducted. VSPR 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. Pursuant to exemption
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), and (e)(4)(H), (e)(5) and (e)(8); (f); 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) and (4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the
individual to the existence of an investigation in the form of a
visa security review predicated on classified, national security,
law enforcement, foreign government, or other sensitive information.
Disclosure of the accounting would therefore present a serious
impediment to ICE's Visa Security Program, immigration 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, thereby undermining the
entire investigative process.
(b) From subsection (d) (Access to Records) because access to
the records contained in this system of records could alert the
individual to the existence of an investigation in the form of a
visa security review predicated on classified, national security,
law enforcement, foreign government, or other sensitive information.
Revealing the existence of an otherwise confidential investigation
could also provide the visa applicant an opportunity to conceal
adverse information or take other actions that could thwart
investigative efforts; and reveal the identity of other individuals
with information pertinent to the visa security review, thereby
providing an opportunity for the applicant to interfere with the
collection of adverse or other relevant information from such
individuals. Access to the records would therefore present a serious
impediment to the enforcement of Federal immigration laws, law
enforcement efforts and/or efforts to preserve national security.
Amendment of the records could interfere with ICE's 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 classified and other
security-sensitive information that could be detrimental to national
or homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations of visa
applications, 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 interest
of effective enforcement of Federal immigration laws, it is
appropriate to retain all information that may be relevant to the
determination whether an individual is eligible for a U.S. visa.
(d) From subsection (e)(2) (Collection of Information From
Individuals) because requiring that information be collected from
the visa applicant would alert the subject to the fact of an
investigation in the form of a visa security review, and to the
existence of adverse information about the individual, thereby
interfering with the related investigation and law enforcement
activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information would impede immigration
enforcement activities in that it could compromise investigations
by: Revealing the existence of an otherwise confidential
investigation and thereby provide an opportunity for the visa
applicant to conceal adverse information, or take other actions that
could thwart investigative efforts; Reveal the identity of other
individuals with information pertinent to the visa security review,
thereby providing an opportunity for the applicant to interfere with
the collection of adverse or other relevant information from such
individuals; or reveal the identity of confidential informants,
which would negatively affect the informant's usefulness in any
ongoing or future investigations and discourage members of the
public from cooperating as confidential informants in any future
investigations.
(f) From subsections (e)(4)(G) and (H) (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
and immigration enforcement efforts as described above.
(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. Compliance with (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) because to require individual notice
of disclosure of information due to compulsory legal process would
pose an impossible administrative burden on DHS and other agencies
and could alert the subjects of counterterrorism, law enforcement,
or intelligence investigations to the fact of those investigations
when not previously known.
(i) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act relating to
individuals' rights to access and amend their records contained in
the system. Therefore DHS is not required to establish rules or
procedures pursuant to which individuals may seek a civil remedy for
the agency's: Refusal to amend a record; refusal to comply with a
request for access to records; failure to maintain accurate,
relevant, timely and complete records; or failure to otherwise
comply with an individual's right to access or amend records.
Dated: February 4, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-4160 Filed 2-26-10; 8:45 am]
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