[Federal Register Volume 70, Number 54 (Tuesday, March 22, 2005)]
[Proposed Rules]
[Pages 14427-14428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5584]


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 Proposed Rules
                                                 Federal Register
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 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. 70, No. 54 / Tuesday, March 22, 2005 / 
Proposed Rules  

[[Page 14427]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[DHS-2004-0016]


Privacy Act of 1974: Implementation of Exemptions

AGENCY: Privacy Office, Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is concurrently 
establishing a new system of records pursuant to the Privacy Act of 
1974 for the Bureau of Immigration and Customs Enforcement, Student and 
Exchange Visitor Program. In this proposed rulemaking, the Department 
proposes to exempt portions of this 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 April 21, 2005.

ADDRESSES: You may submit comments, identified by docket number DHS-
2004-0016, by one of the following methods:
    EPA Federal Partner EDOCKET Web site: http://www.epa.gov/feddocket.
    Follow instructions for submitting comments on the Web site.
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Fax: 202-772-5036 (This is not a toll-free number).
    Mail: Department of Homeland Security, Attn: Privacy Office/Nuala 
O'Connor Kelly, Chief Privacy Officer/202-772-9848, Washington, DC 
20528.
    Hand Delivery/Courier: Department of Homeland Security, Attn: 
Privacy Office/Nuala O'Connor Kelly, Chief Privacy Officer/202-772-
9848, Anacostia Naval Annex, 245 Murray Lane, SW, Building 410, 
Washington, DC 20528, 7:30 a.m. to 4 p.m.
    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.epa.gov/feddocket, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.epa.gov/feddocket. You may also 
access the Federal eRulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Nuala O'Connor Kelly, Chief Privacy 
Officer, Department of Homeland Security, Washington, DC 20528 by 
telephone 202-772-9848 or facsimile 202-772-5036.

SUPPLEMENTARY INFORMATION:

Background

    Concurrently with the publication of this notice of proposed 
rulemaking, the Department of Homeland Security (DHS) is publishing a 
Notice establishing a new system of records that is subject to the 
Privacy Act of 1974, 5 U.S.C. 552a. This new system is the Student and 
Exchange Visitor Information System (SEVIS), maintained by the Student 
and Exchange Visitor Program. DHS is proposing to exempt this system, 
in part, from certain provisions of the Privacy Act.
    The Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States 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. 
Individuals may request 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 Homeland Security Act of 2002 requires the Secretary of DHS to 
appoint a senior official to oversee implementation of the Privacy Act 
and to undertake other privacy-related activities. Pub. L. 107-296, 
section 222, 116 Stat. 2135, 2155 (Nov. 25, 2002) (HSA). The system of 
records being published today helps to carry out the DHS Chief Privacy 
Officer's statutory activities.
    The Privacy Act requires each agency to publish in the Federal 
Register a description of the type and character of each system of 
records that the agency maintains, and the routine uses that are 
contained in each system in order to make agency recordkeeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals to more easily find such files within the agency.
    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 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.

List of Subjects in 6 CFR Part 5

    Privacy; Freedom of information.


[[Page 14428]]


    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

    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.

    2. Add Appendix C to Part 5 the following:

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

    This Appendix implements provisions of the Privacy Act of 1974 
that permit the Department of Homeland Security (DHS) to exempt its 
systems of records from provisions of the Act.
    Portions of the following DHS systems of records are exempt from 
certain provisions of the Privacy Act pursuant to 5 U.S.C. 552(j) 
and (k):
    1. DHS/ICE 001, the Student and Exchange Visitor Information 
System, which allows DHS to collect and maintain information on 
nonimmigrant students and exchange visitors, and the schools and 
exchange program sponsors that host them 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).

    Dated: March 15, 2005.
Nuala O'Connor Kelly,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 05-5584 Filed 3-21-05; 8:45 am]
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