[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
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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.

-----------------------------------------------------------------------

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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