[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Proposed Rules]
[Pages 77549-77551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29843]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2008-0171]


Privacy Act of 1974: Implementation of Exemptions; DHS/CBP-009 
Nonimmigrant Inspection System

AGENCY: Privacy Office, Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is amending its 
regulations to exempt portions of a system of records from certain 
provisions of the Privacy Act. Specifically, the Department

[[Page 77550]]

proposes to exempt portions of the Nonimmigrant Inspection System from 
one or more provisions of the Privacy Act because of criminal, civil, 
and administrative enforcement requirements.

DATES: Written comments must be submitted on or before January 20, 
2009.

ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0171 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.

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, Regulations and 
Rulings, Office of International Trade, Mint Annex, 1300 Pennsylvania 
Ave., NW., Washington, DC 20229. For privacy issues please contact: 
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), elsewhere in this edition of the Federal Register, 
published a Privacy Act system of records notice describing records in 
the Nonimmigrant Inspection System (NIIS). Pursuant to 6 U.S.C. 
552(a)(1) 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 
be maintained in this system. 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.
    No exemption shall be asserted with respect to information 
maintained in the system that is collected from a person's travel 
documents or submitted by a government computer system in support of a 
proffered travel document, if that person, or his or her agent, seeks 
access or amendment of such information.
    This system, however, may contain records or information pertaining 
to the accounting of disclosures made from NIIS to other law 
enforcement agencies (Federal, State, Local, Foreign, International or 
Tribal) in accordance with the published routine uses and 5 U.S.C. 552a 
(b)(7). For the accounting of these disclosures only, in accordance 
with 5 U.S.C. 552a (j)(2), and (k)(2), DHS will claim the original 
exemptions for these records or information from subsection (c)(3), 
(e)(8), and (g) of the Privacy Act of 1974, as amended, as necessary 
and appropriate to protect such information.
    DHS needs these exemptions in order to protect information relating 
to law enforcement investigations from disclosure to subjects of 
investigations and others who could interfere with investigatory and 
law enforcement activities. Specifically, the exemptions are required 
to: Preclude subjects of investigations from frustrating the 
investigative process; avoid disclosure of investigative techniques; 
protect the identities and physical safety of confidential informants 
and of law enforcement personnel; ensure DHS's and other federal 
agencies' ability to obtain information from third parties and other 
sources; protect the privacy of third parties; and safeguard sensitive 
information.
    Nonetheless, DHS will examine each request on a case-by-case basis, 
and, after conferring with the appropriate component or agency, may 
waive applicable exemptions in appropriate circumstances and where it 
would not appear to interfere with or adversely affect the law 
enforcement purposes of the systems from which the information is 
recompiled or in which it is contained.
    Again, DHS will not assert any exemption with respect to 
information maintained in the system that is collected from a person 
and submitted by that person's air or vessel carrier, if that person, 
or his or her agent, seeks access or amendment of such information.

List of Subjects in 6 CFR Part 5

    Privacy, Freedom of information.

    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: Public Law 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.

    2. At the end of Appendix C to Part 5, add the following new 
paragraph ``14'':

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

* * * * *
    14. DHS/CBP-009, Nonimmigrant Inspection System (NIIS). This 
system may contain records or information pertaining to the 
accounting of disclosures made from NIIS to other law enforcement 
and counterterrorism agencies (Federal, State, Local, Foreign, 
International or Tribal) in accordance with the published routine 
uses. For the accounting of these disclosures only, in accordance 
with 5 U.S.C. 552a (j)(2), and (k)(2), DHS will claim the original 
exemptions for these records or information from subsection (c)(3), 
(e)(8), and (g) of the Privacy Act of 1974, as amended, as necessary 
and appropriate to protect such information. Further, no exemption 
shall be asserted with respect to biographical or travel information 
submitted by, and collected from, a person's travel documents or

[[Page 77551]]

submitted from a government computer system to support or to 
validate those travel documents. After conferring with the 
appropriate component or agency, DHS may waive applicable exemptions 
in appropriate circumstances and where it would not appear to 
interfere with or adversely affect the law enforcement purposes of 
the systems from which the information is recompiled or in which it 
is contained. Exemptions from the above particular subsections are 
justified, on a case-by-case basis to be determined at the time a 
request is made, when information in this system of records is 
recompiled or is created from information contained in other systems 
of records subject to exemptions for the following reasons:
    (a) From subsection (c)(3) (Accounting for Disclosure) because 
making available to a record subject the accounting of disclosures 
from records concerning him or her would specifically reveal any 
investigative interest in the individual. Revealing this information 
could reasonably be expected to compromise ongoing efforts to 
investigate a violation of U.S. law, including investigations of a 
known or suspected terrorist, by notifying the record subject that 
he or she is under investigation. This information could also permit 
the record subject to take measures to impede the investigation, 
e.g., destroy evidence, intimidate potential witnesses, or flee the 
area to avoid or impede the investigation.
    (b) From subsection (e)(8) (Notice on Individuals) 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 or law enforcement investigations to the fact of 
those investigations when not previously known.
    (c) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

    Dated: December 10, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. E8-29843 Filed 12-18-08; 8:45 am]
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