[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Rules and Regulations]
[Pages 63946-63948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28913]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0044]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/National Protections and Programs Directorate/U.S. 
Visitor and Immigrant Status Indicator Technology--003 Technical 
Reconciliation Analysis Classification System of Records

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of a Department of Homeland 
Security/National Protections and Programs Directorate/U.S. Visitor and 
Immigrant Status Indicator Technology system of records entitled the 
``Department of Homeland Security/National Protections and Programs 
Directorate/U.S. Visitor and Immigrant Status Indicator Technology--003 
Technical Reconciliation Analysis Classification System of Records'' 
from certain provisions of the Privacy Act. Specifically, the 
Department exempts portions of the Department of Homeland Security/
National Protections and Programs Directorate/U.S. Visitor and 
Immigrant Status Indicator Technology--003 Technical Reconciliation 
Analysis Classification system of records 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 December 4, 2009.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Paul Hasson (202-298-5021), Privacy Officer, U.S. Visitor and Immigrant 
Status Indicator Technology, Washington, DC 20598. For privacy issues 
please contact: Mary Ellen Callahan (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, 73 FR 33928, June 16, 
2008, 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 
DHS/National Protections and Programs Directorate (NPPD)/U.S. Visitor 
and Immigrant Status Indicator Technology (US-VISIT)--003 Technical 
Reconciliation Analysis Classification system. The DHS/NPPD/US-VISIT--
003 Technical Reconciliation Analysis Classification system of records 
notice was published concurrently in the Federal Register, 73 FR 34028, 
June 16, 2008, and comments were invited on both the notice of proposed 
rulemaking and system of records notice. No comments were received on 
the notice of proposed rulemaking. Comments were received on the system 
of records notice.

Public Comments

    DHS received no comments on the notice of proposed rulemaking.
    DHS received three public comments on the system of records notice. 
Two of the public comments were related to an individual's immigration 
status and unrelated to the proposed rulemaking. The third comment was 
an individual's personal opinion on illegal immigration and unrelated 
to the proposed rulemaking.
    DHS will implement the rulemaking as proposed.

[[Page 63947]]

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:  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. 
Subpart B also issued under 5 U.S.C. 552a.

0
2. At the end of Appendix C to Part 5, Exemption of Record Systems 
under the Privacy Act, add the following new paragraph ``42'':

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

* * * * *
    42. The DHS/NPPD/US-VISIT--003 Technical Reconciliation Analysis 
Classification system of records (TRACS) consists of stand alone 
database and paper files that will be used by DHS and its 
components. This system of records will be used to perform a range 
of information management and analytic functions involving 
collecting, verifying, and resolving tracking of data primarily on 
individuals who are not United States citizens or legal permanent 
residents (LPRs). However, it will contain data on: (1.) U.S. 
citizens or LPRs who have a connection to the DHS mission (e.g., 
individuals who have submitted a visa application to the UK, or have 
made requests for a license or credential as part of a background 
check or security screening in connection with their hiring or 
retention, performance of a job function or the issuance of a 
license or credential for employment at DHS); (2.) U.S. citizens and 
LPRs who have an incidental connection to the DHS mission (e.g., 
individuals living at the same address as individuals who have 
remained in this country beyond their authorized stays); and (3.) 
individuals who have, over time, changed their status and became 
U.S. citizens or LPRs. The DHS/NPPD/US-VISIT--003 Technical 
Reconciliation Analysis Classification system of records is managed 
and maintained by the US-VISIT Program. The data contained in the 
DHS/NPPD/US-VISIT--003 Technical Reconciliation Analysis 
Classification system of records is primarily derived from DHS/NPPD/
U.S-VISIT--001 Arrival and Departure Information System (ADIS); DHS/
CBP--011 TECS; DHS/ICE--001 Student and Exchange Visitor Information 
System (SEVIS); DHS/ICE/CBP/USCIS--001--03 Enforcement Operational 
Immigration Records (ENFORCE/IDENT); DHS/ICE--011 Removable Alien 
Records System (RARS); DHS/USCIS--001 Alien File (A-File) and 
Central Index System (CIS); DHS/USCIS--007 Benefits Information 
System covering Computer Linked Application Information Management 
System 3 (Claims 3) and Computer Linked Application Information 
Management System 4 (Claims 4); DHS/USCIS Refugees, Asylum & Parole 
System (RAPS); and from the Department of State's Consolidated 
Consular Database (CCD). The DHS/NPPD/US-VISIT--003 Technical 
Reconciliation Analysis Classification system of records also 
contains data from web searches for addresses and phone numbers. 
This data is collected by, on behalf of, in support of, or in 
cooperation with DHS and its components. The Secretary of Homeland 
Security has exempted this system from the following provisions of 
the Privacy Act, subject to the limitations set forth in 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), 
(e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f); and (g) pursuant to 5 
U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security 
has exempted this system from the following provisions of the 
Privacy Act, subject to the limitations set forth in 5 U.S.C. 
552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) 
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5). 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 
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, to tamper with witnesses or 
evidence, and to avoid detection or apprehension, which would 
undermine the entire investigative process.
    (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, to 
tamper with witnesses or evidence, and to avoid detection or 
apprehension. Amendment of the records could interfere with 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 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 law enforcement, it is appropriate to retain 
all information that may aid in establishing patterns of unlawful 
activity.
    (d) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from 
the subject of an investigation would alert the subject to the 
nature or existence of an investigation, 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 law enforcement in 
that it could compromise investigations by: revealing the existence 
of an otherwise confidential investigation and thereby provide an 
opportunity for the subject of an investigation to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative efforts; reveal the identity of witnesses in 
investigations, thereby providing an opportunity for the subjects of 
the investigations or others to harass, intimidate, or otherwise 
interfere with the collection of evidence or other information from 
such witnesses; 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 (e)(4)(H) (Agency 
Requirements) because portions of this system are exempt from the 
individual access provisions of subsection (d) which exempts 
providing access because it could alert a subject to the nature or 
existence of an investigation, and thus there could be no procedures 
for that particular data. Procedures do exist for access for those 
portions of the system that are not exempted.
    (g) From subsection (e)(4)(I) (Agency Requirements) because 
providing such source information would impede enforcement or 
intelligence by compromising the nature or existence of a 
confidential investigation.
    (h) 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.
    (i) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' ability to obtain, serve, and 
issue subpoenas, warrants, and other law enforcement mechanisms that 
may be filed under seal, and could result in disclosure of 
investigative techniques, procedures and evidence.
    (j) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of 
subsection (d).
    (k) From subsection (g) to the extent that the system is exempt 
from other specific subsections of the Privacy Act.


[[Page 63948]]


    Dated: November 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-28913 Filed 12-3-09; 8:45 am]
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