[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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