[Federal Register Volume 75, Number 39 (Monday, March 1, 2010)]
[Rules and Regulations]
[Pages 9085-9086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4160]



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 Rules and Regulations
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  Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules 
and Regulations  

[[Page 9085]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2010-0005]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security Immigration and Customs Enforcement--012 Visa 
Security Program Records

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

SUMMARY: Following a Notice of Proposed Rulemaking (NPRM) and public 
comment, this rule amends the Department of Homeland Security (DHS) 
Immigration and Customs Enforcement (ICE)'s regulations by exempting a 
new system of records from several provisions of the Privacy Act. The 
Visa Security Program Records system (DHS/ICE-012) includes records 
used as part of a visa vetting program known as the Visa Security 
Program Tracking System (VSPTS-Net) in support of Section 428 of the 
Homeland Security Act of 2002. Under the Visa Security Program, ICE 
conducts security reviews of visa applicants. DHS ICE is exempting DHS/
ICE-012 from provisions of the Privacy Act to the extent necessary to 
protect the integrity of the law enforcement information that may be 
included in the system of records.

DATES: Effective Date: This final rule is effective March 1, 2010.

FOR FURTHER INFORMATION CONTACT: For general questions and privacy 
issues, please contact: Lyn Rahilly (202-732-3300), Privacy Officer, 
U.S. Immigration and Customs Enforcement, [email protected]; or Mary 
Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, 
U.S. Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

Background

    The Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, governs the 
means by which the U.S. 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. See 5 U.S.C. 552a(a)(5).
    An individual may request access to records containing information 
about him or herself. 5 U.S.C. 552a(b), (d). However, the Privacy Act 
authorizes Government agencies to exempt systems of records from access 
by individuals under certain circumstances, such as where the access or 
disclosure of such information would impede national security or law 
enforcement efforts. Exemptions from Privacy Act provisions must be 
established by regulation. 5 U.S.C. 552a(j), (k).
    On September 30, 2009, DHS ICE published a system of records in the 
Federal Register (74 FR 50228) establishing a new Privacy Act system of 
records entitled Visa Security Program Records (DHS/ICE-012). The Visa 
Security Program Records system maintains records for the Visa Security 
Program Tracking System which carries out the requirement of section 
428 of the Homeland Security Act of 2002 and provides for DHS ICE's 
assumption of visa security reviews.
    In conjunction with the establishment and publication for the Visa 
Security Program Records system of records on September 30, 2009, DHS 
ICE initiated a proposed rulemaking in the Federal Register (74 FR 
50148) to exempt this system of records from a number of provisions of 
the Privacy Act because this system of records may contain law 
enforcement sensitive records as well as records of information 
recompiled from, or created from, information contained in other 
systems of records which are exempt from certain provisions of the 
Privacy Act. With the publication of this final rule, in accordance 
with 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2), DHS ICE is exempting the 
Visa Security Program Records system from the following provisions of 
the Privacy Act: 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), 
(e)(3), (e)(4)(G), and (e)(4)(H), (e)(5), and (e)(8); (f); and (g).

Discussion of Comments

    DHS ICE received three comments on the proposed rule from the 
public. Some of the comments were in support of the exemptions claimed 
by DHS ICE. One comment dealt with the ability to access and correct 
personal information contained within the Visa Security Program 
Tracking System.
    One commenter raised the concern that individuals who are the 
subjects of visa security reviews may not be able to access and amend 
their own records due to the proposed exemption of the Visa Security 
Program Records from 5 U.S.C. 552a(d), which grants the right to 
individuals to access and amend their records. The commenter 
acknowledges that providing such access and amendment rights during a 
visa review could disrupt the visa security process, but questions 
whether it is necessary to prohibit access and amendment after the visa 
review has concluded.
    DHS ICE recognizes that although there is a need for the exemptions 
provided for in this document, there may be instances where such 
exemptions can be waived. There may be times when the Privacy Act 
exemptions claimed here are not necessary to further a governmental 
interest. In appropriate circumstances, where compliance would not 
appear to interfere with, or adversely affect, the law enforcement and 
national security purposes of the system and the overall law 
enforcement and security process, the applicable exemptions may be 
waived. In the case of access and amendment requests from the Visa 
Security Program Records system, each access request will be evaluated 
on a case-by-case basis and if no harm to law enforcement interests or 
national security would ensue from disclosure, the exemption will be 
waived and the records (or portions of the records) will be disclosed.
    In addition, as discussed in the Visa Security Program Tracking 
System Privacy Impact Assessment, information in the Visa Security 
Program Records system that consists of or is solely derived from a 
State Department visa record is subject to statutory

[[Page 9086]]

confidentiality requirements pursuant to the Immigration and 
Nationality Act Section 222(f). Section 222(f) prohibits the visa 
applicant from accessing or amending certain information in their visa 
records, including visa records that have been reincorporated into this 
system of records.
    The two remaining commenters expressed support of the exemptions 
proposed for the Visa Security Program Records system or for the Visa 
Security Program as a whole.

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


0
2. At the end of Appendix C to Part 5, add the following new paragraph 
47 to read as follows:

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

* * * * *
    47. The Visa Security Program Records (VSPR) system of records 
consists of electronic and paper records and will be used by the 
Department of Homeland Security (DHS) U.S. Immigration and Customs 
Enforcement (ICE). VSPR consists of information created in support 
of the Visa Security Program, the purpose of which is to identify 
persons who may be ineligible for a U.S. visa because of criminal 
history, terrorism association, or other factors and convey that 
information to the State Department, which decides whether to issue 
the visa. VSPR contains records on visa applicants for whom a visa 
security review is conducted. VSPR contains information that is 
collected by, on behalf of, in support of, or in cooperation with 
DHS and its components and may contain personally identifiable 
information collected by other Federal, State, local, Tribal, 
foreign, or international government agencies. Pursuant to exemption 
5 U.S.C. 552a(j)(2) of the Privacy Act, portions of this system are 
exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), 
(e)(3), (e)(4)(G), and (e)(4)(H), (e)(5) and (e)(8); (f); and (g). 
Pursuant to 5 U.S.C. 552a(k)(1) and (k)(2), this system is exempt 
from the following provisions of the Privacy Act, subject to the 
limitations set forth in those subsections: 5 U.S.C. 552a(c)(3), 
(d), (e)(1), (e)(4)(G), (e)(4)(H), and (f). 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 
individual to the existence of an investigation in the form of a 
visa security review predicated on classified, national security, 
law enforcement, foreign government, or other sensitive information. 
Disclosure of the accounting would therefore present a serious 
impediment to ICE's Visa Security Program, immigration 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, thereby undermining the 
entire investigative process.
    (b) From subsection (d) (Access to Records) because access to 
the records contained in this system of records could alert the 
individual to the existence of an investigation in the form of a 
visa security review predicated on classified, national security, 
law enforcement, foreign government, or other sensitive information. 
Revealing the existence of an otherwise confidential investigation 
could also provide the visa applicant an opportunity to conceal 
adverse information or take other actions that could thwart 
investigative efforts; and reveal the identity of other individuals 
with information pertinent to the visa security review, thereby 
providing an opportunity for the applicant to interfere with the 
collection of adverse or other relevant information from such 
individuals. Access to the records would therefore present a serious 
impediment to the enforcement of Federal immigration laws, law 
enforcement efforts and/or efforts to preserve national security. 
Amendment of the records could interfere with ICE's 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 classified and other 
security-sensitive information that could be detrimental to national 
or homeland security.
    (c) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations of visa 
applications, 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 interest 
of effective enforcement of Federal immigration laws, it is 
appropriate to retain all information that may be relevant to the 
determination whether an individual is eligible for a U.S. visa.
    (d) From subsection (e)(2) (Collection of Information From 
Individuals) because requiring that information be collected from 
the visa applicant would alert the subject to the fact of an 
investigation in the form of a visa security review, and to the 
existence of adverse information about the individual, 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 immigration 
enforcement activities in that it could compromise investigations 
by: Revealing the existence of an otherwise confidential 
investigation and thereby provide an opportunity for the visa 
applicant to conceal adverse information, or take other actions that 
could thwart investigative efforts; Reveal the identity of other 
individuals with information pertinent to the visa security review, 
thereby providing an opportunity for the applicant to interfere with 
the collection of adverse or other relevant information from such 
individuals; 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 (H) (Agency Requirements), 
and (f) (Agency Rules) because portions of this system are exempt 
from the individual access provisions of subsection (d) for the 
reasons noted above, and therefore DHS is not required to establish 
requirements, rules, or procedures with respect to such access. 
Providing notice to individuals with respect to existence of records 
pertaining to them in the system of records or otherwise setting up 
procedures pursuant to which individuals may access and view records 
pertaining to themselves in the system would undermine investigative 
and immigration enforcement efforts as described above.
    (g) 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.
    (h) From subsection (e)(8) 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, law enforcement, 
or intelligence investigations to the fact of those investigations 
when not previously known.
    (i) From subsection (g) to the extent that the system is exempt 
from other specific subsections of the Privacy Act relating to 
individuals' rights to access and amend their records contained in 
the system. Therefore DHS is not required to establish rules or 
procedures pursuant to which individuals may seek a civil remedy for 
the agency's: Refusal to amend a record; refusal to comply with a 
request for access to records; failure to maintain accurate, 
relevant, timely and complete records; or failure to otherwise 
comply with an individual's right to access or amend records.

    Dated: February 4, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2010-4160 Filed 2-26-10; 8:45 am]
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