[Federal Register Volume 86, Number 233 (Wednesday, December 8, 2021)]
[Proposed Rules]
[Pages 69587-69589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26478]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / 
Proposed Rules  

[[Page 69587]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. ICEB-2020-0010]


Privacy Act of 1974: Implementation of Exemptions; U.S. 
Department of Homeland Security U.S. Immigrations and Customs 
Enforcement, DHS/ICE-001 Student and Exchange Visitor Program System of 
Records, Formerly Known as the Student and Exchange Visitor Information 
System of Records

AGENCY: U.S. Department of Homeland Security, U.S. Immigration and 
Customs Enforcement.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The U.S. Department of Homeland Security (DHS) is giving 
concurrent notice of an updated and reissued system of records pursuant 
to the Privacy Act of 1974 for the ``DHS/U.S. Immigrations and Customs 
Enforcement (ICE)-001 Student and Exchange Visitor Program System of 
Records'' and this proposed rulemaking. In this proposed rulemaking, 
the Department proposes 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.

DATES: Comments must be received on or before January 7, 2022.

ADDRESSES: You may submit comments, identified by docket number ICEB-
2020-0010, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-343-4010.
     Mail: Lynn Parker Dupree, Chief Privacy Officer, Privacy 
Office, U.S. Department of Homeland Security, Washington, DC 20528-
0655.
    Instructions: All submissions received must include the agency name 
and docket number ICEB-2020-0010. All comments received will be posted 
without change to https://www.regulations.gov/, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov/.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Jordan Holz, (202) 732-3300, Privacy Officer, [email protected], 
U.S. Immigration and Customs Enforcement, 500 12th SW, Washington, DC 
20536. For privacy issues please contact: Lynn Parker Dupree, (202) 
343-1717, Chief Privacy Officer, [email protected], Privacy Office, 
U.S. Department of Homeland Security, Washington, DC 20528-0655.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the U.S. 
Department of Homeland Security (DHS), U.S. Immigration and Customs 
Enforcement (ICE) proposes to modify, rename, and reissue a current DHS 
system of records notice (SORN) titled, ``DHS/ICE-001 Student and 
Exchange Visitor Information System (SEVIS),'' 75 FR 412 (January 5, 
2010). ICE had previously reissued a Final Rule for this SORN on 
October 23, 2008, published at 73 FR 63057. As a result of the 
modifications to this SORN, DHS/ICE is proposing to issue this new 
rule.
    The DHS/ICE update to SEVIS includes several changes. First, the 
system of records is being renamed ``Student and Exchange Visitor 
Program (SEVP)'' to better align with the purpose of the program. The 
system of records contains records on nonimmigrant students and 
exchange visitors and their dependents admitted to the United States 
under the F, M, or J class of admission (hereinafter, ``F/M/J 
nonimmigrants''), and the schools and program sponsors that enroll F/M 
nonimmigrants and host J nonimmigrants in the United States, to ensure 
compliance with immigration laws and regulations and to ensure such 
persons' nonimmigrant status is maintained. In addition, this system of 
records contains records on the certification of academic and 
vocational schools to authorize the enrollment of F and M nonimmigrant 
students based on federal regulations, and provides guidance and 
training to school officials about the SEVP certification requirements 
to which schools must adhere to and the requirements that nonimmigrant 
students must follow to maintain their nonimmigrant status.
    Second, DHS is clarifying the types of individuals and entities 
contained in this expanded system of records. Some items in the 
categories of individuals section have been reorganized and edited to 
more clearly identify the individuals, as well as expanded to include 
new categories of individuals, such as employers, financial support 
providers, government bodies and personnel, host families, members of 
the public, school employees, school partners, and school and exchange 
visitor program officials.
    Third, DHS is modifying and expanding the categories of records 
section to better identify the types of information contained in the 
system of records. The new categories of records include education, 
employment, financial, travel, immigration-related information, school, 
program sponsor, case-related information, auditing and training, 
reporting, and inquiries and data corrections.
    Fourth, DHS is modifying Routine Use E and adding Routine Use F to 
conform to Office of Management and Budget (OMB) Memorandum M-17-12, 
``Preparing for and Responding to a Breach of Personally Identifiable 
Information'' (Jan. 3, 2017). All the following routine uses are being 
renumbered to account for the additional routine uses.
    Finally, DHS is proposing to eliminate several routine uses, modify 
several routine uses, and add two new routine uses that would allow ICE 
to share information from the SEVP system of records with the specified 
recipients for the specified purpose. Below is a summary of those 
routine uses and their corresponding letter.
    (J) Routine Use J is being updated to include disclosures to 
parties to an administrative proceeding where DHS has an interest in 
the outcome. This modification eliminates the need for two routine uses 
previously identified as Routine Uses K and L, and subsequent routine 
uses are being relettered to account for this change.
    (O) Existing Routine Use P is being updated and relettered as 
Routine Use O

[[Page 69588]]

to clarify that information may be shared about nonimmigrants between 
certified schools or programs as part of the transfer process from one 
school or program to another.
    (R) Existing Routine Use S is being updated to be consistent with 
the DHS standard routine use for technology and is now Routine Use R. 
The modification eliminates the need for one routine use previously 
identified as Routine Use T, and subsequent routine uses are being re-
lettered to account for this change.
    (V) Routine Use V is being added to permit sharing identifying 
information with accrediting agencies, recognized by the Department of 
Education (ED), to facilitate the inspection and validation of schools 
and exchange visitor programs in adherence to laws and regulations, and 
subsequent routine uses are being re-lettered to account for this 
additional routine use.
    (W) Routine Use W is being added to clarify the sharing and 
disclosure of information to federal, state, local, and other 
government and public agencies, including foreign or international 
agencies when the information is relevant and necessary to DHS or a 
requesting agency's decision concerning the hiring or retention of an 
individual, or the issuance, grant, renewal, suspension or revocation 
of a security clearance, license, contract, grant or other benefit.
    Information in the SEVP system of records may be shared with other 
DHS Components that have a need to know the information to carry out 
their national security, law enforcement, immigration, intelligence, or 
other homeland security functions. In addition, DHS/ICE may share 
information with appropriate federal, state, local, tribal, 
territorial, foreign, or international government agencies consistent 
with the routine uses set forth in this SORN. This modified system of 
records will be included in DHS's inventory of record systems.

II. Privacy Act

    The Privacy Act embodies Fair Information Practice Principles in a 
statutory framework that governs the means by which federal government 
agencies collect, maintain, use, and disseminate individuals' records. 
The Privacy Act applies to information that is maintained in a ``system 
of records.'' A system of records is a group of records under the 
control of an agency from which information is retrieved by the name of 
an individual or by some identifying number, symbol, or other matched 
identifiers assigned to the individual. In the Privacy Act, an 
individual is defined to encompass U.S. citizens and lawful permanent 
residents. Further, those persons who do not currently fall under the 
definition of individuals may naturalize or adjust status, thus 
becoming Privacy Act-covered individuals, over the course of this 
system's records retention schedule.
    Additionally, the Judicial Redress Act (JRA) provides covered 
persons with a statutory right to make requests for access and 
amendment to covered records, as defined by the JRA, along with 
judicial review for denials of such requests. The JRA also prohibits 
disclosures of covered records, except as otherwise permitted by the 
Privacy Act.
    The Privacy Act allows government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/ICE-001 SEVP System of Records. Some information in the 
DHS/ICE-001 SEVP System of Records relates to official DHS national 
security, law enforcement, immigration, and intelligence activities. 
These exemptions are needed to protect information relating to DHS 
activities from disclosure to subjects or others related to these 
activities. Specifically, the exemptions are required to preclude 
subjects of these activities from frustrating these processes; to avoid 
disclosure of activity techniques; to ensure DHS's ability to obtain 
information from third parties and other sources; to protect the 
privacy of third parties; and to safeguard classified information. 
Disclosure of information to the subject of the inquiry could also 
permit the subject to avoid detection or apprehension.
    In appropriate circumstances, when compliance would not appear to 
interfere with or adversely affect the law enforcement purposes of this 
system and the overall law enforcement process, the applicable 
exemptions may be waived on a case-by-case basis.
    A notice of System of Records for DHS/ICE-001 SEVP is also 
published in this issue of the Federal Register.

List of Subjects in 6 CFR Part 5

    Freedom of information, Privacy.

    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

0
1. The authority citation for Part 5 continues to read as follows:

    Authority:  6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 5 U.S.C. 301.

0
2. In Appendix C to Part 5, revise paragraph 10 to read as follows:

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

* * * * *
    10. The DHS/ICE-001 Student and Exchange Visitor Program System 
of Records consists of electronic and paper records and will be used 
by DHS and its components. The DHS/ICE-001 Student and Exchange 
Visitor Program System of Records is a repository of information 
held by DHS in connection with collecting and maintaining pertinent 
information on nonimmigrant students and exchange visitors, schools 
and exchange visitor programs, school officials and exchange visitor 
sponsors that host exchange visitors while in the United States. In 
addition, SEVP maintains and collects information pertinent to the 
certification and oversight of academic and vocational schools 
(U.S.-based schools) that seek to enroll F and M nonimmigrant 
students to ensure compliance with federal laws and regulations. 
Failure to comply will result in the withdrawal of the school's 
certification, prohibiting the school from enrolling F and M 
nonimmigrant students.
    This system of records permits DHS to monitor compliance by 
these persons with the terms of their admission to the United 
States, and assists DHS with its several and varied missions and 
functions, including, but not limited to, the enforcement of civil 
and criminal laws, and the investigations, inquiries, and 
proceedings thereunder, and national security and intelligence 
activities. The DHS/ICE-001 Student and Exchange Visitor Program 
System of Records 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.
    The Secretary of Homeland Security, pursuant to 5 U.S.C. 
552a(j)(2) has exempted this system from the following provisions of 
the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f); and 
(g)(1). Additionally, the Secretary of Homeland Security, pursuant 
to 5 U.S.C. 552a(k)(1) and (k)(2), has exempted this system from the 
following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f).
    Where a record received from another system has been exempted in 
that source system under 5 U.S.C. 552a(j)(2), DHS will claim the 
same exemptions for those records that are claimed for the original 
primary systems of records from which they originated and claims any 
additional exemptions set forth here.
    Exemptions from these particular subsections are justified, on a 
case-by-case

[[Page 69589]]

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 that 
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 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. When an investigation 
has been completed, information on disclosures made may continue to 
be exempted if the fact that an investigation occurred remains 
sensitive after completion.
    (b) From subsection (d) (Access and Amendment 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 that 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 unreasonable administrative burden by requiring 
investigations to be continually 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 interest 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 the investigation, thereby interfering with 
that investigation and related law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information could impede law enforcement by 
compromising the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G) through (I) (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 the 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 efforts and reveal the identities of witnesses, 
potential witnesses, and confidential informants.
    (g) From subsection (e)(5) (Collection of Information) because, 
with 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 subsection (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) (Notice on Individuals) because 
compliance would interfere with DHS's ability to obtain, serve, and 
issue subpoenas, warrants, and other law enforcement mechanisms that 
may be filed under seal and could result in the disclosure of 
investigative techniques, procedures, and evidence.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.
* * * * *

Lynn Parker Dupree,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2021-26478 Filed 12-7-21; 8:45 am]
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