Privacy Act of 1974: Implementation of Exemptions; U.S. Immigration and Customs Enforcement-012 Visa Security Program Records (VSPR), 50148-50150 [E9-23523]
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50148
Proposed Rules
Federal Register
Vol. 74, No. 188
Wednesday, September 30, 2009
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.
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS–2009–0105]
Privacy Act of 1974: Implementation of
Exemptions; U.S. Immigration and
Customs Enforcement–012 Visa
Security Program Records (VSPR)
Privacy Office, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS
SUMMARY: The Department of Homeland
Security (DHS), U.S. Immigration and
Customs Enforcement, is giving
concurrent notice of a new system of
records pursuant to the Privacy Act of
1974 for the U.S. Immigration and
Customs Enforcement Visa Security
Program Records (VSPR) 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 October 30, 2009.
ADDRESSES: You may submit comments,
identified by DHS–2009–0105 by one of
the following methods:
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 703–483–2999.
• Mail: Mary Ellen Callahan, Chief
Privacy Officer, Privacy Office, U.S.
Department of Homeland Security,
Washington, DC 20528.
• Instructions: All submissions
received must include the agency name
and docket number for this rulemaking.
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
VerDate Nov<24>2008
14:47 Sep 29, 2009
Jkt 217001
comments received go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lyn
Rahilly, (202–732–3300), Privacy
Officer, U.S. Immigration and Customs
Enforcement, 500 12th Street, SW.,
Washington, DC 20536; or Mary Ellen
Callahan, (703–235–0780), Chief Privacy
Officer, Privacy Office, U.S. Department
of Homeland Security, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
I. Background
The Visa Security Program Records
(VSPR) system of records is owned and
maintained by the ICE Office of
International Affairs (OIA). It consists of
paper and electronic records 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. The Visa Security
Program Tracking System (VSPTS–Net)
is a new OIA application scheduled to
deploy in September 2009 that supports
the management of ICE’s Visa Security
Program. ICE Special Agents use
VSPTS–Net to record, track, and manage
all visa security reviews performed by
ICE. The VSPR system of records
describes records maintained in
VSPTS–Net and associated paper
records.
In support of Section 428 of the
Homeland Security Act of 2002, ICE
deploys agents to U.S. embassies and
consulates (‘‘consular posts’’) in highrisk areas worldwide to conduct
security reviews of visa applications.
ICE agents assigned to the Visa Security
Program examine visa applications,
initiate investigations of applicants who
may be ineligible for a visa, coordinate
with other law enforcement entities, and
provide advice and training to the State
Department staff. Through its Visa
Security Program, ICE also participates
in the Security Advisory Opinion (SAO)
process, which is a U.S. Government
mechanism to coordinate third-agency
checks on visa applicants about whom
the State Department has securityrelated concerns. Upon request from the
State Department, ICE provides
information from DHS record systems
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Fmt 4702
Sfmt 4702
about visa applicants who are selected
to undergo the SAO process. The State
Department in turn provides the results
of SAO checks to consular officers to aid
in adjudicating visa applications. Like
the ICE Special Agents located at
consular posts abroad, ICE agents and
analysts supporting SAO operations
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.
VSPTS–Net will be used to support
the Visa Security Program activities
described above by recording, tracking,
and managing the SAOs and visa
security reviews and documenting the
results that are communicated to the
State Department. VSPTS–Net will
provide ICE agents with an intranetbased application that manages the
workflow associated with visa security
reviews and will provide the necessary
analytical, reporting and data storage
capabilities. VSPTS–Net will also allow
users (ICE employees and contractors) to
records relevant visa application data,
derogatory information about
applicants, visa recommendation data. It
also supports the generation of
performance metrics for the Visa
Security program as a whole.
Ultimately, the system helps the Visa
Security Program and the State
Department prevent known and
suspected terrorists, criminals, and
other ineligible persons from obtaining
U.S. visas. A PIA was conducted on
VSPTS–Net because it is a new system
that will maintain PII information. The
VSPTS–Net PIA is available on the
Department of Homeland Security
(DHS) Privacy Office Web site at
https://www.dhs.gov/privacy.
The DHS/ICE–012 VSPR system of
records will collect, use, disseminate,
and maintain PII on persons who apply
for a visa and undergo a visa security
review. This collection of this
information is necessary for ICE to
conduct visa security reviews and to
provide the State Department with a
visa recommendation and/or
information that is relevant to the
applicant’s eligibility for a visa under
Federal law.
Consistent with DHS’s information
sharing mission, information stored in
the VSPR system of records may be
shared with other DHS components, as
E:\FR\FM\30SEP1.SGM
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Federal Register / Vol. 74, No. 188 / Wednesday, September 30, 2009 / Proposed Rules
CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS
well as appropriate Federal, State, local,
Tribal, foreign, or international
government agencies. This sharing will
only take place after DHS determines
that the receiving component or agency
has a need-to-know the information to
carry out national security, law
enforcement, immigration, intelligence,
or other functions consistent with the
routine uses set forth in the VSPR
system of records notice, also published
in this issue of the Federal Register.
II. Privacy Act
In this notice of proposed rulemaking,
DHS now is proposing to exempt DHS/
ICE–012 VSPR, in part, from certain
provisions of the Privacy Act. The
Privacy Act embodies fair information
principles in a statutory framework
governing the means by which the
United States 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. Individuals may request
their own records that are maintained in
a system of records in the possession or
under the control of DHS by complying
with DHS Privacy Act regulations, 6
CFR part 5.
The Privacy Act requires each agency
to publish in the Federal Register a
description of the type and character of
each system of records that the agency
maintains, and the routine uses that are
contained in each system in order to
make agency recordkeeping practices
transparent, to notify individuals
regarding the uses to which personally
identifiable information is put, and to
assist individuals in finding such files
within the agency. The Privacy Act also
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 VSPR. Some information in VSPR
relates to official DHS national security,
law enforcement, and intelligence
activities. These exemptions are needed
to protect information relating to DHS
activities from disclosure to subjects of
inquiry or others related to these
activities. Specifically, the exemptions
are required to preclude subjects of
these activities from frustrating these
VerDate Nov<24>2008
14:47 Sep 29, 2009
Jkt 217001
processes; to avoid disclosure of law
enforcement sensitive information and
investigative techniques; to protect the
identities and physical safety of
confidential informants and of border
management and law enforcement
personnel; 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 frustrate
the purpose of the visa review process
or to avoid detection or apprehension.
The exemptions proposed here are
standard law enforcement and national
security exemptions exercised by a large
number of Federal law enforcement and
intelligence agencies. In appropriate
circumstances, where 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 the
Department’s VSPR system 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 amends 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: 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.
2. At the end of Appendix C to Part
5, add the following new paragraph
‘‘41’’ to read as follows:
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
41. 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 (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
PO 00000
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Sfmt 4702
50149
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-bycase 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
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CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS
50150
Federal Register / Vol. 74, No. 188 / Wednesday, September 30, 2009 / Proposed Rules
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 securitysensitive 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 interests 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
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14:47 Sep 29, 2009
Jkt 217001
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: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. E9–23523 Filed 9–29–09; 8:45 am]
BILLING CODE 9111–28–P
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DEPARTMENT OF COMMERCE
Bureau of Economic Analysis
15 CFR Part 806
[Docket No. 09013008909096–01]
RIN 0691–AA71
Direct Investment Surveys: BE–10,
2009 Benchmark Survey of U.S. Direct
Investment Abroad
AGENCY: Bureau of Economic Analysis,
Commerce.
ACTION: Notice of proposed rulemaking.
SUMMARY: This proposed rule would
amend regulations of the Bureau of
Economic Analysis (BEA), Department
of Commerce, to set forth the reporting
requirements for the 2009 BE–10,
Benchmark Survey of U.S. Direct
Investment Abroad. The benchmark
survey covers the U.S. direct investment
abroad universe, and is BEA’s most
comprehensive survey of such
investment in terms of subject matter.
Benchmark surveys are conducted every
5 years. The proposed changes for the
2009 benchmark survey include changes
in form design and reporting criteria to
simplify the forms and improve
response rates and changes that would
reduce detail collected while
considering the current needs of data
users and respondent burden. Some of
the items that would no longer be
collected are those that are now
collected on BEA’s surveys of
international services.
DATES: Comments on this proposed rule
will receive consideration if submitted
in writing on or before 5 p.m. November
30, 2009.
ADDRESSES: You may submit comments,
identified by RIN 0691–AA71, and
referencing the agency name (Bureau of
Economic Analysis), by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
For agency, select ‘‘Commerce
Department—all.’’
• E-mail: David.Galler@bea.gov.
• Fax: Office of the Chief, Direct
Investment Division, (202) 606–5318.
• Mail: Office of the Chief, Direct
Investment Division, U.S. Department of
Commerce, Bureau of Economic
Analysis, BE–50, Washington, DC
20230.
• Hand Delivery/Courier: Office of the
Chief, Direct Investment Division, U.S.
Department of Commerce, Bureau of
Economic Analysis, BE–50, Shipping
and Receiving, Section M100, 1441 L
Street, NW., Washington, DC 20005.
E:\FR\FM\30SEP1.SGM
30SEP1
]]>Agencies
[Federal Register Volume 74, Number 188 (Wednesday, September 30, 2009)]
[Proposed Rules]
[Pages 50148-50150]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-23523]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
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.
========================================================================
Federal Register / Vol. 74, No. 188 / Wednesday, September 30, 2009 /
Proposed Rules
[[Page 50148]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0105]
Privacy Act of 1974: Implementation of Exemptions; U.S.
Immigration and Customs Enforcement-012 Visa Security Program Records
(VSPR)
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS), U.S. Immigration
and Customs Enforcement, is giving concurrent notice of a new system of
records pursuant to the Privacy Act of 1974 for the U.S. Immigration
and Customs Enforcement Visa Security Program Records (VSPR) 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 October 30, 2009.
ADDRESSES: You may submit comments, identified by DHS-2009-0105 by one
of the following methods:
Federal e-Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 703-483-2999.
Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy
Office, U.S. Department of Homeland Security, Washington, DC 20528.
Instructions: All submissions received must include the
agency name and docket number for this rulemaking. 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: Lyn Rahilly, (202-732-3300), Privacy
Officer, U.S. Immigration and Customs Enforcement, 500 12th Street,
SW., Washington, DC 20536; or Mary Ellen Callahan, (703-235-0780),
Chief Privacy Officer, Privacy Office, U.S. Department of Homeland
Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The Visa Security Program Records (VSPR) system of records is owned
and maintained by the ICE Office of International Affairs (OIA). It
consists of paper and electronic records 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. The Visa Security Program Tracking System (VSPTS-Net) is a
new OIA application scheduled to deploy in September 2009 that supports
the management of ICE's Visa Security Program. ICE Special Agents use
VSPTS-Net to record, track, and manage all visa security reviews
performed by ICE. The VSPR system of records describes records
maintained in VSPTS-Net and associated paper records.
In support of Section 428 of the Homeland Security Act of 2002, ICE
deploys agents to U.S. embassies and consulates (``consular posts'') in
high-risk areas worldwide to conduct security reviews of visa
applications. ICE agents assigned to the Visa Security Program examine
visa applications, initiate investigations of applicants who may be
ineligible for a visa, coordinate with other law enforcement entities,
and provide advice and training to the State Department staff. Through
its Visa Security Program, ICE also participates in the Security
Advisory Opinion (SAO) process, which is a U.S. Government mechanism to
coordinate third-agency checks on visa applicants about whom the State
Department has security-related concerns. Upon request from the State
Department, ICE provides information from DHS record systems about visa
applicants who are selected to undergo the SAO process. The State
Department in turn provides the results of SAO checks to consular
officers to aid in adjudicating visa applications. Like the ICE Special
Agents located at consular posts abroad, ICE agents and analysts
supporting SAO operations 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.
VSPTS-Net will be used to support the Visa Security Program
activities described above by recording, tracking, and managing the
SAOs and visa security reviews and documenting the results that are
communicated to the State Department. VSPTS-Net will provide ICE agents
with an intranet-based application that manages the workflow associated
with visa security reviews and will provide the necessary analytical,
reporting and data storage capabilities. VSPTS-Net will also allow
users (ICE employees and contractors) to records relevant visa
application data, derogatory information about applicants, visa
recommendation data. It also supports the generation of performance
metrics for the Visa Security program as a whole. Ultimately, the
system helps the Visa Security Program and the State Department prevent
known and suspected terrorists, criminals, and other ineligible persons
from obtaining U.S. visas. A PIA was conducted on VSPTS-Net because it
is a new system that will maintain PII information. The VSPTS-Net PIA
is available on the Department of Homeland Security (DHS) Privacy
Office Web site at https://www.dhs.gov/privacy.
The DHS/ICE-012 VSPR system of records will collect, use,
disseminate, and maintain PII on persons who apply for a visa and
undergo a visa security review. This collection of this information is
necessary for ICE to conduct visa security reviews and to provide the
State Department with a visa recommendation and/or information that is
relevant to the applicant's eligibility for a visa under Federal law.
Consistent with DHS's information sharing mission, information
stored in the VSPR system of records may be shared with other DHS
components, as
[[Page 50149]]
well as appropriate Federal, State, local, Tribal, foreign, or
international government agencies. This sharing will only take place
after DHS determines that the receiving component or agency has a need-
to-know the information to carry out national security, law
enforcement, immigration, intelligence, or other functions consistent
with the routine uses set forth in the VSPR system of records notice,
also published in this issue of the Federal Register.
II. Privacy Act
In this notice of proposed rulemaking, DHS now is proposing to
exempt DHS/ICE-012 VSPR, in part, from certain provisions of the
Privacy Act. The Privacy Act embodies fair information principles in a
statutory framework governing the means by which the United States
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. Individuals may request their own records that are
maintained in a system of records in the possession or under the
control of DHS by complying with DHS Privacy Act regulations, 6 CFR
part 5.
The Privacy Act requires each agency to publish in the Federal
Register a description of the type and character of each system of
records that the agency maintains, and the routine uses that are
contained in each system in order to make agency recordkeeping
practices transparent, to notify individuals regarding the uses to
which personally identifiable information is put, and to assist
individuals in finding such files within the agency. The Privacy Act
also 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 VSPR. Some information in VSPR relates to official DHS national
security, law enforcement, and intelligence activities. These
exemptions are needed to protect information relating to DHS activities
from disclosure to subjects of inquiry 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 law enforcement sensitive information and investigative
techniques; to protect the identities and physical safety of
confidential informants and of border management and law enforcement
personnel; 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 frustrate the
purpose of the visa review process or to avoid detection or
apprehension.
The exemptions proposed here are standard law enforcement and
national security exemptions exercised by a large number of Federal law
enforcement and intelligence agencies. In appropriate circumstances,
where 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 the Department's VSPR system 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 amends 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: 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.
2. At the end of Appendix C to Part 5, add the following new
paragraph ``41'' to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
41. 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
(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
[[Page 50150]]
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 interests 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: September 23, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-23523 Filed 9-29-09; 8:45 am]
BILLING CODE 9111-28-P
