E8-29843. Privacy Act of 1974: Implementation of Exemptions; DHS/CBP-009 Nonimmigrant Inspection System

AGENCY:

Privacy Office, Department of Homeland Security.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Homeland Security is amending its regulations to exempt portions of a system of records from certain provisions of the Privacy Act. Specifically, the Department proposes to exempt portions of the Nonimmigrant Inspection System from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

DATES:

Written comments must be submitted on or before January 20, 2009.

ADDRESSES:

You may submit comments, identified by docket number DHS-2008-0171 by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: [phone].
• Mail: Hugo Teufel III, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT:

For general questions please contact: Laurence E. Castelli (202-325-0280), Chief, Privacy Act Policy and Procedures Branch, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, Mint Annex, 1300 Pennsylvania Ave., NW., Washington, DC 20229. For privacy issues please contact: Hugo Teufel III (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), elsewhere in this edition of the Federal Register, published a Privacy Act system of records notice describing records in the Nonimmigrant Inspection System (NIIS). Pursuant to 6 U.S.C. 552(a)(1) DHS and Customs and Border Protection (CBP) have maintained the Nonimmigrant Information System (NIIS) in conformance with the terms of the previous NIIS SORN, 68 FR 5048.

As part of its efforts to streamline and consolidate its record systems, DHS is updating and reissuing a DHS/CBP system of records under the Privacy Act (5 U.S.C. 552a) to reflect CBP's current and future practices regarding the processing of foreign nationals entering the U.S. CBP inspects all persons applying for admission to the U.S. As part of this inspection process, CBP establishes the identity, nationality, and admissibility of persons crossing the border and may create a border crossing record, which would be covered by DHS/CBP-007 Border Crossing Information System of Records Notice (73 FR 43457 published on July 25, 2008), or additional CBP records, which would be covered by the TECS System of Records Notice (re-published concurrently with this notice) during this process. Similarly, CBP has authority to keep records of departures from the U.S.

In addition to information collected from the alien during the inspection process, CBP primarily uses two immigration forms to collect information from nonimmigrant aliens as they arrive in the U.S.: The I-94, Arrival/Departure Record and, for aliens applying for admission under the visa waiver program, the I-94W Nonimmigrant Visa Waiver Arrival/Departure Form. Separately, Canadian nationals, who travel to the U.S. as tourists or for business, and Mexican nationals, who possess a nonresident alien Mexican Border Crossing Card, are not required to complete an I-94 upon arrival, but their information will be maintained in this system. Additionally, DHS/CBP has been implementing an Electronic System for Travel Authorization (ESTA) to permit nationals of VWP countries to submit their biographic and admissibility information online in advance of their travel to the U.S. Applicants under this program will have access to their accounts so that they may check the status of their ESTA and make limited amendments. ESTA is covered by privacy documentation including a SORN published on June 10, 2008, 73 FR 32720.

No exemption shall be asserted with respect to information maintained in the system that is collected from a person's travel documents or submitted by a government computer system in support of a proffered travel document, if that person, or his or her agent, seeks access or amendment of such information.

This system, however, may contain records or information pertaining to the accounting of disclosures made from NIIS to other law enforcement agencies (Federal, State, Local, Foreign, International or Tribal) in accordance with the published routine uses and 5 U.S.C. 552a (b)(7). For the accounting of these disclosures only, in accordance with 5 U.S.C. 552a (j)(2), and (k)(2), DHS will claim the original exemptions for these records or information from subsection (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as necessary and appropriate to protect such information.

DHS needs these exemptions in order to protect information relating to law enforcement investigations from disclosure to subjects of investigations and others who could interfere with investigatory and law enforcement activities. Specifically, the exemptions are required to: Preclude subjects of investigations from frustrating the investigative process; avoid disclosure of investigative techniques; protect the identities and physical safety of confidential informants and of law enforcement personnel; ensure DHS's and other federal agencies' ability to obtain information from third parties and other sources; protect the privacy of third parties; and safeguard sensitive information.

Nonetheless, DHS will examine each request on a case-by-case basis, and, after conferring with the appropriate component or agency, may waive applicable exemptions in appropriate circumstances and where it would not appear to interfere with or adversely affect the law enforcement purposes of the systems from which the information is recompiled or in which it is contained.

Again, DHS will not assert any exemption with respect to information maintained in the system that is collected from a person and submitted by that person's air or vessel carrier, if that person, or his or her agent, seeks access or amendment of such information.

List of Subjects in 6 CFR Part 5

• Privacy
• Freedom of information

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

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.

2. At the end of Appendix C to Part 5, add the following new paragraph “14”:

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

* * * * *

14. DHS/CBP-009, Nonimmigrant Inspection System (NIIS). This system may contain records or information pertaining to the accounting of disclosures made from NIIS to other law enforcement and counterterrorism agencies (Federal, State, Local, Foreign, International or Tribal) in accordance with the published routine uses. For the accounting of these disclosures only, in accordance with 5 U.S.C. 552a (j)(2), and (k)(2), DHS will claim the original exemptions for these records or information from subsection (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as necessary and appropriate to protect such information. Further, no exemption shall be asserted with respect to biographical or travel information submitted by, and collected from, a person's travel documents or submitted from a government computer system to support or to validate those travel documents. After conferring with the appropriate component or agency, DHS may waive applicable exemptions in appropriate circumstances and where it would not appear to interfere with or adversely affect the law enforcement purposes of the systems from which the information is recompiled or in which it is contained. Exemptions from the above particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, when information in this system of records is recompiled or is created from information contained in other systems of records subject to exemptions for the following reasons:

(a) From subsection (c)(3) (Accounting for Disclosure) because making available to a record subject the accounting of disclosures from records concerning him or her would specifically reveal any investigative interest in the individual. Revealing this information could reasonably be expected to compromise ongoing efforts to investigate a violation of U.S. law, including investigations of a known or suspected terrorist, by notifying the record subject that he or she is under investigation. This information could also permit the record subject to take measures to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid or impede the investigation.

(b) From subsection (e)(8) (Notice on Individuals) 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 or law enforcement investigations to the fact of those investigations when not previously known.

(c) From subsection (g) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.

Dated: December 10, 2008.

Hugo Teufel III,

Chief Privacy Officer, Department of Homeland Security.