E9-28913. 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 ...

AGENCY:

Privacy Office, DHS.

ACTION:

Final rule.

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.

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: 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.

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.

Dated: November 23, 2009.

Mary Ellen Callahan,

Chief Privacy Officer, Department of Homeland Security.