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contains regulatory documents having general

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Rules and Regulations Federal Register

9085 

Vol. 75, No. 39 

Monday, March 1, 2010 

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, 

ICEPrivacy@dhs.gov; 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 

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9086 Federal Register / Vol. 75, No. 39 / Monday, March 1, 2010 / Rules and Regulations 

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. 

■ 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. Subpart B 

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

■ 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 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 

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] 

BILLING CODE 9111–28–P 

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