[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Pages 45077-45078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20778]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0058]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Customs and Border Protection--016 Nonimmigrant 
Information System of Records

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend

[[Page 45078]]

its regulations to exempt portions of a Department of Homeland Security 
U.S. Customs and Border Protection system of records entitled the 
``Department of Homeland Security U.S. Customs and Border Protection--
016 Nonimmigrant Information System of Records'' from certain 
provisions of the Privacy Act. Specifically, the Department exempts 
portions of the Department of Homeland Security U.S. Customs and Border 
Protection--016 Nonimmigrant Information system from one or more 
provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements.
    Additionally, two administrative errors were made at the time of 
publishing and are corrected through this final rule. Two systems of 
records notices were issued the same system of records notice number. 
Both U.S. Customs and Border Protection system of records notices 
Nonimmigrant Information system of records and Electronic System for 
Travel Authorization system of records were published with number 009. 
Electronic System for Travel Authorization system of records will 
remain with number 009 and Nonimmigrant Information system of records 
will be reassigned number 016. Second, the notice of proposed 
rulemaking for the Nonimmigrant Information system of records was 
incorrectly published with the name ``Nonimmigrant Inspection System.'' 
The name of the proposed rule and this final rule will be Nonimmigrant 
Information System.

DATES: Effective Date: This final rule is effective August 31, 2009.

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, Office of 
International Trade, Regulations & Rulings, Mint Annex, 799 Ninth 
Street, NW., Washington, DC 20001-4501. For privacy issues 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 77549, December 19, 
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/U.S. Customs and Border Protection (CBP)--016 Nonimmigrant 
Information System. The DHS/CBP--016 Nonimmigrant Information system of 
records notice was published concurrently in the Federal Register, 73 
FR 77739, December 19, 2008, and comments were invited on both the 
notice of proposed rulemaking and system of records notice. No comments 
were received.

Public Comments

    DHS received no comments on the notice of proposed rulemaking or 
the system of records notice. DHS will implement the rulemaking as 
proposed.

List of Subjects in 6 CFR Part 5

    Privacy, Freedom of information.

0
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

0
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.

0
2. Add at the end of Appendix C to Part 5, Exemption of Record Systems 
under the Privacy Act, the following new paragraph ``27'':

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

* * * * *
    27. The DHS/CBP-009 Nonimmigrant Information system of records 
consists of electronic and paper records and will be used by DHS and 
it's Components. The DHS/CBP-009 Nonimmigrant Information System is 
a repository of information held by DHS in connection with its 
several and varied missions and functions, including, but not 
limited to: The enforcement of civil and criminal laws; 
Investigations, inquiries, and proceedings thereunder; and national 
security and intelligence activities. The DHS/CBP-009 Nonimmigrant 
Information System 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. This system may contain records 
or information pertaining to the accounting of disclosures made from 
the Nonimmigrant Information System to other law enforcement and 
counterterrorism agencies (Federal, State, Local, Foreign, 
International or Tribal) in accordance with the published routine 
uses. 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. 522(c)(3), (e) (8), and (g) of the 
Privacy Act of 1974, as amended, as necessary and appropriate to 
protect accounting of these disclosures only, pursuant to 5 U.S.C. 
552a (j)(2), and (k)(2). 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: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-20778 Filed 8-28-09; 8:45 am]
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