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.

Proposed Rules Federal Register

50148 

Vol. 74, No. 188 

Wednesday, September 30, 2009 

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: 

http://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 http:// 

www.regulations.gov, including any 

personal information provided. 

• Docket: For access to the docket to 

read background documents or 

comments received go to http:// 

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 

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 

http://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 


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Federal Register / Vol. 74, No. 188 / Wednesday, September 30, 2009 / Proposed Rules 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-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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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 

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 

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: http:// 

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. 


CPrice-Sewell on DSKGBLS3C1PROD with PROPOSALS