This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

51619 

Vol. 75, No. 162 

Monday, August 23, 2010 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2010–0054] 

Privacy Act of 1974: Implementation of 

Exemptions; Department of Homeland 

Security/United States Citizenship and 

Immigration Services—009 

Compliance Tracking and Management 

System of Records 

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/ 

United States Citizenship and 

Immigration system of records entitled 

the ‘‘United States Citizenship and 

Immigration Services—009 Compliance 

Tracking and Management System of 

Records’’ from certain provisions of the 

Privacy Act. Specifically, the 

Department proposes to exempt 

portions of the Department of Homeland 

Security/United States Citizenship and 

Immigration Services—009 Compliance 

Tracking and Management System of 

Records from certain provisions of the 

Privacy Act because of criminal, civil, 

and administrative enforcement 

requirements. 

DATES: This final rule is effective August 

23, 2010. 

FOR FURTHER INFORMATION CONTACT: For 

general questions please contact 

Monitoring and Compliance Branch 

Chief (202–358–7777), Verification 

Division, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 470 L’Enfant Plaza 

East, SW., Suite 8204, Washington, DC 

20529. For privacy issues please 

contact: Mary Ellen Callahan (703–235– 

0780), Chief Privacy Officer, Privacy 

Office, Department of Homeland 

Security, Washington, DC 20528. 

SUPPLEMENTARY INFORMATION: 

Background 

The Department of Homeland 

Security (DHS) published a notice of 

proposed rulemaking (NPRM) in the 

Federal Register, 74 FR 23957, May 22, 

2009, proposing to exempt portions of 

the DHS/United States Citizenship and 

Immigration Services (USCIS)—009 

Compliance Tracking and Management 

System (CTMS) of Records from certain 

provisions of the Privacy Act because of 

criminal, civil, and administrative 

enforcement requirements. The DHS/ 

USCIS—009 Compliance Tracking and 

Management system of records notice 

(SORN) was published concurrently in 

the Federal Register, 74 FR 24022, May 

22, 2009 and comments were invited on 

both the NPRM and SORN. Comments 

were received on both the NPRM and 

SORN. 

Comments on the Notice of Proposed 

Rulemaking (74 FR 23957, May 27, 

2009) 

DHS/USCIS received seven comments 

on the NPRM (74 FR 23957, May 22, 

2009) and twelve on the SORN (74 FR 

24022, May 22, 2009). One set of 

comments relates to a potential 

operational concern with the SAVE 

program that pertains to the DHS/ 

USCIS—004 Verification Information 

System (VIS). While CTMS does deal 

with SAVE data, the comments in 

question did not relate to compliance 

and monitoring issues. These comments 

are being addressed by the SAVE 

program. Another set of comments 

concerned corporate hiring practices 

and did not relate to CTMS or 

compliance and monitoring issues 

generally. 

Below is an analysis of each comment 

that specifically relate to this NPRM that 

is not addressed directly above. 

Comments were received from the 

National Immigration Law Center 

(NILC) regarding several elements of the 

CTMS SORN and corresponding Notice 

of Proposed Rulemaking (NPRM) 

Comment: NILC stated that law 

enforcement exemptions were 

overbroad and unwarranted. 

Response: The Department notes that 

Congress has stated its understanding 

that the USCIS employment verification 

system may be used for law enforcement 

purposes when necessary to prevent 

violations of the Immigration and 

Nationality Act (INA), and in cases of 

document fraud, counterfeiting and 

perjury (8 U.S.C. 1324a(d)(2)(F)). EVerify was originally established for the 

purpose of serving as a ‘‘confirmation 

system through which [DHS]— 

(1) Responds to inquiries made by 

electing persons and other entities 

[* * *] at any time through a toll-free 

telephone line or other toll-free 

electronic media concerning an 

individual’s identity and whether the 

individual is authorized to be 

employed, and 

(2) Maintains records of the inquiries 

that were made, of confirmations 

provided (or not provided), and of the 

codes provided to inquirers as evidence 

of their compliance with their 

obligations under the pilot programs.’’. 

(8 U.S.C. 1324a note (at § 404(a)) ‘‘The 

confirmation system shall be designed 

and operated— 

(1) To maximize its reliability and 

ease of use by persons and other entities 

making elections under section 402(a) of 

this division consistent with insulating 

and protecting the privacy and security 

of the underlying information; 

(2) To respond to all inquiries made 

by such persons and entities on whether 

individuals are authorized to be 

employed and to register all times when 

such inquiries are not received; 

(3) With appropriate administrative, 

technical, and physical safeguards to 

prevent unauthorized disclosure of 

personal information; and 

(4) To have reasonable safeguards 

against the system’s resulting in 

unlawful discriminatory practices based 

on national origin or citizenship status, 

including— 

(A) The selective or unauthorized use 

of the system to verify eligibility; 

(B) The use of the system prior to an 

offer of employment; or 

(C) The exclusion of certain 

individuals from consideration for 

employment as a result of a perceived 

likelihood that additional verification 

will be required, beyond what is 

required for most job applicants.’’. (8 

U.S.C. 1324a note (at § 404(d)) 

CTMS serves as a vehicle by which 

USCIS can comply with its statutory 

mandate to ensure the integrity of the 

verification system as outlined above. 

Information in CTMS may provide 


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51620 Federal Register / Vol. 75, No. 162 / Monday, August 23, 2010 / Rules and Regulations 

evidence of the improper use of the EVerify system which directly supports 

the statutory mandate to prevent the 

misuse, discriminatory or fraudulent 

use of the system. Furthermore, every 

request for access to information in 

CTMS will be evaluated with the 

predisposition to releasing the 

information. USCIS will only claim the 

exemption if it determines that releasing 

the information would be contrary to a 

law enforcement purpose. 

Comments were received from the 

American Immigration Lawyer 

Association (AILA) regarding several 

points. 

Comment: AILA objected to the 30- 

day comment period. 

Response: The Department notes that 

the Administrative Procedure Act 

(‘‘APA’’), 5 U.S.C. 553(c), provides that 

‘‘each agency that maintains a system of 

records shall at least 30 days prior to 

publication of information under 

paragraph (4)(D) of this subsection, 

publish in the notice in the Federal 

Register any new use or intended use of 

the information in the system, and 

provide an opportunity for interested 

persons to submit written data, views, 

or arguments to the agency.’’ In the 

absence of a demonstration of a 

compelling need to extend this period, 

such as numerous requests for 

additional time or when the subject of 

the proposed governmental action is 

complex or exceedingly controversial, 

the 30 days provided for under the APA 

provides an opportunity for thorough, 

well-informed rulemaking. While 

AILA’s comments were the only 

comments submitted past the 30-day 

time period, USCIS did consider their 

comments. Based on the public 

comments received thus far, there is 

nothing to suggest that there was a need 

for additional time. 

Comment: AILA commented that the 

use of CTMS for law enforcement 

support is contrary to Congressional 

intent. 

Response: Congress has stated its 

understanding that the USCIS 

employment verification system may be 

used for law enforcement purposes 

when necessary to prevent violations of 

the INA, and in cases of document 

fraud, counterfeiting, and perjury in the 

INA 8 U.S.C. 1324a(d)(2)(F). 8 U.S.C. 

1324a note (at § 404(d)) requires that 

E-Verify have ‘‘reasonable safeguards 

against the system resulting in unlawful 

discriminatory practices based on 

national origin or citizenship status, 

including—(A) The selective or 

unauthorized use of the system to verify 

eligibility; (B) the use of the system 

prior to an offer of employment; or (C) 

the exclusion of certain individuals 

from consideration for employment as a 

result of a perceived likelihood.’’ 

CTMS serves as a vehicle by which 

USCIS can comply with its statutory 

mandate to ensure the integrity of the 

verification system by preventing the 

fraudulent use of E-Verify and SAVE 

and violation of the INA, as well as any 

misuse or discriminatory use of the 

system (8 U.S.C. 1324a note (at 

§ 404(d))). 

Comment: AILA expressed concern 

that because E-Verify is only a pilot, any 

results from the system should be used 

only for education and outreach, not 

law enforcement purposes. 

Response: The Department 

acknowledges that as long as E-Verify is 

operational, there is the potential that it 

will be misused or abused. The 

monitoring and compliance 

functionality has been established to 

identify and resolve noncompliance. 

This is particularly important, 

regardless of the programs’ status as a 

pilot, where misuse of the system has an 

immediate effect on a person’s ability to 

work. CTMS is an integral component of 

these monitoring and compliance 

activities, as it allows for compliance 

activity management and storage of the 

information supporting the compliance 

determinations surrounding use of the 

program. 

Comment: AILA expressed concern 

that CTMS is not an effective way to 

reduce identity theft, and recommends 

that all multiple uses of A-Number or 

SSN should result in a Tentative NonConfirmation (TNC) rather than 

additional further research into the 

employer. 

Response: The Department is aware of 

the potential for fraudulently used 

identity documents to be verified 

through the system. The USCIS 

Verification Division, the component of 

DHS responsible for the E-Verify 

Program and CTMS, meets with AILA 

annually. During a meeting held May 7, 

2009, AILA and representatives from the 

Verification Division discussed the 

monitoring of multiple SSNs. USCIS is 

researching solutions to this potential 

problem. However, multiple uses of ANumber or SSN identifications do not 

warrant automatic TNCs since it is 

feasible for one individual to be 

accurately verified in the system 

multiple times, where they may hold 

multiple jobs or change jobs frequently. 

Hence, multiple uses of an A-Number or 

SSN are not necessarily fraudulent and 

should not result in a TNC in all cases. 

In fact, the inconvenience that would be 

caused to individuals who are rightly 

verified multiple times would outweigh 

the benefit of automatic TNCs. CTMS 

would be used to determine under 

which circumstances such incidents of 

multiple uses would indicate a need for 

further compliance research and would 

be the tool to manage any resulting 

compliance activity. 

Comment: AILA expressed concern 

that an employer might try to protect 

itself from law enforcement activities by 

only selecting employees the employer 

perceives to be without any potential for 

immigration-related violations, thereby 

increasing immigration-related 

discrimination. 

Response: The Department agrees that 

E-Verify users may try to insulate 

themselves from law enforcement 

activities by discriminatory use of these 

systems. As the Department has already 

developed a relationship for forwarding 

potential violations to the Department of 

Justice (DOJ) Office of Special Counsel 

(OSC) as required by law, it is vital that 

the monitoring and compliance 

activities be well developed and 

managed to ensure that E-Verify is 

looking carefully at these issues. 

Comment: AILA suggested that there 

are better methods for reducing 

discrimination and misuse of E-Verify 

including: (1) Improving posters and 

providing alternative means of 

notification; (2) involving OSC more 

directly in E-Verify education and 

outreach efforts; (3) modifying E-Verify 

case resolution functionality; (4) 

enhancing E-Verify user reports; and (5) 

providing better training and reporting 

tools to corporate and program 

administrators. 

Response: The Department agrees that 

there should be an ongoing process of 

evaluating and improving the methods 

that are used to prevent and detect 

misuse. In fact, AILA’s suggestion 

regarding improving posters is 

supported by the compliance activity of 

determining whether the posters are 

actually being used by employers. The 

development of the USCIS Verification 

Division Monitoring and Compliance 

Branch and the appropriate use of the 

CTMS tracking and managing tool are 

central to this ongoing initiative, and 

will be used in conjunction with other 

program enhancements to involve 

employers in the compliance assistance 

elements of E-Verify. In addition, EVerify continuously evaluates and 

improves the means of educating users 

about the correct way to use E-Verify, 

and of informing the individuals being 

verified of their rights. E-Verify works 

closely with OSC, as appropriate, using 

the CTMS to guide referrals to the 

appropriate enforcement agency. Recent 

changes have included significant 

enhancements to the training processes 

and additional means of notification, 

including adding privacy information 


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Federal Register / Vol. 75, No. 162 / Monday, August 23, 2010 / Rules and Regulations 51621 

on the E-Verify Web site. The 

Department is currently evaluating the 

E-Verify case resolution functionality, 

determining additional ways to involve 

the users in the integrity of the programs 

and is investigating enhancements to 

the program’s reporting capabilities, to 

address user’s ability to evaluate and 

train individual users, and to use other 

means to assist users in the E-Verify 

processes. Further, USCIS signed a 

Memorandum of Agreement with the 

Department of Justice’s Office of Special 

Counsel (OSC) for Unfair ImmigrationRelated Employment practices on March 

17, 2010 that formally establishes the 

relationship and process for referrals 

between the agencies, and continued 

collaboration efforts, including E-Verify 

education and outreach. 

Comments on the System of Records 

Notice (74 FR 24022, May 22, 2009) 

Comment: NILC expressed concern 

that the CTMS SORN does not 

adequately address how monitoring and 

compliance will be conducted given the 

expanded use of SAVE by States and 

localities. 

Response: The Department 

acknowledges that the expanded use of 

SAVE, as required by section 642(c) of 

the Illegal Immigration Reform and 

Immigrant Responsibility Act (Pub. L. 

104–208, 110 Stat. 3009), will increase 

the number and types of SAVE users. 

These users will pose different 

monitoring and compliance challenges. 

However, all SAVE user agencies are 

subject to the policies and procedures 

governing use of the system. The 

Department is aligning the SAVE 

monitoring and compliance activities 

with the various agencies, whether 

federal, state, or local, in order to 

identify non-compliant behaviors 

regardless of the specific purpose of the 

SAVE query. In fact, in the vast majority 

of cases, the same type of SAVE query 

is conducted using the same 

information and documentation 

regardless of the purpose of the query. 

CTMS will be used to track and manage 

these monitoring and compliance 

activities and provide support for SAVE 

monitoring and compliance deliberative 

processes. 

Comment: NILC expressed concern 

that E-Verify focusing on an employer’s 

election not to use E-Verify after 

registering for the program would be a 

waste of resources as it does not actually 

indicate misuse of the system. 

Response: The Department 

appreciates NILC concern that E-Verify 

not waste resources on a behavior that 

does not indicate a misuse of the 

system. However, once enrolled in 

E-Verify, employers are required to 

either verify all new hires through the 

system, or withdraw from E-Verify. This 

is required in order to minimize the 

potential of an employer using the 

system in a potentially discriminatory 

manner by verifying some employees 

but not others. The Department also 

notes that this is a good example of a 

misuse that would be resolved in almost 

all cases by E-Verify providing 

compliance assistance to employers to 

help them understand what their 

responsibilities are. Although CTMS is 

used for identifying potentially illegal 

activities, compliance activities are 

primarily focused on education, 

training, and awareness to assist 

employers to better understand the 

purpose of E-Verify and their role in the 

process. 

Comment: NILC expressed concerns 

that, despite DHS’ stated intentions, 

CTMS is designed to investigate 

immigration offenses by employees 

rather than misuse by employers. 

Response: The Department 

understands the NILC’s concern, but in 

both the SAVE and E-Verify programs 

the Department is mandated to focus on 

the relationship with the agency or 

employer in its operational activities not 

on the applicant or employee being 

verified. Employers are the direct users 

of E-Verify as are SAVE agencies the 

direct users of SAVE, and it is with 

E-Verify employers and SAVE agencies 

that the E-Verify or SAVE Memoranda 

of Understandings (MOUs) are signed. 

The subject of E-Verify or SAVE 

verification would only be contacted if 

the compliance activity is based on a 

specific lead or tip first provided 

voluntarily to DHS by that subject. 

However, if in the course of research 

USCIS discovers evidence of fraud by an 

individual verified by SAVE or E-Verify, 

USCIS will evaluate those matters and 

may refer them to the appropriate law 

enforcement agency. 

Comment: NILC expressed concern 

that if CTMS is used for immigration 

enforcement and Privacy Act 

exemptions are granted, employees, 

those most likely to be able to witness 

and report on misuse, will be unwilling 

to make such reports. 

Response: Employee information is 

vital to compliance analysts for 

interpreting various user behaviors and 

the monitoring and compliance effort is 

essential to protecting the rights of the 

employee from abuse by employers and 

other employees, as well as determining 

if employer or agency users are in 

compliance with the program terms of 

use. Currently, as required by law, EVerify forwards information that 

suggests illegal activities to appropriate 

law enforcement organizations. The 

Department acknowledges the risk that 

some employees may be unwilling to 

report cases of misuse of E-Verify or 

SAVE because of their concerns 

regarding CTMS’s immigration 

enforcement capability and its Privacy 

Act exemptions. This risk however, is 

one that must be accepted in order to 

effectively and adequately protect the 

integrity of any law enforcement 

investigations that result from 

monitoring and compliance activities 

within CTMS. 

Comments were received from the 

American Council on International 

Personnel (ACIP) regarding two points. 

Comment: ACIP requested that 

E-Verify should work directly with 

employers before any effort is made to 

refer potential issues to law enforcement 

organizations. 

Response: The Department agrees 

with ACIP and E-Verify has developed 

an escalating approach to compliance in 

which noncompliance is resolved by 

contacting and working with the 

employer directly when possible. The 

purpose of collecting information in the 

CTMS is to allow compliance analysts 

to determine the correct approach to 

involving the employer or agency in the 

compliance process. E-Verify begins 

from a position of ‘‘compliance 

assistance,’’ which is to educate 

employers and ensure proper policies 

and procedures are followed. If, after the 

employer has been contacted, 

noncompliance is ongoing or more 

egregious, E-Verify may escalate to 

compliance activities that involve more 

direct interaction with employers, 

which may include collecting additional 

information from the employer for 

analysis. For those situations where 

USCIS believes there is more egregious 

noncompliance, E-Verify may make a 

referral to a law enforcement agency for 

the appropriate enforcement action. 

CTMS tracks and manages this process. 

Comment: ACIP suggested the use of 

additional advanced technologies to 

prevent fraud and misuse. 

Response: The Department 

appreciates ACIP’s comment and is 

continuing to investigate a number of 

technologies and processes that would 

increase the integrity of the SAVE and 

E-Verify program, but believes that as no 

technology will be able to stop all cases 

of misuse, DHS must develop a system 

and process for researching, tracking, 

and managing potential cases of misuse, 

abuse, fraud, or discrimination. 

Comment: AILA expressed concern 

that CTMS is beyond the scope of 

authority for E-Verify established by 

IIRIRA, but that if CTMS is to be used 

it should be used as a tool to focus 


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51622 Federal Register / Vol. 75, No. 162 / Monday, August 23, 2010 / Rules and Regulations 

attention on employees who might be 

misusing documentation. 

Response: The Department is aware of 

the need to ensure that that E-Verify and 

SAVE are not misused. However, 

because these programs work directly 

with the employers and SAVE agencies, 

and do not have a direct relationship 

with the individuals being verified, it is 

necessary to focus on the users of the 

programs. Thus, the employers and 

SAVE agency users create a contractual 

relationship with DHS through their 

registration and signing of the program 

Memoranda of Understanding (MOUs) 

which establish the parameters of their 

use. In light of this relationship, the 

Department can work to train users on 

the correct use of the programs. Until 

Congress directs otherwise, these 

programs must focus on the E-Verify 

and SAVE users. 

Comment: AILA expressed concern 

that DHS failed to consult with 

employer representatives in the 

development and implementation of 

E-Verify as required by IIRIRA, Section 

402(d)(1). 

Response: E-Verify works with the 

user population on changes to 

continuously improve the program, 

through outreach and interaction with 

employers and agencies by conducting 

training sessions, Webinars, and 

outreach events throughout the United 

States. These outreach initiatives have 

resulted in changes to E-Verify, for 

example changes have been made to 

simplify E-Verify language and to 

change data handling procedures to 

make it more convenient for employers 

and employees using E-Verify. E-Verify 

also evaluates and implements, where 

possible, the suggestions of employer 

advocacy organizations, for example the 

program is currently evaluating changes 

to the program that would increase 

enhanced program authentication 

methods. The Westat Reports, the 

statutorily mandated third party review 

of E-Verify, are published to the Web to 

inform employers of recommendations 

for improving the integrity of the 

program. These efforts meet the 

requirements of IIRIRA § 402 (d)(1) 

which provide that DHS ‘‘shall closely 

consult with representatives of 

employers (and recruiters and referrers) 

in the development and implementation 

of the pilot programs, including the 

education of employers (and recruiters 

and referrers) about such programs.’’ 

Comment: AILA recommended that 

DHS not devote resources to the CTMS 

system until release of the pending 

Westat Report. 

Response: The Westat Reports of 2002 

and 2007 recommended that USCIS 

develop monitoring and compliance 

capability. The USCIS Verification 

Division Monitoring and Compliance 

Branch has developed CTMS as a 

support tool for its operations. 

Recommendations from the next Westat 

Report, along with experience from 

monitoring and compliance activities, 

will be an input to this continuous 

improvement function. 

USCIS Verification Division 

Monitoring and Compliance Branch 

operations have been developed based 

on best practices, as well as knowledge 

of the E-Verify system and the ways in 

which it could potentially be misused or 

abused. The previous Westat Reports 

served as a reference while the USCIS 

Verification Division Monitoring and 

Compliance Branch was being 

formulated; future Westat Reports will 

likewise be leveraged. However, the 

absence of a ‘‘perfect’’ E-Verify system 

should not preclude the establishment 

of a monitoring and compliance 

component, along with the associated 

tools, such as CTMS. As long as the 

system is being used, USCIS has a 

responsibility to ensure that the system 

is being used appropriately and in 

accordance with program rules and 

regulations. The USCIS Verification 

Division Monitoring and Compliance 

Branch, and associated management 

tools, fulfill that function. 

Having taken into consideration and 

addressed public comments resulting 

from this NPRM and SORN, as well as 

the Department’s position on these 

public comments, 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: 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. Add at the end of Appendix C to 

Part 5, the following new paragraph 

‘‘49’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

49. The DHS/USCIS—009 Compliance 

Tracking and Management System of Records 

consists of electronic 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 minimizing 

misuse, abuse, discrimination, breach of 

privacy, and fraudulent use of SAVE and EVerify. The Secretary of Homeland Security 

has exempted this system from the following 

provisions of the Privacy Act, subject to the 

limitation 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)(2). 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) (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 

interest of effective law enforcement, it is 

appropriate to retain all information that may 

aid in establishing patterns of unlawful 

activity. 

(d) From subsections (e)(4)(G), (H), and (I) 

(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 


sroberts on DSKD5P82C1PROD with RULES
Federal Register / Vol. 75, No. 162 / Monday, August 23, 2010 / Rules and Regulations 51623 

1The S.A.F.E. Act was enacted as part of the 

Housing and Economic Recovery Act of 2008, 

Public Law 110–289, Division A, Title V, sections 

1501–1517, 122 Stat. 2654, 2810–2824 (July 30, 

2008), codified at 12 U.S.C. 5101–5116. Citations in 

this Supplementary Information section are to the 

‘‘S.A.F.E. Act’’ by section number in the public law. 

2The OCC, Board, FDIC, OTS, and NCUA are 

referred to both in the S.A.F.E. Act and in this 

rulemaking as the ‘‘Federal banking agencies.’’ 

pursuant to which individuals may access 

and view records pertaining to themselves in 

the system would undermine investigative 

efforts and reveal the identities of witnesses, 

and potential witnesses, and confidential 

informants. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2010–20856 Filed 8–20–10; 8:45 am] 

BILLING CODE 9111–97–P 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Part 34 

[Docket ID OCC–2010–0007] 

RIN 1557–AD23 

FEDERAL RESERVE SYSTEM 

12 CFR Parts 208 and 211 

[Docket No. R–1357] 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 365 

RIN 3064–AD43 

DEPARTMENT OF THE TREASURY 

Office of Thrift Supervision 

12 CFR Part 563 

[Docket No. 2010—0021] 

RIN 1550–AC33 

FARM CREDIT ADMINISTRATION 

12 CFR Part 610 

RIN 3052–AC52 

NATIONAL CREDIT UNION 

ADMINISTRATION 

12 CFR Parts 741 and 761 

RIN 3133–AD59 

Registration of Mortgage Loan 

Originators 

Correction 

In rule document 2010–18148 

beginning on page 44656 in the issue of 

Wednesday, July 28, 2010, make the 

following corrections: 

On pages 44656 through 44684, in 

Separate Part IV, footnotes 1 through 67 

were not correctly numbered. The entire 

preamble is being reprinted to include 

the correctly numbered footnotes. 

AGENCY: Office of the Comptroller of the 

Currency, Treasury (OCC); Board of 

Governors of the Federal Reserve 

System (Board); Federal Deposit 

Insurance Corporation (FDIC); Office of 

Thrift Supervision, Treasury (OTS); 

Farm Credit Administration (FCA); and 

National Credit Union Administration 

(NCUA). 

ACTION: Final rule. 

SUMMARY: The OCC, Board, FDIC, OTS, 

FCA, and NCUA (collectively, the 

Agencies) are adopting final rules to 

implement the Secure and Fair 

Enforcement for Mortgage Licensing Act 

(the S.A.F.E. Act). The S.A.F.E. Act 

requires an employee of a bank, savings 

association, credit union or Farm Credit 

System (FCS) institution and certain of 

their subsidiaries that are regulated by 

a Federal banking agency or the FCA 

(collectively, Agency-regulated 

institutions) who acts as a residential 

mortgage loan originator to register with 

the Nationwide Mortgage Licensing 

System and Registry, obtain a unique 

identifier, and maintain this 

registration. The final rule further 

provides that Agency-regulated 

institutions must: require their 

employees who act as residential 

mortgage loan originators to comply 

with the S.A.F.E. Act’s requirements to 

register and obtain a unique identifier, 

and adopt and follow written policies 

and procedures designed to assure 

compliance with these requirements. 

DATES: This final rule is effective on 

October 1, 2010. Compliance with 

§ __.103 (registration requirement) of the 

final rule is required by the end of the 

180-day period for initial registrations 

beginning on the date the Agencies 

provide in a public notice that the 

Registry is accepting initial 

registrations. 

FOR FURTHER INFORMATION CONTACT: 

OCC: Michele Meyer, Assistant 

Director, Heidi Thomas, Special 

Counsel, or Patrick T. Tierney, Senior 

Attorney, Legislative and Regulatory 

Activities, (202) 874–5090, and Nan 

Goulet, Senior Advisor, Large Bank 

Supervision, (202) 874–5224, Office of 

the Comptroller of the Currency, 250 E 

Street SW., Washington, DC 20219. 

Board: Anne Zorc, Counsel, Legal 

Division, (202) 452–3876, Virginia 

Gibbs, Senior Supervisory Analyst, 

(202) 452–2521, and Stanley Rediger, 

Supervisory Financial Analyst, (202) 

452–2629, Division of Banking 

Supervision and Regulation, Board of 

Governors of the Federal Reserve 

System, 20th and C Streets, NW., 

Washington, DC 20551. 

FDIC: Thomas F. Lyons, Examination 

Specialist, (202) 898–6850, Victoria 

Pawelski, Senior Policy Analyst, (202) 

898–3571, or John P. Kotsiras, Financial 

Analyst, (202) 898–6620, Division of 

Supervision and Consumer Protection; 

or Richard Foley, Counsel, (202) 898– 

3784, or Kimberly A. Stock, Counsel, 

(202) 898–3815, Legal Division, Federal 

Deposit Insurance Corporation, 550 17th 

Street, NW., Washington, DC 20429. 

OTS: Charlotte M. Bahin, Special 

Counsel (Special Projects), (202) 906– 

6452, Vicki Hawkins-Jones, Special 

Counsel, Regulations and Legislation 

Division, (202) 906–7034, Debbie 

Merkle, Project Manager, Credit Risk, 

(202) 906–5688, and Rhonda Daniels, 

Senior Compliance Program Analyst, 

Consumer Regulations, (202) 906–7158, 

Office of Thrift Supervision, 1700 G 

Street, NW., Washington, DC 20552. 

FCA: Gary K. Van Meter, Deputy 

Director, Office of Regulatory Policy, 

(703) 883–4414, TTY (703) 883–4434, or 

Richard A. Katz, Senior Counsel, or 

Jennifer Cohn, Senior Counsel, Office of 

General Counsel, (703) 883–4020, TTY 

(703) 883–4020, Farm Credit 

Administration, 1501 Farm Credit Drive, 

McLean, VA 22102–5090. 

NCUA: Regina Metz, Staff Attorney, 

Office of General Counsel, 703–518– 

6561, or Lisa Dolin, Program Officer, 

Division of Supervision, Office of 

Examination and Insurance, 703–518– 

6360, National Credit Union 

Administration, 1775 Duke Street, 

Alexandria, VA 22314–3428. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Statutory Requirements 

The S.A.F.E. Act,1 enacted on July 30, 

2008, mandates a nationwide licensing 

and registration system for mortgage 

loan originators. Specifically, the Act 

requires all States to provide for a 

licensing and registration regime for 

mortgage loan originators who are not 

employed by Agency-regulated 

institutions within one year of 

enactment (or two years for States 

whose legislatures meet biennially). In 

addition, the S.A.F.E. Act requires the 

OCC, Board, FDIC, OTS and NCUA,2

through the Federal Financial 

Institutions Examination Council 

(FFIEC), and the FCA to develop and 


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