Federal Register: March 22, 2005 (Volume 70, Number 54)
DOCID: FR Doc 05-5584
DEPARTMENT OF HOMELAND SECURITY
Homeland Security Department
CFR Citation: 6 CFR Part 5
DHS ID: [DHS-2004-0016]
NOTICE: PROPOSED RULES
DOCUMENT ACTION: Notice of proposed rulemaking.
Privacy Act of 1974: Implementation of Exemptions
DATES: Comments must be received on or before April 21, 2005.
The Department of Homeland Security is concurrently establishing a new system of records pursuant to the Privacy Act of 1974 for the Bureau of Immigration and Customs Enforcement, Student and Exchange Visitor Program. In this proposed rulemaking, the Department proposes to exempt portions of this system of records from one or more provisions of the Privacy Act because of criminal, civil and administrative enforcement requirements.
Privacy Act; implementation,
Concurrently with the publication of this notice of proposed rulemaking, the Department of Homeland Security (DHS) is publishing a Notice establishing a new system of records that is subject to the Privacy Act of 1974, 5 U.S.C. 552a. This new system is the Student and Exchange Visitor Information System (SEVIS), maintained by the Student and Exchange Visitor Program. DHS is proposing to exempt this system, 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 Homeland Security Act of 2002 requires the Secretary of DHS to appoint a senior official to oversee implementation of the Privacy Act and to undertake other privacyrelated activities. Pub. L. 107296, section 222, 116 Stat. 2135, 2155 (Nov. 25, 2002) (HSA). The system of records being published today helps to carry out the DHS Chief Privacy Officer's statutory activities.
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 to more easily find such files within the agency.
The Privacy Act 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 exemption from certain requirements of the Privacy
Act for SEVIS. Because the purpose of the SEVIS system is to collect
and maintain pertinent information on nonimmigrant students and
exchange visitors and the schools and exchange visitor program sponsors
that host them while in the United States in order to ensure that these
individuals comply with the requirements of their admission, it is
possible that the information in the record system may pertain to
national security or law enforcement matters. In such cases, allowing
access to such information could alert the subject of the information
to an investigation of an actual or potential criminal, civil, or
regulatory violation and reveal investigative interest on the part of
DHS or another agency. Disclosure of the information would therefore
present a serious impediment to law enforcement efforts and/or efforts
to preserve national security. Disclosure of the information would also
permit the individual, who is the subject of a record, to impede the
investigation and avoid detection or apprehension, which undermines the
entire system. This exemption is a standard law enforcement and
national security exemption utilized by numerous law enforcement and intelligence agencies.
List of Subjects in 6 CFR Part 5
Privacy; Freedom of information.
For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows: PART 5DISCLOSURE OF RECORDS AND INFORMATION
1. The authority citation for Part 5 continues to read as follows:
Authority: Pub. L. 107296, 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 Appendix C to Part 5 the following:
Appendix C to Part 5DHS Systems of Records Exempt From the Privacy Act
This Appendix implements provisions of the Privacy Act of 1974 that permit the Department of Homeland Security (DHS) to exempt its systems of records from provisions of the Act.
Portions of the following DHS systems of records are exempt from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552(j) and (k):
1. DHS/ICE 001, the Student and Exchange Visitor Information
System, which allows DHS to collect and maintain information on
nonimmigrant students and exchange visitors, and the schools and
exchange program sponsors that host them in the United States. The
system permits DHS to monitor compliance by these individuals with
the terms of their admission into the United States. Pursuant to
exemptions (j)(2), (k)(1), (k)(2) and (k)(5) of the Privacy Act,
portions of this system are exempt from 5 U.S.C. 552a(c)(3); (d);
(e)(1); (e)(4)(G), (H) and (I). Exemptions from the 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 and avoid detection or apprehension, which undermines the entire system.
(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 and avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and impose an impossible administrative burden by requiring investigations to be continuously reinvestigated. In addition, permitting access and amendment to such information also could disclose securitysensitive 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 enforcement of federal laws, 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 access provisions of subsection (d).
Dated: March 15, 2005.
Nuala O'Connor Kelly,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 055584 Filed 32105; 8:45 am]
BILLING CODE 441010P
FOR FURTHER INFORMATION CONTACT
Nuala O'Connor Kelly, Chief Privacy Officer, Department of Homeland Security, Washington, DC 20528 by telephone 2027729848 or facsimile 2027725036.