[Federal Register: December 11, 2008 (Volume 73, Number 239)]
[Proposed Rules]
[Page 75373-75376]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de08-20]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket Number DHS-2008-0122]
Privacy Act of 1974: Implementation of Exemptions; United States
Coast Guard Notice of Arrival and Departure System
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security is proposing to amend its
regulations to exempt portions of a system of records from certain
provisions of the Privacy Act. Specifically, the Department proposes to
[[Page 75374]]
exempt portions of the United States Coast Guard Notice of Arrival and
Departure System from one or more provisions of the Privacy Act because
of criminal, civil, and administrative enforcement requirements.
DATES: Written comments and related material must be submitted on or
before January 12, 2009.
ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0122 by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Fax: 1-866-466-5370.
Mail: Hugo Teufel III, Chief Privacy Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
David Roberts (202-475-3521), United States Coast Guard Privacy
Officer, United States Coast Guard. For privacy issues please contact:
Hugo Teufel III (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), elsewhere in this
edition of the Federal Register, published a Privacy Act system of
records notice describing records for Notice of Arrival and Departure
(NOAD). This information is maintained within the Ship Arrival
Notification System (SANS), as well as other USCG systems charged with
screening and vetting of vessels, primarily, but not exclusively,
through Marine Information for Safety and Law Enforcement (MISLE, DOT/
CG 679, April 11, 2002, 67 FR 19612) and the Maritime Awareness Global
Network (MAGNet, DHS/USCG-061, May 15, 2008, 73 FR 28143). SANS
retrieves information by vessel and not by a personal identifier;
however, USCG uses the information in other systems to conduct
screening and vetting pursuant to its mission for protecting and
securing the maritime sector.
The information that is required to be collected and submitted
through Electronic Notice of Arrival and Departure (eNOAD) can be found
on routine arrival/departure documents that passengers and crewmembers
must provide to DHS, when entering or departing the United States.
This system, however, may contain records or information recompiled
from or created from information contained in other systems of records,
which are exempt from certain provisions of the Privacy Act. For these
records or information only, in accordance with 5 U.S.C. 552a (j)(2),
and (k)(2), DHS would also claim the original exemptions for these
records or information from subsections (c)(3) and (4); (d)(1), (2),
(3), and (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); (f),
and (g) of the Privacy Act of 1974, as amended, as necessary and
appropriate to protect such information. Moreover, DHS would add these
exemptions to Appendix C to 6 CFR Part 5, DHS Systems of Records Exempt
from the Privacy Act. Such exempt records or information may be law
enforcement or national security investigation records, law enforcement
activity and encounter records, or terrorist screening records.
DHS needs these exemptions in order to protect information relating
to law enforcement investigations from disclosure to subjects of
investigations and others who could interfere with investigatory and
law enforcement activities. Specifically, the exemptions are required
to: Preclude subjects of investigations from frustrating the
investigative process; avoid disclosure of investigative techniques;
protect the identities and physical safety of confidential informants
and of law enforcement personnel; ensure DHS's and other federal
agencies' ability to obtain information from third parties and other
sources; protect the privacy of third parties; and safeguard sensitive
information. The exemptions proposed here are standard law enforcement
exemptions exercised by a large number of federal law enforcement
agencies.
Nonetheless, DHS would examine each request on a case-by-case
basis, and, after conferring with the appropriate component or agency,
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.
Regulatory Requirements
A. Regulatory Impact Analyses
Changes to Federal regulations must undergo several analyses. In
conducting these analyses, DHS has determined:
1. Executive Order 12866 Assessment
This proposed rule is not a significant regulatory action under
Executive Order 12866, ``Regulatory Planning and Review'' (as amended).
Accordingly, this proposed rule has not been reviewed by the Office of
Management and Budget (OMB). Nevertheless, DHS has reviewed this
rulemaking, and concluded that there will not be any significant
economic impact.
2. Regulatory Flexibility Act Assessment
Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5
U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement
and Fairness Act of 1996 (SBREFA), DHS certifies that this rule will
not have a significant impact on a substantial number of small
entities. The proposed rule would impose no duties or obligations on
small entities. Further, the exemptions to the Privacy Act apply to
individuals, and individuals are not covered entities under the RFA.
3. International Trade Impact Assessment
This proposed rule would not constitute a barrier to international
trade. The exemptions relate to criminal investigations and agency
documentation and, therefore, do not create any new costs or barriers
to trade.
4. Unfunded Mandates Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub.
L. 104-4, 109 Stat. 48), requires Federal agencies to assess the
effects of certain regulatory actions on State, local, and tribal
governments, and the private sector. This proposed rule would not
impose an unfunded mandate on State, local, or tribal governments, or
on the private sector.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DHS consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. DHS has determined
that there are no current or new information collection requirements
associated with this proposed rule.
C. Executive Order 13132, Federalism
This action will not have a substantial direct effect on the
States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and therefore will not have federalism
implications.
[[Page 75375]]
D. Environmental Analysis
DHS has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
E. Energy Impact
The energy impact of this action has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163,
as amended (42 U.S.C. 6362). This proposed rule is not a major
regulatory action under the provisions of the EPCA.
List of Subjects in 6 CFR Part 5
Privacy, Freedom of information.
For the reasons stated in the preamble, DHS proposes to amend 6 CFR
chapter I 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 14:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
14. DHS/USCG-029, Notice of Arrival and Departure Information. A
portion of the following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3),
(4)(G) through (I), (5), and (8); (f), and (g); however, these
exemptions apply only to the extent that information in this system
of records is recompiled or is created from information contained in
other systems of records subject to such exemptions pursuant to 5
U.S.C. 552a(j)(2),and (k)(2). 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 (c)(4) (Accounting for Disclosure, notice of
dispute) because portions of this system are exempt from the access
and amendment provisions of subsection (d), this requirement to
inform any person or other agency about any correction or notation
of dispute that the agency made with regard to the record, should
not apply.
(c) From subsections (d)(1), (2), (3), and (4) (Access to
Records) because these provisions concern individual access to and
amendment of certain records contained in this system, including law
enforcement, counterterrorism, and investigatory records. Compliance
with these provisions could alert the subject of an investigation to
the fact and nature of the investigation, and/or the investigative
interest of intelligence or law enforcement agencies; compromise
sensitive information related to law enforcement, including matters
bearing on national security; interfere with the overall law
enforcement process by leading to the destruction of evidence,
improper influencing of witnesses, fabrication of testimony, and/or
flight of the subject; could identify a confidential source or
disclose information which would constitute an unwarranted invasion
of another's personal privacy; reveal a sensitive investigative or
intelligence technique; or constitute a potential danger to the
health or safety of law enforcement personnel, confidential
informants, and witnesses. Amendment of these records would
interfere with ongoing counterterrorism or law enforcement
investigations and analysis activities and impose an impossible
administrative burden by requiring investigations, analyses, and
reports to be continuously reinvestigated and revised.
(d) From subsection (e)(1) (Relevancy and Necessity of
Information) because it is not always possible for DHS or other
agencies to know in advance what information is relevant and
necessary for it to complete screening of passengers and crew.
Information relating to known or suspected terrorists is not always
collected in a manner that permits immediate verification or
determination of relevancy to a DHS purpose. For example, during the
early stages of an investigation, it may not be possible to
determine the immediate relevancy of information that is collected--
only upon later evaluation or association with further information,
obtained subsequently, may it be possible to establish particular
relevance to a law enforcement program. Lastly, this exemption is
required because DHS and other agencies may not always know what
information about an encounter with a known or suspected terrorist
will be relevant to law enforcement for the purpose of conducting an
operational response.
(e) From subsection (e)(2) (Collection of Information from
Individuals) because application of this provision could present a
serious impediment to counterterrorism or law enforcement efforts in
that it would put the subject of an investigation, study or analysis
on notice of that fact, thereby permitting the subject to engage in
conduct designed to frustrate or impede that activity. The nature of
counterterrorism, and law enforcement investigations is such that
vital information about an individual frequently can be obtained
only from other persons who are familiar with such individual and
his/her activities. In such investigations it is not feasible to
rely solely upon information furnished by the individual concerning
his own activities.
(f) From subsection (e)(3) (Notice to Subjects), to the extent
that this subsection is interpreted to require DHS to provide notice
to an individual if DHS or another agency receives or collects
information about that individual during an investigation or from a
third party. Should the subsection be so interpreted, exemption from
this provision is necessary to avoid impeding counterterrorism or
law enforcement efforts by putting the subject of an investigation,
study or analysis on notice of that fact, thereby permitting the
subject to engage in conduct intended to frustrate or impede that
activity.
(g) From subsections (e)(4)(G), (H) and (I) (Agency
Requirements) because portions of this system are exempt from the
access and amendment provisions of subsection (d).
(h) From subsection (e)(5) (Collection of Information) because
many of the records in this system coming from other systems of
records are derived from other domestic and foreign agency record
systems and therefore it is not possible for DHS to vouch for their
compliance with this provision; however, the DHS has implemented
internal quality assurance procedures to ensure that data used in
its screening processes is as complete, accurate, and current as
possible. In addition, in the collection of information for law
enforcement and counterterrorism purposes, it is impossible to
determine in advance what information is accurate, relevant, timely,
and complete. With the passage of time, seemingly irrelevant or
untimely information may acquire new significance as further
investigation brings new details to light. The restrictions imposed
by (e)(5) would limit the ability of those agencies' trained
investigators and intelligence analysts to exercise their judgment
in conducting investigations and impede the development of
intelligence necessary for effective law enforcement and
counterterrorism efforts.
(i) 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.
(j) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of
subsection (d).
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(k) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
Dated: December 2, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-29285 Filed 12-10-08; 8:45 am]
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