[Federal Register Volume 74, Number 121 (Thursday, June 25, 2009)]
[Proposed Rules]
[Pages 30241-30243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14908]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0021]
Privacy Act of 1974: Implementation of Exemptions; United States
Coast Guard--013 Marine Information for Safety and Law Enforcement
(MISLE)
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (DHS) is giving
concurrent notice of a revised and updated system of records pursuant
to the Privacy Act of 1974 for the United States Coast Guard Marine
Information for Safety and Law Enforcement system of records 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 July 27, 2009.
[[Page 30242]]
ADDRESSES: You may submit comments, identified by docket number DHS-
2009-0021, 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,
Department of Homeland Security, Washington, DC 20528.
Instructions: All submissions received must include the agency name
and docket number for this notice. 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: For general questions and 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: Pursuant to the savings clause in the Homeland
Security Act of 2002, Public Law 107-296, Section 1512, 116 Stat. 2310
(November 25, 2002), the Department of Homeland Security (DHS) and
United States Coast Guard (USCG) have relied on preexisting Privacy Act
systems of records notices for the collection and maintenance of
records that concern DHS/USCG marine, safety and law enforcement
information system records.
As part of its efforts to streamline and consolidate its Privacy
Act record systems, DHS/USCG is updating and reissuing a DHS/USCG
system of records under the Privacy Act (5 U.S.C. 552a) for DHS/USCG
marine, safety and law enforcement information system records. This
will ensure that all organizational parts of USCG follow the same
privacy rules for collecting and handling marine, safety and law
enforcement information system records.
In this notice of proposed rulemaking, DHS is now proposing to
exempt Marine Information for Safety and Law Enforcement 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 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 record keeping
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 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 the Marine Information for Safety and Law Enforcement System.
Some information in Marine Information for Safety and Law Enforcement
System relates to official DHS national security, law enforcement,
immigration, intelligence activities. These exemptions are needed to
protect information relating to DHS activities from disclosure to
subjects 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 activity
techniques; to protect the identities and physical safety of
confidential informants and law enforcement personnel; to ensure DHS's
ability to obtain information from third parties and other sources; and
to protect the privacy of third parties. Disclosure of information to
the subject of the inquiry could also permit the subject to avoid
detection or apprehension.
The exemptions proposed here are standard law enforcement
exemptions exercised by a large number of Federal law enforcement
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 Marine Information for Safety and
Law Enforcement 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 proposes to amend
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: 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.
2. Add at the end of Appendix C to Part 5, Exemption of Record
Systems under the Privacy Act, the following new paragraph ``14'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
14. The Department of Homeland Security/United States Coast
Guard Marine Information for Safety and Law Enforcement system of
records consists of electronic and paper records and will be used by
DHS and its components. Marine Information for Safety and Law
Enforcement 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;
national security and intelligence activities. Marine Information
for Safety and Law Enforcement 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. 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), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), and
(g). Pursuant to 5 U.S.C. 552a(k)(2) of the Privacy Act, 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), (I), and (f). 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) and (4) (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
[[Page 30243]]
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
interests of effective law enforcement, it is appropriate to retain
all information that may aid in establishing patterns of unlawful
activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject to the
nature or existence of an investigation, 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 law enforcement in
that it could compromise investigations by: revealing the existence
of an otherwise confidential investigation and thereby provide an
opportunity for the subject of an investigation to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative efforts; reveal the identity of witnesses in
investigations, thereby providing an opportunity for the subjects of
the investigations or others to harass, intimidate, or otherwise
interfere with the collection of evidence or other information from
such witnesses; 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), (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 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.
(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) (Notice on Individuals) because
compliance would interfere with DHS' ability to obtain, serve, and
issue subpoenas, warrants, and other law enforcement mechanisms that
may be filed under seal, and could result in disclosure of
investigative techniques, procedures, and evidence.
(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: June 18, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-14908 Filed 6-24-09; 8:45 am]
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