[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Pages 45086-45087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20758]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2009-0076]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security; U.S. Coast Guard--029 Notice of Arrival and
Departure System
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security is issuing a final rule to
amend its regulations to exempt portions of a Department of Homeland
Security U.S. Coast Guard system of records entitled the ``Department
of Homeland Security U.S. Coast Guard--029 Notice of Arrival and
Departure System of Records'' from certain provisions of the Privacy
Act. Specifically, the Department exempts portions of the Department of
Homeland Security U.S. Coast Guard--029 Notice of Arrival and Departure
system from one or more provisions of the Privacy Act because of
criminal, civil, and administrative enforcement requirements.
DATES: Effective Date: This final rule is effective September 30, 2009.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
David Roberts (202-475-3521), Privacy Officer, United States Coast
Guard. For privacy issues contact: Mary Ellen Callahan (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) published a notice of
proposed rulemaking in the Federal Register, 73 FR 75373, December 11,
2008, proposing 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. The system of records is the
DHS/U.S. Coast Guard (USCG)--029 Notice of Arrival and Departure
system. The DHS/USCG--029 Notice of Arrival and Departure system of
records notice was published concurrently in the Federal Register, 73
FR 75442, December 11, 2008, and comments were invited on both the
notice of proposed rulemaking and system of records notice. No comments
were received.
Public Comments
DHS received no comments on the notice of proposed rulemaking or
system of records notice. DHS will implement the rulemaking as
proposed.
List of Subjects in 6 CFR Part 5
Privacy, Freedom of information.
0
For the reasons stated in the preamble, DHS amends 6 CFR chapter I as
follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
0
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.
0
2. At the end of Appendix C to Part 5, add the following new paragraph
``34'':
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act.
* * * * *
34. The DHS/USCG--029 Notice of Arrival and Departure system
consists of electronic and paper records and will be used by DHS and
its components. The DHS/USCG--029 Notice of Arrival and Departure
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. The DHS/
USCG--029 Notice of Arrival and Departure 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, as well as
private corporate or other entities. The Secretary of Homeland
Security has exempted this system from the following provisions of
the Privacy Act, subject to the limitations set forth in 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(j)(2). Additionally, the Secretary of Homeland Security
has exempted this system from the following provisions of the
Privacy Act, subject to the limitations 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). 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. 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) 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 violation to the existence of the
investigation, and reveal investigative interest on the part
[[Page 45087]]
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 national 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 or subject of interest would alert
the subject to the nature or existence of an investigation, thereby
interfering with the related investigation and law enforcement
activities or national security matter.
(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: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-20758 Filed 8-28-09; 8:45 am]
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