[Federal Register Volume 73, Number 95 (Thursday, May 15, 2008)]
[Proposed Rules]
[Pages 28066-28069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10897]


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DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 5

[Docket No. DHS-2007-0073]


Privacy Act of 1974: Implementation of Exemptions; Maritime 
Awareness Global Network (MAGNET)

AGENCY: Privacy Office, Office of the Secretary, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security 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's Maritime 
Awareness Global Network (MAGNET) system. In this proposed rulemaking, 
the Department proposes to exempt this system of records from one or 
more provisions of the Privacy Act because of criminal, civil, 
intelligence and administrative enforcement requirements.

DATES: Comments must be received on or before June 16, 2008.

ADDRESSES: You may submit comments, identified by DOCKET NUMBER DHS-
2007-0073 by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Facsimile: 1-866-466-5370.
     Mail: Hugo Teufel III, Chief Privacy Officer, Privacy 
Office, 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: Department of Homeland Security United 
States Coast Guard (MAGNET Executive Agent), Intelligence Division (CG-
26), 2100 2nd Street, SW., Washington, DC 20593-0001; Hugo Teufel III, 
Chief Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528; telephone 703-235-0780.

SUPPLEMENTARY INFORMATION: 

Background

    Elsewhere in today's Federal Register, the Department of Homeland 
Security (DHS) is publishing a Privacy Act system of records notice 
DHS/USCG-061 Maritime Awareness Global Network (MAGNET). These records 
were previously covered by a legacy system of records, Department of 
Transportation DOT/CG 642 System of Records Notice known as Joint 
Maritime Information Element, JMIE, Support System, JSS (67 FR 19475). 
When fully operational, MAGNET will replace and enhance JMIE/JSS by 
adding additional data sources, media storage, access capabilities, and 
infrastructure. MAGNET will provide rapid, near real-time data to the 
Coast Guard and other authorized organizations both within and outside 
DHS with a need to know the information.
    The information in MAGNET establishes Maritime Domain Awareness. 
Maritime Domain Awareness is the collection of as much information as 
possible about the maritime world. In other words, MAGNET establishes a 
full awareness of the entities (people, places, things) and their 
activities within the maritime industry. MAGNET collects the 
information and connects the information in order to fulfill this need.
    Coast Guard Intelligence (through MAGNET) will provide awareness to 
the field as well as to strategic planners by aggregating data from 
existing sources internal and external to the Coast Guard or DHS. 
MAGNET will correlate and provide the medium to display information 
such as ship registry, current ship position, crew background, 
passenger lists, port history, cargo, known criminal vessels, and 
suspect lists. Coast Guard Intelligence (CG-2) will serve as MAGNET's 
executive agent and will share appropriate aggregated data to other law 
enforcement and intelligence agencies.
    The Privacy Act also allows government agencies, as appropriate, to 
exempt certain records from the access and amendment provisions. Where 
an agency seeks to claim 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 by publication of this proposed 
rule.
    Accordingly, DHS proposes to exempt this system, in part, from 
certain provisions of the Privacy Act and to add that exemption to 
Appendix C to Part 5, DHS Systems of Records Exempt from the Privacy 
Act. Coast Guard needs these exemptions in order to protect information 
relating to authorized intelligence, counterterrorism, homeland 
security, and related law enforcement activities from disclosure to 
subjects of investigations and others who, by accessing or knowing this 
information, could interfere with those activities or otherwise place 
in jeopardy the national or homeland security. Specifically, the 
exemptions are necessary in order to prevent revealing information 
concerning intelligence, counterterrorism, homeland security, or 
related investigative efforts. Revealing such information to the 
subject or other individuals could reasonably be expected to compromise 
ongoing efforts of the Department to identify, understand, analyze, 
investigate, and counter the activities that threaten national or 
homeland security; compromise classified or other sensitive 
information; identify a confidential source or disclose information 
which would constitute an unwarranted invasion of another individual's 
personal privacy; reveal a sensitive intelligence or investigative 
technique or method, and interfere with intelligence or law enforcement 
analytic or investigative processes; or constitute a potential danger 
to the health or safety of intelligence, counterterrorism, homeland 
security, and law enforcement personnel, confidential sources and 
informants, or potential witnesses.
    The exemptions proposed here are standard law enforcement and 
national security exemptions exercised by a large number of federal law 
enforcement and intelligence agencies.
    Nonetheless, DHS will examine each separate 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 or national security purposes of the

[[Page 28067]]

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 rule is not a significant regulatory action under Executive 
Order 12866, ``Regulatory Planning and Review'' (as amended). 
Accordingly, this 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 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 rulemaking will 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 rulemaking will 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 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.

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 rulemaking is not a major regulatory 
action under the provisions of the EPCA.

List of Subjects in 6 CFR Part 5

    Freedom of information, Privacy, Sensitive information.

    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: 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.

    2. At the end of Appendix C to Part 5, add the following new 
section 6:

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    6. DHS/USCG-061, Maritime Awareness Global Network (MAGNET).
    (a) Pursuant to 5 U.S.C. 522a(j)(2), (k)(1), and (k)(2) this 
system of records is exempt from 5 U.S.C. 552a (c)(3) and (4), 
(d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), 
(H), and (I), e(5), e(8), e(12), (f), and (g). These exemptions 
apply only to the extent that information in this system is subject 
to exemption. Where compliance would not appear to interfere with or 
adversely affect the intelligence, counterterrorism, homeland 
security, and related law enforcement purposes of this system, the 
applicable exemption may be waived by DHS.
    (b) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) (Accounting of Certain Disclosures) 
because making available to a record subject the accounting of 
disclosures from records concerning him/her would specifically 
reveal any interest in the individual of an intelligence, 
counterterrorism, homeland security, or related investigative 
nature. Revealing this information could reasonably be expected to 
compromise ongoing efforts of the Department to identify, 
understand, analyze, investigate, and counter the activities of:
    (i) known or suspected terrorists and terrorist groups;
    (ii) groups or individuals known or believed to be assisting or 
associated with known or suspected terrorists or terrorist groups;
    (iii) individuals known, believed to be, or suspected of being 
engaged in activities constituting a threat to homeland security, 
including (1) activities which impact or concern the security, 
safety, and integrity of our international borders, including any 
illegal activities that either cross our borders or are otherwise in 
violation of the immigration or customs laws and regulations of the 
United States; (2) activities which could reasonably be expected to 
assist in the development or use of a weapon of mass effect; (3) 
activities meant to identify, create, or exploit the vulnerabilities 
of, or undermine, the ``key resources'' (as defined in section 2(9) 
of the Homeland Security Act of 2002) and ``critical 
infrastructure'' (as defined in 42 U.S.C. 5195c(c)) of the United 
States, including the cyber and national telecommunications 
infrastructure and the availability of a viable national security 
and emergency preparedness communications infrastructure; (4) 
activities detrimental to the security of transportation and 
transportation systems; (5) activities which violate or are 
suspected of violating the laws relating to counterfeiting of 
obligations and securities of the United States and other financial 
crimes, including access device fraud, financial institution fraud, 
identity theft, computer fraud; and computer-based attacks on our 
nation's financial, banking, and telecommunications infrastructure; 
(6) activities, not wholly conducted within the United States, which 
violate or are suspected of violating the laws which prohibit the 
production, transfer, or sale of narcotics or substances controlled 
in accordance with Title 21 of the United States Code, or those 
associated activities otherwise prohibited by Titles 21 and 46 of 
the United States Code; (7) activities which impact, concern, or 
otherwise threaten the safety and security of the President and Vice 
President, their families, heads of state, and other designated 
individuals; the White House, Vice President's residence, foreign 
missions, and other designated buildings within the United States; 
(8) activities which impact, concern, or otherwise threaten domestic 
maritime safety and security, maritime mobility and navigation, or 
the integrity of the domestic maritime environment; (9) activities 
which impact, concern, or otherwise threaten the national 
operational capability of the

[[Page 28068]]

Department to respond to natural and manmade major disasters and 
emergencies, including acts of terrorism; (10) activities involving 
the importation, possession, storage, development, or transportation 
of nuclear or radiological material without authorization or for use 
against the United States;
    (iv) foreign governments, organizations, or persons (foreign 
powers); and
    (v) individuals engaging in intelligence activities on behalf of 
a foreign power or terrorist group.
    Thus, by notifying the record subject that he/she is the focus 
of such efforts or interest on the part of DHS, or other agencies 
with whom DHS is cooperating and to whom the disclosures were made, 
this information could permit the record subject to take measures to 
impede or evade such efforts, including the taking of steps to 
deceive DHS personnel and deny them the ability to adequately assess 
relevant information and activities, and could inappropriately 
disclose to the record subject the sensitive methods and/or 
confidential sources used to acquire the relevant information 
against him/her. Moreover, where the record subject is the actual 
target of a law enforcement investigation, this information could 
permit him/her to take measures to impede the investigation, for 
example, by destroying evidence, intimidating potential witnesses, 
or avoiding detection or apprehension.
    (2) From subsection (c)(4) (Accounting for Disclosure, notice of 
dispute) because certain records in 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 those 
records, should not apply.
    (3) From subsections (d)(1), (2), (3), and (4) (Access to 
Records) because these provisions concern individual rights of 
access to and amendment of records (including the review of agency 
denials of either) contained in this system, which consists of 
intelligence, counterterrorism, homeland security, and related 
investigatory records concerning efforts of the Department, as 
described more fully in subsection (b)(1), above. Compliance with 
these provisions could inform or alert the subject of an 
intelligence, counterterrorism, homeland security, or investigatory 
effort undertaken on behalf of the Department, or by another agency 
with whom DHS is cooperating, of the fact and nature of such 
efforts, and/or the relevant intelligence, counterterrorism, 
homeland security, or investigatory interest of DHS and/or other 
intelligence, counterterrorism, or law enforcement agencies. 
Moreover, compliance could also compromise sensitive information 
either classified in the interest of national security, or which 
otherwise requires, as appropriate, safeguarding and protection from 
unauthorized disclosure; identify a confidential source or disclose 
information which would constitute an unwarranted invasion of 
another individual's personal privacy; reveal a sensitive 
intelligence or investigative technique or method, including 
interfering with intelligence or law enforcement investigative 
processes by permitting the destruction of evidence, improper 
influencing or intimidation of witnesses, fabrication of statements 
or testimony, and flight from detection or apprehension; or 
constitute a potential danger to the health or safety of 
intelligence, counterterrorism, homeland security, and law 
enforcement personnel, confidential sources and informants, and 
potential witnesses. Amendment of the records would interfere with 
ongoing intelligence, counterterrorism, homeland security, and law 
enforcement investigations and activities, including incident 
reporting and analysis activities, and impose an impossible 
administrative burden by requiring investigations, reports, and 
analyses to be continuously reinvestigated and revised.
    (4) From subsection (e)(1) (Relevant and Necessary) because it 
is not always possible for DHS to know in advance of its receipt the 
relevance and necessity of each piece of information it acquires in 
the course of an intelligence, counterterrorism, or investigatory 
effort undertaken on behalf of the Department, or by another agency 
with whom DHS is cooperating. In the context of the authorized 
intelligence, counterterrorism, and investigatory activities 
undertaken by DHS personnel, relevance and necessity are questions 
of analytic judgment and timing, such that what may appear relevant 
and necessary when acquired ultimately may be deemed unnecessary 
upon further analysis and evaluation. Similarly, in some situations, 
it is only after acquired information is collated, analyzed, and 
evaluated in light of other available evidence and information that 
its relevance and necessity can be established or made clear. 
Constraining the initial acquisition of information included within 
the MAGNET in accordance with the relevant and necessary requirement 
of subsection (e)(1) could discourage the appropriate receipt of and 
access to information which DHS and MAGNET are otherwise authorized 
to receive and possess under law, and thereby impede efforts to 
detect, deter, prevent, disrupt, or apprehend terrorists or 
terrorist groups, and/or respond to terrorist or other activities 
which threaten homeland security. Notwithstanding this claimed 
exemption, which would permit the acquisition and temporary 
maintenance of records whose relevance to the purpose of the MAGNET 
may be less than fully clear, DHS will only disclose such records 
after determining whether such disclosures are themselves consistent 
with the published MAGNET routine uses. Moreover, it should be noted 
that, as concerns the receipt by USCG, for intelligence purposes, of 
information in any record which identifies a U.S. Person, as defined 
in Executive Order 12333, as amended, such receipt, and any 
subsequent use or dissemination of that identifying information, is 
undertaken consistent with the procedures established and adhered to 
by USCG pursuant to that Executive Order. Specifically, USCG 
intelligence personnel may acquire information which identifies a 
particular U.S. Person, retain it within or disseminate it from 
MAGNET, as appropriate, only when it is determined that the 
personally identifying information is necessary for the conduct of 
USCG's functions, and otherwise falls into one of a limited number 
of authorized categories, each of which reflects discrete activities 
for which information on individuals would be utilized by the 
Department in the overall execution of its statutory mission.
    (5) 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.
    (6) 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.
    (7) From subsections (e) (4) (G), (H) and (I) (Access), and (f) 
(Agency Rules), inasmuch as it is unnecessary for the publication of 
rules and procedures contemplated therein since the MAGNET, pursuant 
to subsections (3), above, will be exempt from the underlying duties 
to provide to individuals notification about, access to, and the 
ability to amend or correct the information pertaining to them in, 
this system of records. Furthermore, to the extent that subsection 
(e)(4)(I) is construed to require more detailed disclosure than the 
information accompanying the system notice for MAGNET, as published 
in today's Federal Register, exemption from it is also necessary to 
protect the confidentiality, privacy, and physical safety of sources 
of information, as well as the methods for acquiring it. Finally, 
greater specificity concerning the description of categories of 
sources of properly classified records could also compromise or 
otherwise cause damage to the national or homeland security.
    (8) From subsection (e)(5) (Collection of Information) because 
many of the records in this system coming from other system 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 as current as 
possible. In addition, in the collection of

[[Page 28069]]

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.
    (9) 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 then not previously known.
    (10) From subsection (e)(12) (Matching Agreements) because 
requiring DHS to provide notice of alterations to existing matching 
agreements would impair DHS operations by indicating which data 
elements and information are valuable to DHS's analytical functions, 
thereby providing harmful disclosure of information to individuals 
who would seek to circumvent or interfere with DHS's missions.
    (11) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

Hugo Teufel III,
Chief Privacy Officer.

 [FR Doc. E8-10897 Filed 5-14-08; 8:45 am]
BILLING CODE 4410-10-P