[Federal Register Volume 73, Number 190 (Tuesday, September 30, 2008)]
[Rules and Regulations]
[Pages 56924-56927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22606]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2008-0080]
Privacy Act of 1974: Implementation of Exemptions; Maritime
Awareness Global Network (MAGNET)
AGENCY: Privacy Office, DHS.
ACTION: Final rule.
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SUMMARY: On May 15, 2008, the Department of Homeland Security
originally published the SORN and associated proposed rulemaking for
the Maritime Awareness Global Network (MAGNET) (DHS/USCG-061) in the
Federal Register. The Department of Homeland Security is issuing a
final rule to amend its regulations to exempt portions of a new system
of records entitled the ``United States Coast Guard's Maritime
Awareness Global Network (MAGNET)'' from certain provisions of the
Privacy Act. Specifically, the Department exempts portions of the
MAGNET 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, 2008.
FOR FURTHER INFORMATION CONTACT: Department of Homeland Security United
States Coast Guard (Mr. Mike Payne), 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
The Department of Homeland Security (DHS) published a notice of
proposed rulemaking in the Federal Register, 73 FR 28066 (15 May 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
United States Coast Guard's Maritime Awareness Global Network (MAGNET).
The MAGNET system of records notice (SORN) was published concurrently
in the Federal Register, 73 FR 28143 (15 May 2008), and comments were
invited on both the proposed rule and SORN. One comment was received
and the response to the comment is provided below. The Department is
adopting the proposed rule as final. Additionally, a Privacy Impact
Assessment for MAGNET is posted on the Department's privacy Web site.
(See http://www.dhs.gov/privacy and follow the link to ``Privacy Impact
Assessments'').
Pursuant to the requirements of the Regulatory Flexibility Act, 5
U.S.C. 601-612, DHS certifies that these regulations will not
significantly affect a substantial number of small entities. The final
rule imposes no duties or obligations on small entities. Further, in
accordance with the provisions of the Paperwork Reduction Act of 1995,
44 U.S.C. 3501, DHS has determined that this final rule would not
impose new recordkeeping, application, reporting, or other types of
information collection requirements.
Public Comments
USCG received one public comment. The comment received was
submitted under the incorrect docket number for the MAGNET NPRM and was
related to a different notice. No other comments were submitted.
Accordingly, the Department is adopting the proposed rule as final.
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
[[Page 56925]]
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.
0
For the reasons stated in the preamble, DHS amends Chapter I of Title
6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
0
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.
0
2. At the end of Appendix C to Part 5, add the following new paragraph
8 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
8. 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.
(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, law enforcement 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 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
[[Page 56926]]
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 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.
(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
[[Page 56927]]
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, Department of Homeland Security.
[FR Doc. E8-22606 Filed 9-29-08; 8:45 am]
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