[Federal Register Volume 73, Number 190 (Tuesday, September 30, 2008)]
[Rules and Regulations]
[Pages 56927-56929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22613]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2008-0082]
Privacy Act of 1974: Implementation of Exemptions; U.S. Coast
Guard Law Enforcement Information Database (LEIDB)/Pathfinder
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 United States Coast Guard Law Enforcement Information Data Base
(LEIDB/Pathfinder) (DHS/USCG-062) in the Federal Register. The
Department of Homeland Security is issuing a final rule to amend its
regulations to exempt portions of an existing system of records
entitled the USCG LEIDB/Pathfinder from certain provisions of the
Privacy Act. Specifically, the Department exempts portions of the
LEIDB/Pathfinder 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, Mike Payne (LEIDB/Pathfinder System Program
Officer), 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 28060, 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 (USCG) Law Enforcement Intelligence Data Base
(LEIDB/Pathfinder). The LEIDB system of records notice (SORN) was
published concurrently in the Federal Register, 73 FR 28135, May 15,
2008, and comments were invited on both the proposed rule and SORN. No
comments were received. Accordingly, the Department is adopting the
proposed rule as final. Concurrently in this issue of the Federal
Register, DHS is re-publishing the SORN for USCG LEIDB/Pathfinder.
This Final Rule is also updating the justification for exempting
LEIDB/Pathfinder from section (e)(5) of the Privacy Act. The prior
justification referenced the receipt of information from ``foreign
agency record systems.'' LEIDB/Pathfinder does not receive information
directly from any foreign source. Any information received from a
foreign source would be evaluated and input into a USCG message as
written by a USCG officer or crewman. The USCG drafted message may
ultimately arrive in LEIDB. The justification has been narrowed to more
accurately reflect this fact (see justifications below at Part 5, sub
6(b)(8)).
Lastly, a Privacy Impact Assessment for LEIDB/Pathfinder 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 record keeping, application, reporting, or other types of
information collection requirements.
Public Comments
USCG received no comments on the system of records notice or notice
of proposed rulemaking. Accordingly, DHS and USCG will implement the
rulemaking as proposed.
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
[[Page 56928]]
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
9 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
9. The Law Enforcement Information Data Base (LEIDB)/Pathfinder
is a historical repository of selected Coast Guard message traffic.
LEIDB/Pathfinder supports law enforcement intelligence activities.
LEIDB/Pathfinder users can query archived message traffic and link
relevant information across multiple data records within LEIDB/
Pathfinder. Users have system tools enabling the user to identify
potential relationships between information contained in otherwise
unrelated documents. These tools allow the analysts to build high
precision and low return queries, which minimize false hits and
maximize analyst productivity while working with unstructured,
unformatted, free test documents.
(a) Pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2) certain
records or information in the above mentioned system of records are
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), (e)(5), and (8); (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 for 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 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,
[[Page 56929]]
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 LEIDB 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 USCG 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 LEIDB may be less than
fully clear, DHS will only disclose such records after determining
whether such disclosures are themselves consistent with the
published LEIDB 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
LEIDB, 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), inasmuch
as it is unnecessary for the publication of rules and procedures
contemplated therein since the LEIDB, pursuant to subsections (2)
and (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 LEIDB, 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 contained in this system are derived from other
domestic and foreign sources, it is not possible for DHS to vouch
for those records' 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 subjects of
counterterrorism or law enforcement investigations to the fact of
those investigations then not previously known.
(10) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of
subsection (d). Access to, and amendment of, system records that are
not exempt or for which exemption is waived may be obtained under
procedures described in the related SORN or Subpart B of this Part.
(11) 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.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-22613 Filed 9-29-08; 8:45 am]
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