[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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