[Federal Register Volume 73, Number 239 (Thursday, December 11, 2008)]
[Proposed Rules]
[Pages 75373-75376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29285]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket Number DHS-2008-0122]


Privacy Act of 1974: Implementation of Exemptions; United States 
Coast Guard Notice of Arrival and Departure System

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is proposing to amend its 
regulations to exempt portions of a system of records from certain 
provisions of the Privacy Act. Specifically, the Department proposes to

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exempt portions of the United States Coast Guard Notice of Arrival and 
Departure System from one or more provisions of the Privacy Act because 
of criminal, civil, and administrative enforcement requirements.

DATES: Written comments and related material must be submitted on or 
before January 12, 2009.

ADDRESSES: You may submit comments, identified by docket number DHS-
2008-0122 by one of the following methods:
    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
     Fax: 1-866-466-5370.
     Mail: Hugo Teufel III, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
David Roberts (202-475-3521), United States Coast Guard Privacy 
Officer, United States Coast Guard. For privacy issues please contact: 
Hugo Teufel III (703-235-0780), Chief Privacy Officer, Privacy Office, 
U.S. Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

Background

    The Department of Homeland Security (DHS), elsewhere in this 
edition of the Federal Register, published a Privacy Act system of 
records notice describing records for Notice of Arrival and Departure 
(NOAD). This information is maintained within the Ship Arrival 
Notification System (SANS), as well as other USCG systems charged with 
screening and vetting of vessels, primarily, but not exclusively, 
through Marine Information for Safety and Law Enforcement (MISLE, DOT/
CG 679, April 11, 2002, 67 FR 19612) and the Maritime Awareness Global 
Network (MAGNet, DHS/USCG-061, May 15, 2008, 73 FR 28143). SANS 
retrieves information by vessel and not by a personal identifier; 
however, USCG uses the information in other systems to conduct 
screening and vetting pursuant to its mission for protecting and 
securing the maritime sector.
    The information that is required to be collected and submitted 
through Electronic Notice of Arrival and Departure (eNOAD) can be found 
on routine arrival/departure documents that passengers and crewmembers 
must provide to DHS, when entering or departing the United States.
    This system, however, may contain records or information recompiled 
from or created from information contained in other systems of records, 
which are exempt from certain provisions of the Privacy Act. For these 
records or information only, in accordance with 5 U.S.C. 552a (j)(2), 
and (k)(2), DHS would also claim the original exemptions for these 
records or information from subsections (c)(3) and (4); (d)(1), (2), 
(3), and (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); (f), 
and (g) of the Privacy Act of 1974, as amended, as necessary and 
appropriate to protect such information. Moreover, DHS would add these 
exemptions to Appendix C to 6 CFR Part 5, DHS Systems of Records Exempt 
from the Privacy Act. Such exempt records or information may be law 
enforcement or national security investigation records, law enforcement 
activity and encounter records, or terrorist screening records.
    DHS needs these exemptions in order to protect information relating 
to law enforcement investigations from disclosure to subjects of 
investigations and others who could interfere with investigatory and 
law enforcement activities. Specifically, the exemptions are required 
to: Preclude subjects of investigations from frustrating the 
investigative process; avoid disclosure of investigative techniques; 
protect the identities and physical safety of confidential informants 
and of law enforcement personnel; ensure DHS's and other federal 
agencies' ability to obtain information from third parties and other 
sources; protect the privacy of third parties; and safeguard sensitive 
information. The exemptions proposed here are standard law enforcement 
exemptions exercised by a large number of federal law enforcement 
agencies.
    Nonetheless, DHS would examine each 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 purposes of the 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 proposed rule is not a significant regulatory action under 
Executive Order 12866, ``Regulatory Planning and Review'' (as amended). 
Accordingly, this proposed 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 proposed 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 proposed rule would 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 proposed rule would 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 proposed 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.

[[Page 75375]]

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

List of Subjects in 6 CFR Part 5

    Privacy, Freedom of information.

    For the reasons stated in the preamble, DHS proposes to amend 6 CFR 
chapter I 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. 
Subpart B also issued under 5 U.S.C. 552a.

    2. At the end of Appendix C to Part 5, add the following new 
paragraph 14:

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

* * * * *
    14. DHS/USCG-029, Notice of Arrival and Departure Information. A 
portion of the following system of records is 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), (5), and (8); (f), and (g); however, these 
exemptions apply only to the extent that information in this system 
of records is recompiled or is created from information contained in 
other systems of records subject to such exemptions pursuant to 5 
U.S.C. 552a(j)(2),and (k)(2). After conferring with the appropriate 
component or agency, DHS may waive applicable exemptions in 
appropriate circumstances and where it would not appear to interfere 
with or adversely affect the law enforcement purposes of the systems 
from which the information is recompiled or in which it is 
contained. Exemptions from the above particular subsections are 
justified, on a case-by-case basis to be determined at the time a 
request is made, when information in this system of records is 
recompiled or is created from information contained in other systems 
of records subject to exemptions for the following reasons:
    (a) From subsection (c)(3) (Accounting for Disclosure) because 
making available to a record subject the accounting of disclosures 
from records concerning him or her would specifically reveal any 
investigative interest in the individual. Revealing this information 
could reasonably be expected to compromise ongoing efforts to 
investigate a violation of U.S. law, including investigations of a 
known or suspected terrorist, by notifying the record subject that 
he or she is under investigation. This information could also permit 
the record subject to take measures to impede the investigation, 
e.g., destroy evidence, intimidate potential witnesses, or flee the 
area to avoid or impede the investigation.
    (b) From subsection (c)(4) (Accounting for Disclosure, notice of 
dispute) because portions of 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 the record, should 
not apply.
    (c) From subsections (d)(1), (2), (3), and (4) (Access to 
Records) because these provisions concern individual access to and 
amendment of certain records contained in this system, including law 
enforcement, counterterrorism, and investigatory records. Compliance 
with these provisions could alert the subject of an investigation to 
the fact and nature of the investigation, and/or the investigative 
interest of intelligence or law enforcement agencies; compromise 
sensitive information related to law enforcement, including matters 
bearing on national security; interfere with the overall law 
enforcement process by leading to the destruction of evidence, 
improper influencing of witnesses, fabrication of testimony, and/or 
flight of the subject; could identify a confidential source or 
disclose information which would constitute an unwarranted invasion 
of another's personal privacy; reveal a sensitive investigative or 
intelligence technique; or constitute a potential danger to the 
health or safety of law enforcement personnel, confidential 
informants, and witnesses. Amendment of these records would 
interfere with ongoing counterterrorism or law enforcement 
investigations and analysis activities and impose an impossible 
administrative burden by requiring investigations, analyses, and 
reports to be continuously reinvestigated and revised.
    (d) From subsection (e)(1) (Relevancy and Necessity of 
Information) because it is not always possible for DHS or other 
agencies to know in advance what information is relevant and 
necessary for it to complete screening of passengers and crew. 
Information relating to known or suspected terrorists is not always 
collected in a manner that permits immediate verification or 
determination of relevancy to a DHS purpose. For example, during the 
early stages of an investigation, it may not be possible to 
determine the immediate relevancy of information that is collected--
only upon later evaluation or association with further information, 
obtained subsequently, may it be possible to establish particular 
relevance to a law enforcement program. Lastly, this exemption is 
required because DHS and other agencies may not always know what 
information about an encounter with a known or suspected terrorist 
will be relevant to law enforcement for the purpose of conducting an 
operational response.
    (e) 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.
    (f) 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.
    (g) From subsections (e)(4)(G), (H) and (I) (Agency 
Requirements) because portions of this system are exempt from the 
access and amendment provisions of subsection (d).
    (h) From subsection (e)(5) (Collection of Information) because 
many of the records in this system coming from other systems 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.
    (i) 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 when not previously known.
    (j) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of 
subsection (d).

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    (k) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

    Dated: December 2, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. E8-29285 Filed 12-10-08; 8:45 am]
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