[Federal Register Volume 74, Number 167 (Monday, August 31, 2009)]
[Rules and Regulations]
[Pages 45086-45087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20758]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0076]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security; U.S. Coast Guard--029 Notice of Arrival and 
Departure System

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security is issuing a final rule to 
amend its regulations to exempt portions of a Department of Homeland 
Security U.S. Coast Guard system of records entitled the ``Department 
of Homeland Security U.S. Coast Guard--029 Notice of Arrival and 
Departure System of Records'' from certain provisions of the Privacy 
Act. Specifically, the Department exempts portions of the Department of 
Homeland Security U.S. Coast Guard--029 Notice of Arrival and Departure 
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, 2009.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
David Roberts (202-475-3521), Privacy Officer, United States Coast 
Guard. For privacy issues contact: Mary Ellen Callahan (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) published a notice of 
proposed rulemaking in the Federal Register, 73 FR 75373, December 11, 
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 
DHS/U.S. Coast Guard (USCG)--029 Notice of Arrival and Departure 
system. The DHS/USCG--029 Notice of Arrival and Departure system of 
records notice was published concurrently in the Federal Register, 73 
FR 75442, December 11, 2008, and comments were invited on both the 
notice of proposed rulemaking and system of records notice. No comments 
were received.

Public Comments

    DHS received no comments on the notice of proposed rulemaking or 
system of records notice. DHS will implement the rulemaking as 
proposed.

List of Subjects in 6 CFR Part 5

    Privacy, Freedom of information.

0
For the reasons stated in the preamble, DHS amends 6 CFR chapter I as 
follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

0
1. The authority citation for Part 5 continues to read as follows:

    Authority: Public Law 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.


0
2. At the end of Appendix C to Part 5, add the following new paragraph 
``34'':

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

* * * * *
    34. The DHS/USCG--029 Notice of Arrival and Departure system 
consists of electronic and paper records and will be used by DHS and 
its components. The DHS/USCG--029 Notice of Arrival and Departure 
system is a repository of information held by DHS in connection with 
its several and varied missions and functions, including, but not 
limited to: The enforcement of civil and criminal laws; 
investigations, inquiries, and proceedings thereunder. The DHS/
USCG--029 Notice of Arrival and Departure system contains 
information that is collected by, on behalf of, in support of, or in 
cooperation with DHS and its components and may contain personally 
identifiable information collected by other Federal, State, local, 
tribal, foreign, or international government agencies, as well as 
private corporate or other entities. The Secretary of Homeland 
Security has exempted this system from the following provisions of 
the Privacy Act, subject to the limitations set forth in 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), 
(e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); (f), and (g) pursuant to 5 
U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security 
has exempted this system from the following provisions of the 
Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a 
(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) 
pursuant to 5 U.S.C. 552a(k)(2). 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. 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) and (4) (Accounting for Disclosures) 
because release of the accounting of disclosures could alert the 
subject of an investigation of an actual or potential criminal, 
civil, or regulatory violation to the existence of the 
investigation, and reveal investigative interest on the part

[[Page 45087]]

of DHS as well as the recipient agency. Disclosure of the accounting 
would therefore present a serious impediment to law enforcement 
efforts and/or efforts to preserve national security. Disclosure of 
the accounting would also permit the individual who is the subject 
of a record to impede the investigation, to tamper with witnesses or 
evidence, and to avoid detection or apprehension, which would 
undermine the entire investigative process.
    (b) From subsection (d) (Access to Records) because access to 
the records contained in this system of records could inform the 
subject of an investigation of an actual or potential criminal, 
civil, or regulatory violation, to the existence of the 
investigation, and reveal investigative interest on the part of DHS 
or another agency. Access to the records could permit the individual 
who is the subject of a record to impede the investigation, to 
tamper with witnesses or evidence, and to avoid detection or 
apprehension. Amendment of the records could interfere with ongoing 
investigations and law enforcement activities and would impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated. In addition, permitting access and 
amendment to such information could disclose security-sensitive 
information that could be detrimental to national security.
    (c) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of Federal law, the accuracy of information obtained or 
introduced occasionally may be unclear or the information may not be 
strictly relevant or necessary to a specific investigation. In the 
interests of effective law enforcement, it is appropriate to retain 
all information that may aid in establishing patterns of unlawful 
activity.
    (d) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from 
the subject of an investigation or subject of interest would alert 
the subject to the nature or existence of an investigation, thereby 
interfering with the related investigation and law enforcement 
activities or national security matter.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information would impede law enforcement in 
that it could compromise investigations by: Revealing the existence 
of an otherwise confidential investigation and thereby provide an 
opportunity for the subject of an investigation to conceal evidence, 
alter patterns of behavior, or take other actions that could thwart 
investigative efforts; reveal the identity of witnesses in 
investigations, thereby providing an opportunity for the subjects of 
the investigations or others to harass, intimidate, or otherwise 
interfere with the collection of evidence or other information from 
such witnesses; or reveal the identity of confidential informants, 
which would negatively affect the informant's usefulness in any 
ongoing or future investigations and discourage members of the 
public from cooperating as confidential informants in any future 
investigations.
    (f) From subsections (e)(4)(G), (H), and (I) (Agency 
Requirements), and (f) (Agency Rules) because portions of this 
system are exempt from the individual access provisions of 
subsection (d) for the reasons noted above, and therefore DHS is not 
required to establish requirements, rules, or procedures with 
respect to such access. Providing notice to individuals with respect 
to existence of records pertaining to them in the system of records 
or otherwise setting up procedures pursuant to which individuals may 
access and view records pertaining to themselves in the system would 
undermine investigative efforts and reveal the identities of 
witnesses, and potential witnesses, and confidential informants.
    (g) From subsection (e)(5) (Collection of Information) because 
in the collection of information for law enforcement purposes it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with (e)(5) would 
preclude DHS agents from using their investigative training and 
exercise of good judgment to both conduct and report on 
investigations.
    (h) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS' ability to obtain, serve, and 
issue subpoenas, warrants, and other law enforcement mechanisms that 
may be filed under seal, and could result in disclosure of 
investigative techniques, procedures, and evidence.
    (i) 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.

    Dated: August 20, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-20758 Filed 8-28-09; 8:45 am]
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