[Federal Register Volume 82, Number 135 (Monday, July 17, 2017)]
[Rules and Regulations]
[Pages 32613-32614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14845]



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 Rules and Regulations
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  Federal Register / Vol. 82, No. 135 / Monday, July 17, 2017 / Rules 
and Regulations  

[[Page 32613]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2016-0044]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/United States Coast Guard-029 Notice of Arrival and 
Departure System of Records

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS) is issuing a final 
rule to extend the exemptions from certain provisions of the Privacy 
Act to the updated and reissued system of records titled ``Department 
of Homeland Security/United States Coast Guard-029 Notice of Arrival 
and Departure System of Records.''

DATES: This final rule is effective July 17, 2017.

FOR FURTHER INFORMATION CONTACT: For general questions, please contact: 
Marilyn Scott-Perez, (202) 475-3515, Privacy Officer, Commandant (CG-
61), United States Coast Guard, 2703 Martin Luther King Jr. Ave. SE., 
Mail Stop 7710, Washington, DC 20593. For privacy questions, please 
contact: Jonathan R. Cantor, (202) 343-1717, Acting Chief Privacy 
Officer, Privacy Office, Department of Homeland Security, Washington, 
DC 20528-0655.

SUPPLEMENTARY INFORMATION:

Background

    The Department of Homeland Security (DHS) and the United States 
Coast Guard (USCG) are updating applicable regulations to exempt 
portions of a system of records from certain provisions of the Privacy 
Act. Specifically, this rule exempts portions of the ``DHS/USCG-029 
Notice of Arrival and Departure System of Records'' from one or more 
provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements, pursuant to 5 U.S.C. 
552a(j)(2) and (k)(2). Furthermore, to the extent certain categories of 
records are ingested from other systems, the exemptions applicable to 
the source systems will remain in effect.
    Concurrent with this document, DHS/USCG is updating and reissuing a 
system of records notice titled ``DHS/USCG-029 Notice of Arrival and 
Departure (NOAD) Systems of Records.'' The collection and maintenance 
of this information assists DHS/USCG in meeting its statutory 
obligation to assign priorities while conducting maritime safety and 
security missions in accordance with U.S. regulations.

Privacy Act

    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/USCG-029 Notice of Arrival and Departure System of Records. 
Some information may be used to support DHS national security or law 
enforcement activities. These exemptions are needed to protect 
information relating to DHS activities from disclosure to subjects or 
others related to these activities. Specifically, the exemptions are 
required to protect information relating to DHS/USCG law enforcement 
investigations from disclosure to subjects of investigations and others 
who could interfere with investigatory and law enforcement activities. 
The exemptions are required to preclude subjects of these activities 
from frustrating the investigative process; to avoid disclosure of 
investigative techniques; to protect the identities and physical safety 
of confidential informants and of law enforcement personnel; to ensure 
DHS's and other federal agencies' ability to obtain information from 
third parties and other sources; to protect the privacy of third 
parties; and to safeguard sensitive information. The exemptions also 
preclude the subject from using the information to avoid detection or 
apprehension.
    In appropriate circumstances, when compliance would not appear to 
interfere with or adversely affect the law enforcement purposes of this 
system, and the overall law enforcement process, the applicable 
exemptions may be waived on a case by case basis.
    DHS will not assert any exemption with respect to information 
maintained in the system that is collected from a person at the time of 
arrival or departure, if that person, or his or her agent, seeks access 
or amendment of such information. The DHS/USCG-029 Notice of Arrival 
and Departure System of Records Notice is also published in this issue 
of the Federal Register.

Public Comments

    DHS received one comment on the NPRM (80 FR 74018, Nov. 27, 2015) 
and one comment on the SORN (80 FR 74116, Nov. 27, 2015). The commenter 
expressed concern that DHS will exempt this database, which contains 
detailed, sensitive personal information, from the Privacy Act's well-
established safeguards, specifically the ability for individuals to 
access and amend their information to ensure accurate and reliable data 
is maintained and used in Government databases. DHS disagrees. First, 
this system is not exempt from the access and amendment provisions of 
the Privacy Act, thereby permitting individuals the ability to seek 
access and correction to data that is inaccurate. Second, this system 
collects and retains only information necessary to permit screening of 
personnel and vessels entering the United States. Third, these 
exemptions are narrowly tailored for use only when necessary to protect 
the enforcement of criminal laws or when part of investigatory material 
compiled for law enforcement purposes. Fourth, and finally, this 
narrower Final Rule replaces a previous broader Final Rule for this 
system (74 FR 45086, Aug. 31, 2009) that had originally exempted this 
system from numerous subsections of the Privacy Act, including the 
access and amendment provisions of subsection (d). Thus, DHS has in 
fact gone to great lengths to ensure and protect the Privacy Act's 
safeguards.
    The commenter also noted that DHS's proposal for broad exemptions 
for this system contravenes the intent of the Privacy Act by creating a 
large database of personal information with no accountability. DHS 
disagrees. This system collects and retains only information necessary 
to permit screening of personnel and vessels entering the United 
States. As a matter of general policy, DHS will not apply these 
exemptions unless disclosure to the subject individual could reveal

[[Page 32614]]

investigative interest on the part of DHS as well as the recipient 
agency and present an impediment to law enforcement efforts and/or 
efforts to preserve national security. This Final Rule replaces a 
previous Final Rule that was broader and permitted to DHS to exempt 
this system from more subsections of the Privacy Act's requirements.
    The commenter also noted that when an investigation is complete or 
has been made public, the information should no longer be exempt from 
the Privacy Act; individuals have a right to know about disclosures of 
their personal information held by the agency. DHS concurs in part with 
the comment and has adjusted the Final Rule and SORN accordingly. When 
an investigation is complete, the agency will make a case-by-case 
determination whether providing an accounting of disclosures would 
undermine the investigative process and present an impediment to law 
enforcement efforts and/or efforts to preserve national security. There 
may be circumstances in which information will continue to be exempted 
if the fact that an investigation occurred remains sensitive after 
completion. Nonetheless, excluding accounting of disclosures, 
individuals have the ability to request and be granted both access to 
and amendment of, if legally authorized, categories of records from 
this system contained on them pursuant to subsection (d) of the Privacy 
Act.
    Except as noted above, the Department will implement the rulemaking 
as proposed.

List of Subjects in 6 CFR Part 5

    Freedom of information, Privacy.

    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. Revise the authority citation for part 5 to read as follows:

    Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 301; 6 U.S.C. 
101 et seq.; E.O. 13392, 70 FR 75373, 3 CFR, 2005 Comp., p. 216.

0
2. In appendix C to part 5, revise paragraph 34 to read as follows:

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 of 
Records 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 of Records 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 there 
under. The DHS/USCG-029 Notice of Arrival and Departure System of 
Records 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.
    The Secretary of Homeland Security, pursuant to 5 U.S.C. 
552a(j)(2), exempted this system from the following provisions of 
the Privacy Act: Sections (c)(3), (e)(8), and (g) of the Privacy Act 
of 1974, as amended, as is necessary and appropriate to protect this 
information. Further, DHS has exempted section (c)(3) of the Privacy 
Act of 1974, as amended, pursuant to 5 U.S.C. 552a(k)(2), as is 
necessary and appropriate to protect this information.
    Exemptions from these particular subsections are justified, on a 
case-by-case basis to be determined at the time a request is made, 
for the following reasons:
    (a) From subsection (c)(3) (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 that investigation and 
reveal investigative interest on the part 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. When an investigation has been completed, 
information on disclosures made may continue to be exempted if the 
fact that an investigation occurred remains sensitive after 
completion.
    (b) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS's 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.
    (c) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.
* * * * *

    Dated: July 10, 2017.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2017-14845 Filed 7-14-17; 8:45 am]
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