[Federal Register Volume 62, Number 229 (Friday, November 28, 1997)]
[Proposed Rules]
[Pages 63304-63306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31171]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 10

[Docket No. OST-97-1472; Notice 97-12]
RIN: 2105-AC68


Privacy Act Implementation: Coast Guard's Marine Safety 
Information System

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: DOT proposes to amend its rules implementing the Privacy Act 
of 1974 to exempt from certain provisions of the Act the Coast Guard's 
Marine Safety Information System. Public comment is invited.

DATES: Comments are due December 29, 1997.

ADDRESSES: Comments should be addressed to Documentary Services 
Division, Attention: Docket Section, Room PL401, Docket OST-97-1472, 
Department of Transportation, C-55, Washington, DC 20590. Any person 
wishing acknowledgment that his/her comments have been received should 
include a self-addressed stamped postcard. Comments received will be 
available for public inspection and copying in the Documentary Services 
Division, Room PL401, Department of Transportation Building, 400 
Seventh Street, SW., Washington, DC, from 9:00 AM to 5:00 PM ET Monday 
through Friday except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Robert I. Ross, Office of the General 
Counsel, C-10, Department of Transportation, Washington, DC 20590, 
telephone (202) 366-9156. Fax (202) 366-9170.

SUPPLEMENTARY INFORMATION:

Background

    The Coast Guard's Marine Safety Information System (MSIS) collects 
selected information on commercial and/or documented vessels operating 
in US waters, and collects and manages the data needed to monitor the 
safety performance of maritime vessels and facilities, with which the 
Coast Guard comes into contact while performing its marine safety 
functions. It also monitors the identities of individuals and 
corporations that own or operate these

[[Page 63305]]

vessels, and, if appropriate, aids the Coast Guard to develop law 
enforcement actions against such vessels, facilities, individuals, and 
corporations.
    MSIS consolidates information from two other Coast Guard Privacy 
Act record systems: DOT/CG 561, Port Safety Reporting System 
(Individual Violation Histories), and DOT/CG 587, Investigation of 
Marine Safety Laws or Regulations. It also encompasses the automated, 
but not the manual, portions of DOT/C 591, Merchant Vessel 
Documentation System.
    Because of the capability to retrieve information by the names or 
other unique identifiers of individuals, MSIS is subject to the Privacy 
Act, which imposes many restrictions on the use and dissemination of 
information in the system. However, because MSIS can be used for law 
enforcement purposes, it is exempted from some of these restrictions.

Privacy Act Exemption

    All records in this system that fall within 5 U.S.C. 552a(k)(2) are 
exempt from the provisions of 5 U.S.C. 552a, subsections (c)(3), (d), 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f). However, should at 
any time Exemption (j)(2) be deemed inapplicable, then under Exemption 
(k)(2), if a person is denied any right, privilege, or benefit to which 
he or she would otherwise be entitled to by Federal law as a result of 
keeping this material, the material must be released to the subject of 
the record, unless doing so would reveal the identity of a confidential 
source.
    These records are exempt from subsection (c)(3) because the release 
of the accounting for disclosures made pursuant to subsection (b), 
including those permitted under the routine uses published for this 
system of records, would permit the subject of an investigation of an 
actual or potential criminal, civil, or regulatory violation to 
determine whether he or she is the subject or investigation, or to 
obtain valuable information concerning the nature of that 
investigation, and the information obtained, or the identity of 
witnesses and informants and would therefore present a serious 
impediment to law enforcement.
    These records are exempt from subsection (d) because access to 
information contained in this records system would inform the subject 
of an investigation of an actual or potential criminal, civil, or 
regulatory violation of the existence of that investigation, or the 
nature and scope of the information and evidence obtained as to his 
activities, or the identity of witnesses and informants. These factors 
would present a serious impediment to effective law enforcement because 
they could prevent the successful completion of an investigation, lead 
to the improper influencing of witnesses, the destruction of evidence, 
or disclose information which would constitute an unwarranted invasion 
of another individual's personal privacy.
    To require the Coast Guard to amend information thought to be 
incorrect, irrelevant or untimely, because of the nature of the 
information collected and the essential length of time it is 
maintained, would create an impossible administrative and investigative 
burden by forcing the agency to continuously retrograde its 
investigations attempting to resolve questions of accuracy, etc.
    These records are also exempt from subsections (e)(1), (e)(4)(G), 
(H), and (I) because of and to the extent that the records are exempt 
from the individual access provisions of subsection (d). The nature of 
the investigative activities is such that vital information about an 
individual can only be obtained from other persons who are familiar 
with such individual and his activities. In such investigations, it is 
not feasible to rely upon information furnished by the individual 
concerning his or her own activities.
    In a criminal investigation, the requirement that information be 
collected to the greatest extent practicable from the subject 
individual would present a serious impediment to law enforcement 
because the subject of the investigation would be placed on notice as 
to the existence of the investigation and would be able to avoid 
detection, influence witnesses improperly, destroy evidence, or 
fabricate testimony.
    In the collection of information for criminal law enforcement 
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 and 
the accuracy of such information can often only be determined in a 
court of law. The restriction of subsection (e)(5) would restrict the 
ability of trained investigators, intelligence analysts, and government 
attorneys in exercising their judgment in reporting on information and 
investigations and impede the development of criminal or other 
intelligence necessary for effective law enforcement.
    In the course of criminal and other law enforcement investigations, 
cases and matters, the Coast Guard will occasionally obtain information 
concerning actual or potential violations of law which are not strictly 
within its statutory or other authority or may compile information in 
the course of an investigation which may not be relevant to a specific 
inquiry. In the interests of effective law enforcement, it is necessary 
to retain such information in this system of records since it can aid 
in establishing pattern of criminal activity and can provide valuable 
leads for other law enforcement agencies.
    These records are exempt from subsection (f) because procedures for 
notice to an individual pursuant to subsection (f)(1) as to the 
existence of records pertaining to him or her dealing with an actual or 
potential criminal, civil, or regulatory investigation must be exempted 
because such notice to an individual would be detrimental to the 
successful conduction and/or completion of an investigation, pending or 
future. In addition, mere notice of the fact of an investigation could 
inform the subject or others that their activities are under, or may 
become the subject of, an investigation and could enable the subjects 
to avoid detection, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.
    Since an exemption is being claimed for subsection (d) of the Act 
the rules required pursuant to subsection (f)(2) through (5) are 
inapplicable to the system of records to the extent that this system of 
records is exempted from subsection (d).

Analysis of Regulatory Impacts

    This amendment is not a ``significant regulatory action'' within 
the meaning of Executive Order 12866. It is also not significant within 
the definition in DOT's Regulatory Policies and Procedures, 49 FR 11034 
(1979), in part because it does not involve any change in important 
Departmental policies. Because the economic impact should be minimal, 
further regulatory evaluation is not necessary. Moreover, I certify 
that this proposal will not have a significant economic impact on a 
substantial number of small entities, because the reporting 
requirements, themselves, are not changed.
    This proposal does not significantly affect the environment, and 
therefore an environmental impact statement is not required under the 
National Environmental Policy Act of 1969.
    The Department has analyzed this rule under the principles and 
criteria contained in Executive Order 12612 (``Federalism'') and has 
determined that the rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment. 
This rule does not impose any unfunded

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mandates as defined by the Unfunded Mandates Reform Act of 1995.
    Finally, the proposal does not contain any collection of 
information requirements, requiring review under the Paperwork 
Reduction Act of 1995.

List of Subjects in 49 CFR Part 10:

    Penalties, Privacy.

    Accordingly, DOT proposes to amend 49 CFR part 10 as follows:

PART 10--[AMENDED]

    1. The authority citation to part 10 would remain as follows:

    Authority: 5 U.S.C. 552a; 49 U.S.C. 322.

    2. Part II.A of the appendix to part 10 would be amended by adding 
a new paragraph 15, to read as follows:

Appendix to Part 10--Exemptions

* * * * *

Part II. Specific exemptions.

    A. * * *
* * * * *
    15. Marine Safety Information System, maintained by the 
Operations Systems Center, U.S. Coast Guard (DOT/CG 588). The 
purpose of this exemption is to prevent persons who are the subjects 
of criminal investigations from learning too early in the 
investigative process that they are subjects, what information there 
is in Coast Guard files that indicates that they may have committed 
unlawful conduct, and who provided such information.
* * * * *
    Issued in Washington, DC, on November 18, 1997.
Rodney E. Slater,
Secretary of Transportation.
[FR Doc. 97-31171 Filed 11-26-97; 8:45 am]
BILLING CODE 4910-62-P