Federal Register / Vol. 73, No. 190 / Tuesday, September 30, 2008 / Rules and Regulations 56927 

subjects of counterterrorism or law 

enforcement investigations to the fact of 

those investigations then not previously 

known. 

(10) From subsection (e)(12) (Matching 

Agreements) because requiring DHS to 

provide notice of alterations to existing 

matching agreements would impair DHS 

operations by indicating which data elements 

and information are valuable to DHS’s 

analytical functions, thereby providing 

harmful disclosure of information to 

individuals who would seek to circumvent or 

interfere with DHS’s missions. 

(11) From subsection (g) (Civil Remedies) 

to the extent that the system is exempt from 

other specific subsections of the Privacy Act. 

Hugo Teufel III, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E8–22606 Filed 9–29–08; 8:45 am] 

BILLING CODE 4410–10–P 

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. 

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 


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56928 Federal Register / Vol. 73, No. 190 / Tuesday, September 30, 2008 / Rules and Regulations 

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. 

■ 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 

■ 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. 

■ 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, 


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Federal Register / Vol. 73, No. 190 / Tuesday, September 30, 2008 / Rules and Regulations 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] 

BILLING CODE 4410–10–P 


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