[Federal Register Volume 74, Number 121 (Thursday, June 25, 2009)]
[Proposed Rules]
[Pages 30241-30243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14908]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2009-0021]


Privacy Act of 1974: Implementation of Exemptions; United States 
Coast Guard--013 Marine Information for Safety and Law Enforcement 
(MISLE)

AGENCY: Privacy Office, DHS.

ACTION:  Notice of proposed rulemaking.

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SUMMARY:  The Department of Homeland Security (DHS) is giving 
concurrent notice of a revised and updated system of records pursuant 
to the Privacy Act of 1974 for the United States Coast Guard Marine 
Information for Safety and Law Enforcement system of records and this 
proposed rulemaking. In this proposed rulemaking, the Department 
proposes 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.

DATES:  Comments must be received on or before July 27, 2009.

[[Page 30242]]


ADDRESSES:  You may submit comments, identified by docket number DHS-
2009-0021, by one of the following methods:
    <bullet> Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Fax: 703-483-2999.
    <bullet> Mail: Mary Ellen Callahan, Chief Privacy Officer, 
Department of Homeland Security, Washington, DC 20528.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:  For general questions and privacy 
issues, please contact: Mary Ellen Callahan (703-235-0780), Chief 
Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION:
     Background: Pursuant to the savings clause in the Homeland 
Security Act of 2002, Public Law 107-296, Section 1512, 116 Stat. 2310 
(November 25, 2002), the Department of Homeland Security (DHS) and 
United States Coast Guard (USCG) have relied on preexisting Privacy Act 
systems of records notices for the collection and maintenance of 
records that concern DHS/USCG marine, safety and law enforcement 
information system records.
    As part of its efforts to streamline and consolidate its Privacy 
Act record systems, DHS/USCG is updating and reissuing a DHS/USCG 
system of records under the Privacy Act (5 U.S.C. 552a) for DHS/USCG 
marine, safety and law enforcement information system records. This 
will ensure that all organizational parts of USCG follow the same 
privacy rules for collecting and handling marine, safety and law 
enforcement information system records.
    In this notice of proposed rulemaking, DHS is now proposing to 
exempt Marine Information for Safety and Law Enforcement System, in 
part, from certain provisions of the Privacy Act.
    The Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States Government 
collects, maintains, uses, and disseminates personally identifiable 
information. The Privacy Act applies to information that is maintained 
in a ``system of records.'' A ``system of records'' is a group of any 
records under the control of an agency from which information is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. 
Individuals may request their own records that are maintained in a 
system of records in the possession or under the control of DHS by 
complying with DHS Privacy Act regulations, 6 CFR part 5.
    The Privacy Act requires each agency to publish in the Federal 
Register a description of the type and character of each system of 
records that the agency maintains, and the routine uses that are 
contained in each system in order to make agency record keeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals in finding such files within the agency.
    The Privacy Act allows government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for the Marine Information for Safety and Law Enforcement System. 
Some information in Marine Information for Safety and Law Enforcement 
System relates to official DHS national security, law enforcement, 
immigration, intelligence 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 preclude subjects of these activities from 
frustrating these processes; to avoid disclosure of activity 
techniques; to protect the identities and physical safety of 
confidential informants and law enforcement personnel; to ensure DHS's 
ability to obtain information from third parties and other sources; and 
to protect the privacy of third parties. Disclosure of information to 
the subject of the inquiry could also permit the subject to avoid 
detection or apprehension.
    The exemptions proposed here are standard law enforcement 
exemptions exercised by a large number of Federal law enforcement 
agencies. In appropriate circumstances, where 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.
    A notice of system of records for Marine Information for Safety and 
Law Enforcement System is also published in this issue of the Federal 
Register.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

    For the reasons stated in the preamble, DHS proposes to amend 
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:  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.

    2. Add at the end of Appendix C to Part 5, Exemption of Record 
Systems under the Privacy Act, the following new paragraph ``14'':


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

* * * * *
    14. The Department of Homeland Security/United States Coast 
Guard Marine Information for Safety and Law Enforcement system of 
records consists of electronic and paper records and will be used by 
DHS and its components. Marine Information for Safety and Law 
Enforcement 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; 
national security and intelligence activities. Marine Information 
for Safety and Law Enforcement 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. Pursuant to exemption 
5 U.S.C. 552a(j)(2) of the Privacy Act, portions of this system are 
exempt from 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(k)(2) of the Privacy Act, this system 
is exempt from the following provisions of the Privacy Act, subject 
to the limitations set forth in those subsections: 5 U.S.C. 552a 
(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (I), and (f). 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) 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

[[Page 30243]]

violation to the existence of the 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.
    (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 homeland 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 would alert the subject to the 
nature or existence of an investigation, thereby interfering with 
the related investigation and law enforcement activities.
    (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: June 18, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. E9-14908 Filed 6-24-09; 8:45 am]
BILLING CODE 4910-15-P