[Federal Register Volume 76, Number 93 (Friday, May 13, 2011)]
[Rules and Regulations]
[Pages 27847-27848]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11689]



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Rules and Regulations
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Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and 
Regulations

[[Page 27847]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0031]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/U.S. Coast Guard--008 Courts Martial Case Files 
System of Records

AGENCY: Privacy Office, DHS.

ACTION: Final rule.

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

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 titled, ``Department of 
Homeland Security/U.S. Coast Guard--008 Courts Martial Case Files 
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--008 Courts Martial Case Files 
System of Records 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 May 13, 2011.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Eileen Yenikaliotis (202-475-3530), Acting Privacy Officer, U.S. Coast 
Guard. For privacy issues please 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) U.S. Coast Guard (USCG) 
published a notice of proposed rulemaking (NPRM) in the Federal 
Register, 73 FR 64899, October 31, 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/USCG--008 Courts Martial 
Case Files System of Records. The DHS/USCG--008 Courts Martial Case 
Files system of records notice (SORN) was published concurrently in the 
Federal Register, 73 FR 64961, October 31, 2008. Comments were invited 
on both the NPRM and the SORN. Public comments were received on the 
NPRM. No comments were received on the SORN.

Public Comments

    DHS/USCG received two public comments on the NPRM. The first 
comment focused on the rights of an individual stating that ``in all 
criminal prosecutions, the accused shall enjoy the right to a speedy 
and public trial, by an impartial jury of the state and district where 
in the crime shall have been committed, which district shall have been 
previously ascertained by law, and to be informed of the nature and 
cause of the accusation; to be confronted with the witnesses against 
him; to have compulsory process for obtaining witnesses in his favor, 
and to have the assistance of counsel for his defense.'' This system 
will be used by the DHS/USCG to collect and maintain records on 
military and civilian employees of the DHS/USCG who are tried by, or 
involved with, a courts martial in the DHS/USCG. By issuing these 
exemptions, DHS/USCG is not abdicating its duty to conduct fair and 
impartial courts martial proceedings. Rather, these exemptions only 
apply to the Privacy Act and would not limit the ability of an 
individual to obtain records pursuant to other authorities, such as 
applicable rules for courts martial.
    The second public comment received focused on withholding 
information from a member of the DHS/USCG uniformed service as a result 
of the exemptions claimed in the proposed rule. Exemptions claimed in 
the proposed rule are neither designed nor intended, without reason, to 
withhold information from anyone. However, it is occasionally necessary 
and appropriate for the DHS/USCG to protect material compiled for law 
enforcement purposes, including some records pertaining to 
investigations, inquiries, and criminal proceedings, as well as 
national security and intelligence activities. No comments were 
received on the system of records notice. DHS 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. 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. 
Subpart B also issued under 5 U.S.C. 552a.

0
2. Add at the end of Appendix C to part 5, Exemption of Record Systems 
under the Privacy Act, paragraph 54 to read as follows:

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

* * * * *
    12. The DHS/USCG--008 Courts Martial Case Files System of 
Records consists of electronic and paper records and will be used by 
DHS/USCG. The DHS/USCG--008 Courts Martial Case Files System of 
Records is a repository of information held by DHS/USCG 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; and 
national security and intelligence activities. The DHS/USCG--008 
Courts Martial Case Files System of Records contains information 
that is collected by, on behalf of, in support of, or in cooperation 
with DHS/USCG and may contain personally identifiable information 
collected by other federal, state, local, tribal, foreign, or 
international government agencies. 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 (c)(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)(1) and (k)(2). Exemptions from these 
particular subsections are justified, on a case-

[[Page 27848]]

by-case basis to be determined at the time a request is made, for 
the following reasons:
    (a) From subsection (c)(3) and (c)(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 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), (e)(4)(H), and (e)(4)(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: April 19, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-11689 Filed 5-12-11; 8:45 am]
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