[Federal Register Volume 68, Number 159 (Monday, August 18, 2003)]
[Proposed Rules]
[Pages 49410-49414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20926]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1507
[Docket No. TSA-2003-15900]
RIN 1652-AA28
Privacy Act of 1974: Implementation of Exemption
AGENCY: Transportation Security Administration (TSA), DHS.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: TSA proposes to exempt several systems of records from one or
more provisions of the Privacy Act. Public comment is invited.
DATES: Submit comments by September 17, 2003.
[[Page 49411]]
ADDRESSES: Address your comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. You must identify the docket number TSA-
2003-15900 at the beginning of your comments, and you should submit two
copies of your comments. If you wish to receive confirmation that TSA
received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet at http://dms.dot.gov. Please be aware that anyone is able to search the
electronic form of all comments received into any of these dockets by
the name of the individual submitting the comment (or signing the
comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78) or you may visit http://dms.dot.gov. You may also
review the public docket containing comments in person at the Dockets
Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The Dockets Office is on the plaza level of the NASSIF
Building at the Department of Transportation at the above address.
FOR FURTHER INFORMATION CONTACT: Conrad Huygen, Privacy Act Officer,
TSA Office of Information Management Programs, TSA Headquarters, West
Tower, 4th Floor (412S), 601 S. 12th Street, Arlington, VA 22202-4220;
telephone (571) 227-1954; facsimile (571) 227-2912.
SUPPLEMENTARY INFORMATION:
Comments Invited
TSA invites interested persons to participate in this rulemaking by
submitting written comments, data, or views. We also invite comments
relating to the economic, environmental, energy, or federalism impacts
that might result from adopting the proposals in this document. The
most helpful comments reference a specific portion of the proposal,
explain the reason for any recommended change, and include supporting
data. See ADDRESSES above for information on how to submit comments.
We will file in the docket all comments we receive, as well as a
report summarizing each substantive public contact with TSA personnel
concerning this rulemaking. The docket is available for public
inspection before and after the comment closing date.
We will consider all comments we receive on or before the closing
date for comments. We will consider comments filed late if it is
possible to do so without incurring expense or delay. We may change
this rulemaking in light of the comments we receive.
If you want TSA to acknowledge receipt of your comments on this
rulemaking, include with your comments a self-addressed, stamped
postcard on which the docket number appears. We will stamp the date on
the postcard and mail it to you.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) web page (http://dms.dot.gov/search);
(2) Accessing the Government Printing Office's web page at http://www.access.gpo.gov/su_docs/aces/aces140.html; or
(3) Visiting the TSA's Law and Policy web page at http://www.tsa.dot.gov/public/index.jsp.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Background
Prior to March 1, 2003, TSA was an operating administration within
the Department of Transportation (DOT). While part of DOT, TSA
established several Privacy Act systems of records. Under DOT practice,
DOT identified those TSA systems of records that are exempt from one or
more provisions of the Privacy Act (pursuant to 5 U.S.C. 552a(j) or (k)
both) in a system notice published in the Federal Register and in an
appendix to DOT's Privacy Act regulations (49 CFR part 10, Appendix).
On December 24, 2002, DOT published a proposed rule exempting three TSA
systems of records from several provisions of the Privacy Act. See 67
FR 78403, Dec. 24, 2002.
As of March 1, 2003, TSA transferred to the Department of Homeland
Security (DHS) and is now republishing the exemptions proposed on
December 24, 2002, for its three systems of records now designated as
DHS/TSA 001, 002, and 004. TSA also is proposing to exempt DHS/TSA 001
from an additional provision of the Privacy Act. In addition, TSA
proposes to exempt five new systems of records from one or more
provisions of the Privacy Act.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that TSA consider the impact of paperwork and other information
collection burdens imposed on the public. We have determined that there
are no current or new information collection requirements associated
with this proposed rule.
Analysis of Regulatory Impacts
This proposal is not a ``significant regulatory action'' within the
meaning of Executive Order 12886. Because the economic impact should be
minimal, further regulatory evaluation is not necessary. Moreover, I
certify that this proposal would not have a significant economic impact
on a substantial number of small entities, because the reporting
requirements themselves are not changed and because it applies only to
information on individuals.
Unfunded Mandates
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. UMRA requires a written statement
of economic and regulatory alternatives for proposed and final rules
that contain Federal mandates. A ``Federal mandate'' is a new or
additional enforceable duty, imposed on any State, local, or tribal
government, or the private sector. If any Federal mandate causes those
entities to spend, in aggregate, $100 million or more in any one year
the UMRA analysis is required. This proposal would not impose Federal
mandates on any State, local, or tribal government or the private
sector.
Executive Order 13132, Federalism
TSA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action would 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 would not have federalism implications.
Environmental Analysis
TSA 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.
Energy Impact
The energy impact of this document has been assessed in accordance
with the Energy Policy and Conservation Act
[[Page 49412]]
(EPCA) Public Law 94-163, as amended (42 U.S.C. 6362). We have
determined that this rulemaking is not a major regulatory action under
the provisions of the EPCA.
List of Subjects in 49 CFR part 1507
Privacy.
The Proposed Amendment
In consideration of the foregoing, the Transportation Security
Administration proposes to amend Chapter XII of Title 49, Code of
Federal Regulations, as follows:
1. Add a part 1507 to read as follows:
PART 1507 PRIVACY ACT--EXEMPTIONS
Sec.
1507.1 Scope.
1507.3 Exemptions.
Authority: 49 U.S.C. 114(l)(1), 40113, 5 U.S.C. 552a(k)(1)-
(k)(2).
Sec. 1507.1 Scope.
This part implements provisions of the Privacy Act of 1974 that
permit TSA to exempt any system of records within the agency from
certain requirements of the Act. The procedures governing access to,
and correction of, records in a TSA system of records are set forth in
6 CFR part 5, subpart B.
Sec. 1507.3 Exemptions.
The following TSA systems of records are exempt from certain
provisions of the Privacy Act of 1974 pursuant to 5 U.S.C. 552a(j),
(k), or both as set forth below. During the course of normal agency
functions, exempt materials from one system of records may become part
of one or more other systems of records. To the extent that any portion
of a system of records becomes part of another Privacy Act system of
records, TSA hereby claims the same exemptions as were claimed in the
original primary system of which they are a part and claims any
additional exemptions in accordance with this rule.
(a) Transportation Security Enforcement Record System (DHS/TSA
001). The Transportation Security Enforcement Record System (TSERS)
(DHS/TSA 001) enables TSA to maintain a system of records related to
the screening of passengers and property and they may be used to
identify, review, analyze, investigate, and prosecute violations or
potential violations of transportation security laws. Pursuant to
exemptions (k)(1) and (k)(2) of the Privacy Act, DHS/TSA 001 is exempt
from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
Exemptions from the particular subsections are justified for the
following reasons:
(1) 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 the investigation and reveal
investigative interest on the part of the Transportation Security
Administration as well as the recipient agency. Disclosure of the
accounting would therefore present a serious impediment to
transportation security law enforcement efforts and 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
and avoid detection or apprehension, which undermines the entire
system.
(2) 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 the Transportation Security
Administration as well as the recipient agency. Access to the records
would permit the individual who is the subject of a record to impede
the investigation and avoid detection or apprehension. Amendment of the
records would interfere with ongoing investigations and law enforcement
activities and impose an impossible administrative burden by requiring
investigations to be continuously reinvestigated. The information
contained in the system may also include properly classified
information, the release of which would pose a threat to national
defense and/or foreign policy. In addition, permitting access and
amendment to such information also could disclose security-sensitive
information that could be detrimental to transportation security.
(3) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of investigations into potential violations of
transportation security laws, 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 enforcement of transportation security laws, it
is appropriate to retain all information that may aid in establishing
patterns of unlawful activity.
(4) From subsections (e)(4)(G), (H) and (I) (Agency Requirements),
and (f) (Agency Rules), because this system is exempt from the access
provisions of subsection (d).
(b) Transportation Workers Employment Investigations System (DHS/
TSA 002). The Transportation Workers Employment Investigations System
(TWEI) (DHS/TSA 002) enables TSA to facilitate the performance of
employment. Pursuant to exemptions (k)(1) and (k)(2) of the Privacy
Act, DHS/TSA 002 is exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1),
(e)(4)(G), (H) and (I), and (f). Exemptions from the particular
subsections are justified for the following reasons:
(1) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could reveal investigative
interest on the part of the recipient agency that obtained the record
pursuant to a routine use. Disclosure of the accounting could therefore
present a serious impediment to law enforcement efforts on the part of
the recipient agency, as the individual who is the subject of a record
would learn of third-agency investigative interests and thereby avoid
detection or apprehension.
(2) From subsection (d) (Access to Records) because access to the
records contained in this system could reveal investigative techniques
and procedures in the transportation workers employment investigation
process, as well as the nature and scope of the employment
investigation, the disclosure of which could enable individuals to
circumvent agency regulations or statutes and obtain access to
sensitive information and restricted areas in the transportation
industry. The information contained in the system might include
properly classified information, the release of which would pose a
threat to national defense and/or foreign policy. In addition,
permitting access and amendment to such information could reveal
sensitive security information protected pursuant to 49 U.S.C. 114(s),
the disclosure of which could be detrimental to the security of
transportation.
(3) From subsection (e)(1) (Relevancy and Necessity of Information)
because third agency records obtained or made available to TSA during
the course of an employment investigation may occasionally contain
information that is not strictly relevant or necessary to a specific
employment investigation. In the interests of administering an
effective and comprehensive transportation worker employment
investigation program, it is appropriate and necessary for the
Transportation Security Administration to retain all
[[Page 49413]]
such information that may aid in that process.
(4) From subsections (e)(4)(G), (H), and (I) (Agency Requirements),
and (f) (Agency Rules), because this system is exempt from the access
provisions of subsection (d).
(c) Personnel Background Investigation File System (DHS/TSA 004).
DHS/TSA 004 enables TSA to maintain investigative and background
material used to make suitability and eligibility determinations
regarding current and former TSA employees, applicants for TSA
employment, and TSA contract employees. Pursuant to exemption (k)(5) of
the Privacy Act, the Personnel Background Investigation File System is
exempt from 5 U.S.C. 552a(c)(3) (Accounting for Disclosures) and (d)
(Access to Records). Exemptions from the particular subsections are
justified because this system contains investigatory material compiled
solely for determining suitability, eligibility, and qualifications for
Federal civilian employment. To the extent that the disclosure of
material would reveal the identity of a source who furnished
information to the Government under an express promise that the
identity of the source would be held in confidence, or, prior to
September 27, 1975, under an implied promise that the identity of the
source would be held in confidence, the applicability of exemption
(k)(5) will be required to honor promises of confidentiality should the
data subject request access to or amendment of the record, or access to
the accounting of disclosures of the record.
(d) Internal Investigation Record System (DOT/TSA 005). The
Internal Investigation Record System (IIRS) (DOT/TSA 005) contains
records of internal investigations for all modes of transportation for
which TSA has security-related duties. This system covers information
regarding investigations of allegations or appearances of misconduct of
current or former TSA employees or contractors and provides support for
any adverse action that may occur as a result of the findings of the
investigation. Pursuant to exemptions (k)(1) and (k)(2) of the Privacy
Act, DOT/TSA 005 is exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1),
(e)(4)(G), (H) and (I), and (f). Exemptions from the particular
subsections are justified for the following reasons:
(1) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could reveal investigative
interest on the part of the recipient agency that obtained the record
pursuant to a routine use. Disclosure of the accounting could therefore
present a serious impediment to law enforcement efforts on the part of
the recipient agency, as the individual who is the subject of a record
would learn of third-agency investigative interests and thereby avoid
detection or apprehension.
(2) From subsection (d) (Access to Records) because access to the
records contained in this system could reveal investigative techniques
and procedures of the Office of Internal Affairs and Program Review, as
well as the nature and scope of the investigation, the disclosure of
which could enable individuals to circumvent agency regulations or
statutes. The information contained in the system might include
properly classified information, the release of which would pose a
threat to national defense and/or foreign policy. In addition,
permitting access and amendment to such information could reveal
sensitive security information protected pursuant to 49 U.S.C. 114(s),
the disclosure of which could be detrimental to the security of
transportation.
(3) From subsection (e)(1) (Relevancy and Necessity of Information)
because third agency records obtained or made available to TSA during
the course of an investigation may occasionally contain information
that is not strictly relevant or necessary to a specific investigation.
In the interests of administering an effective and comprehensive
investigation program, it is appropriate and necessary for the
Transportation Security Administration to retain all such information
that may aid in that process.
(4) From subsections (e)(4)(G), (H) and (I) (Agency Requirements),
and (f) (Agency Rules), because this system is exempt from the access
provisions of subsection (d).
(e) Correspondence and Matters Tracking Records (DOT/TSA 006). The
Correspondence and Matters Tracking Records (CMTR) (DOT/TSA 006) system
allows TSA to manage, track, retrieve, and respond to incoming
correspondence, inquiries, claims and other matters presented to TSA
for disposition, and to monitor the assignment, disposition and status
of such matters. This system covers information coming into TSA from
individuals as well as information recorded by TSA employees in the
performance of their duties. Pursuant to exemptions (k)(1) and (k)(2)
of the Privacy Act, DOT/TSA 006 is exempt from 5 U.S.C. 552a(c)(3),
(d), (e)(1), (e)(4)(G), (H) and (I), and (f). Exemptions from the
particular subsections are justified for the following reasons:
(1) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could reveal investigative
interest on the part of the recipient agency that obtained the record
pursuant to a routine use. Disclosure of the accounting could therefore
present a serious impediment to law enforcement efforts on the part of
the recipient agency, as the individual who is the subject of a record
would learn of third-agency investigative interests and thereby avoid
detection or apprehension.
(2) From subsection (d) (Access to Records) because access to the
records contained in this system could reveal investigative interest on
the part of TSA or other agency and the nature of that interest, the
disclosure of which could enable individuals to circumvent agency
regulations or statutes. The information contained in the system might
include properly classified information, the release of which would
pose a threat to national defense and/or foreign policy. In addition,
permitting access and amendment to such information could reveal
sensitive security information protected pursuant to 49 U.S.C. 114(s),
the disclosure of which could be detrimental to the security of
transportation.
(3) From subsection (e)(1) (Relevancy and Necessity of Information)
because third agency records obtained or made available to TSA during
the course of an investigation may occasionally contain information
that is not strictly relevant or necessary to a specific investigation.
In the interests of administering an effective and comprehensive
investigation program, it is appropriate and necessary for the
Transportation Security Administration to retain all such information
that may aid in that process.
(4) From subsections (e)(4)(G), (H) and (I) (Agency Requirements),
and (f) (Agency Rules), because this system is exempt from the access
provisions of subsection (d).
(f) Freedom of Information and Privacy Act Records (DHS/TSA 007).
The Freedom of Information (FOIA) and Privacy Act (PA) Record System
(DHS/TSA 007) system enables TSA to maintain records that will assist
in processing access requests and administrative appeals under the FOIA
and access and amendment requests and appeals under the PA; participate
in associated litigation; and assist TSA in carrying out any other
responsibilities under the FOIA and PA. Pursuant to exemptions (k)(1)
and (k)(2) of the Privacy Act, Freedom of Information and Privacy Act
Records are exempt
[[Page 49414]]
from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could reveal investigative
interest on the part of the recipient agency that obtained the record
pursuant to a routine use. Disclosure of the accounting could therefore
present a serious impediment to law enforcement efforts on the part of
the recipient agency, as the individual who is the subject of a record
would learn of third-agency investigative interests and thereby avoid
detection or apprehension.
(2) From subsection (d) (Access to Records) because access to the
records contained in this system could reveal investigative interest on
the part of TSA or other agency and the nature of that interest, the
disclosure of which could enable individuals to circumvent agency
regulations or statutes. The information contained in the system might
include properly classified information, the release of which would
pose a threat to national defense and/or foreign policy. In addition,
permitting access and amendment to such information could reveal
sensitive security information protected pursuant to 49 U.S.C. 114(s),
the disclosure of which could be detrimental to the security of
transportation.
(3) From subsection (e)(1) (Relevancy and Necessity of Information)
because third agency records obtained or made available to TSA during
the course of an investigation may occasionally contain information
that is not strictly relevant or necessary to a specific investigation.
In the interests of administering an effective and comprehensive
investigation program, it is appropriate and necessary for the
Transportation Security Administration to retain all such information
that may aid in that process.
(4) From subsections (e)(4)(G), (H) and (I) (Agency Requirements),
and (f) (Agency Rules), because this system is exempt from the access
provisions of subsection (d).
(g) General Legal Records System (DHS/TSA 009). The General Legal
Records (GLR) System (DHS/TSA 009) enables TSA to maintain records that
will assist attorneys to perform their functions within the office of
Chief Counsel, to include providing legal advice, responding to claims
filed by employees and others, and assisting in litigation and in the
settlement of claims. Pursuant to exemptions (k)(1) and (k)(2) of the
Privacy Act, DHS/TSA 009 is exempt from 5 U.S.C. 552a(c)(3), (d),
(e)(1), (e)(4)(G), (H) and (I), and (f). Exemptions from the particular
subsections are justified for the following reasons:
(1) From subsection (c)(3) (Accounting for Disclosures) because
release of the accounting of disclosures could reveal investigative
interest on the part of the recipient agency that obtained the record
pursuant to a routine use. Disclosure of the accounting could therefore
present a serious impediment to law enforcement efforts on the part of
the recipient agency, as the individual who is the subject of a record
would learn of third-agency investigative interests and thereby avoid
detection or apprehension.
(2) From subsection (d) (Access to Records) because access to the
records contained in this system could reveal investigative interest on
the part of TSA or other agency and the nature of that interest, the
disclosure of which could enable individuals to circumvent agency
regulations or statutes. The information contained in the system might
include properly classified information, the release of which would
pose a threat to national defense and/or foreign policy. In addition,
permitting access and amendment to such information could reveal
sensitive security information protected pursuant to 49 U.S.C. 114(s),
the disclosure of which could be detrimental to the security of
transportation.
(3) From subsection (e)(1) (Relevancy and Necessity of Information)
because third agency records obtained or made available to TSA during
the course of an investigation may occasionally contain information
that is not strictly relevant or necessary to a specific investigation.
In the interests of administering an effective and comprehensive
investigation program, it is appropriate and necessary for the
Transportation Security Administration to retain all such information
that may aid in that process.
(4) From subsections (e)(4)(G), (H) and (I) (Agency Requirements),
and (f) (Agency Rules), because this system is exempt from the access
provisions of subsection (d).
(h) Federal Flight Deck Officer Records System (DHS/TSA 013). The
Federal Flight Deck Officer Record System (FFDORS) enables TSA to
maintain a system of records documenting the application, selection,
training, and requalification of pilots deputized by TSA to perform the
duties of a Federal Flight Deck Officer (FFDO). Pursuant to exemptions
(k)(1), (k)(2), and (k)(6) of the Privacy Act, DHS/TSA 013 is exempt
from 5 U.S.C. 552a(c)(3), (d), and (e)(1). Exemptions from the
particular subsections are justified for the following reasons:
(1) From (c)(3) (Accounting of Certain Disclosures) and (d) (Access
to Records), because access to the accounting of disclosures in this
system could reveal the identity of a confidential source that provided
information during the background check process. Without the ability to
protect the identity of a confidential source, the agency's ability to
gather pertinent information about candidates for the program may be
limited. In addition, the system might contain information that is
properly classified, the release of which would pose a threat to
national security and/or foreign policy, or information the disclosure
of which could be detrimental to the security of transportation
pursuant to 49 U.S.C. 114(s). Finally, the agency must be able to
protect against access to testing or examination material as release of
this material could compromise the effectiveness of the testing and
examination procedure itself. The examination material contained in
this system is so similar in form and content to the examination
material used to determine individual qualifications for the
appointment or promotion of TSA law enforcement officers, that release
of the material would compromise the objectivity or fairness of the
testing or examination process of those TSA employees.
(2) From (e)(1) (Relevancy and Necessity of Information), because
information obtained or made available to TSA from other agencies and
other sources during the evaluation of an individual's suitability for
an FFDO position may occasionally include information that is not
strictly relevant or necessary to the specific determination regarding
that individual. In the interests of effective program administration,
it is appropriate and necessary for TSA to collect all such information
that may aid in the FFDO selection process.
Issued in Arlington, Virginia, on August 8, 2003.
Susan T. Tracey,
Deputy Chief Administrative Officer.
[FR Doc. 03-20926 Filed 8-15-03; 8:45 am]
BILLING CODE 4910-62-P