[Federal Register Volume 72, Number 163 (Thursday, August 23, 2007)]
[Proposed Rules]
[Pages 48397-48400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15963]
Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 /
Proposed Rules
[[Page 48397]]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1507
[Docket No. TSA-2007-28972]
RIN 1652-AA48
Privacy Act of 1974: Implementation of Exemptions; Secure Flight
Records
AGENCY: Transportation Security Administration, DHS.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Transportation Security Administration (TSA) is proposing
to amend the Transportation Security regulations to exempt a new system
of records from several provisions of the Privacy Act. Secure Flight
Records (DHS/TSA 019) will include records used as a part of a
passenger watch list matching program known as Secure Flight. The
Secure Flight program implements a mandate of the Intelligence Reform
and Terrorism Prevention Act of 2004 (IRTPA) (Pub. L. 108-458, 118
Stat. 3638, Dec. 17, 2004) and is consistent with TSA's authority under
the Aviation and Transportation Security Act (ATSA). Section 4012(a)(1)
of the IRTPA requires TSA to assume from air carriers the comparison of
passenger information for domestic flights to the consolidated and
integrated terrorist watch list maintained by the Federal Government.
Further, Section 4012(a)(2) of IRTPA similarly requires the DHS to
compare passenger information for international flights to and from the
United States against the consolidated and integrated terrorist watch
list before departure of such flights. Under the Secure Flight program,
TSA would assume the current watch list matching function to the No Fly
and Selectee from aircraft operators. TSA is proposing exemptions for
DHS/TSA 019 to the extent necessary to protect the integrity of
investigatory information that may be included in the system of
records.
DATES: Submit comments by September 24, 2007.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, using any one of the following methods:
Comments Filed Electronically: You may submit comments through the
docket Web site at http://dms.dot.gov. You also may submit comments
through the Federal eRulemaking portal at http://www.regulations.gov.
Comments Submitted by Mail, Fax, or In Person: Address or deliver
your written, signed comments to the Docket Management System at U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC
20590; Fax: 202-493-2251.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: Peter Pietra, Director, Privacy Policy
and Compliance, TSA-36, Transportation Security Administration, 601
South 12th Street, Arlington, VA 22202-4220; facsimile (571) 227-1400;
e-mail [email protected]; Hugo Teufel III (703-235-0780), Chief
Privacy Officer, Privacy Office, U.S. Department of Homeland Security,
Washington, DC 20528, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Comments Invited
TSA invites interested persons to participate in this rulemaking by
submitting written comments, data, or opinions. We also invite comments
relating to the economic, environmental, energy, or federalism impacts
that might result from this rulemaking action. See ADDRESSES above for
information on where to submit comments.
With each comment, please include your name and address, identify
the docket number at the beginning of your comments, and give the
reason for each comment. The most helpful comments reference a specific
portion of the rulemaking, explain the reason for any recommended
change, and include supporting data. You may submit comments and
material electronically, in person, by mail, or fax as provided under
ADDRESSES, but please submit your comments and material by only one
means. If you submit comments by mail or delivery, submit them in two
copies, in an unbound format, no larger than 8.5 by 11 inches, suitable
for copying and electronic filing.
If you want TSA to acknowledge receipt of comments submitted by
mail, 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.
TSA will file in the public docket all comments received by TSA,
except for comments containing confidential information and sensitive
security information.\1\ TSA will consider all comments received on or
before the closing date for comments and will consider comments filed
late to the extent practicable. The docket is available for public
inspection before and after the comment closing date.
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\1\ ``Sensitive Security Information'' or ``SSI'' is information
obtained or developed in the conduct of security activities, the
disclosure of which would constitute an unwarranted invasion of
privacy, reveal trade secrets or privileged or confidential
information, or be detrimental to the security of transportation.
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive
Security Information (SSI) Submitted in Public Comments
Do not submit comments that include trade secrets, confidential
commercial or financial information, or SSI to the public regulatory
docket. Please submit such comments separately from other comments on
the rulemaking. Comments containing this type of information should be
appropriately marked as containing such information and submitted by
mail to the address listed in the FOR FURTHER INFORMATION CONTACT
section.
Upon receipt of such comments, TSA will not place the comments in
the public docket and will handle them in accordance with applicable
safeguards and restrictions on access. TSA will hold them in a separate
file to which the public does not have access, and place a note in the
public docket that TSA has received such materials from the commenter.
If TSA receives a request to examine or copy this information, TSA will
treat it as any other request under the Freedom of Information Act
(FOIA) (5 U.S.C. 552) and the Department of Homeland Security's (DHS')
FOIA regulation found in 6 CFR part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to search the electronic form
of all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, or advocacy group,
etc.). You may review the applicable Privacy Act Statement published in
the Federal Register on April 11, 2000 (65 FR 19477), or you may visit
http://dms.dot.gov.
You may review the comments in the public docket by visiting the
Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. The Dockets Office is located in the West Building
Ground Floor, Room W12-140, at the Department of Transportation address
previously provided under ADDRESSES. Also, you may review public
dockets on the Internet at http://dms.dot.gov.
[[Page 48398]]
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.gpoaccess.gov/fr/index.html; or
(3) Visiting TSA's Security Regulations Web page at http://www.tsa.gov and accessing the link for ``Research Center'' at the top
of the page.
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.
Abbreviations and Terms Used in This Document
DHS--Department of Homeland Security.
FBI--Federal Bureau of Investigation.
TSA--Transportation Security Administration.
Background
In order to begin the Secure Flight program, Transportation
Security Administration (TSA) is publishing this Notice of Proposed
Rulemaking (NPRM) to propose exemptions for DHS/TSA 019 to the extent
necessary to protect the integrity of investigatory information that
may be included in the system of records.
On December 17, 2004, the Intelligence Reform and Terrorism
Prevention Act of 2004 (IRTPA) (Pub. L. 108-458) was enacted. Section
4012(a) of the IRTPA directs the TSA and the Department of Homeland
Security (DHS) to assume from aircraft operators the pre-flight
passenger watch list matching function. TSA is carrying out this
mandate through the creation of the Secure Flight program.
Section 4012(a)(1) of the IRTPA requires TSA to assume from air
carriers the comparison of passenger information for domestic flights
to the consolidated and integrated terrorist watch list maintained by
the Federal Government. Section 4012(a)(2) of IRTPA similarly requires
the DHS to compare passenger information for international flights to
and from the United States against the consolidated and integrated
terrorist watch list before departure of such flights. Further, as
recommended by the 9/11 Commission, TSA may access the ``larger set of
watch lists maintained by the Federal Government.'' \2\ Therefore, as
warranted by security considerations, TSA may use the full Terrorist
Screening Database (TSDB) or other government databases, such as
intelligence or law enforcement databases (referred to as ``watch list
matching''). For example, TSA may obtain intelligence that flights
flying a particular route may be subject to an increased security risk.
Under this circumstance, TSA may decide to compare passenger
information on some or all of the flights flying that route against the
full TSDB or other government database.
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\2\ National Commission on Terrorist Attacks Upon the Untied
States, page 393.
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TSA also is publishing in today's Federal Register a Privacy Act
System of Records notice establishing a new system of records for the
Secure Flight program, entitled Secure Flight Records (DHS/TSA 019).
Although not required, aircraft operators may voluntarily choose to
begin operational testing with TSA prior to publication of a final rule
for the Secure Flight program. In the event an aircraft operator begins
early operational testing with TSA, the records created as part of that
testing would be included in the Secure Flight Records system and the
exemptions claimed in this rulemaking would apply to such records.
The categories of records TSA will create or maintain in the course
of the Secure Flight program are described in detail in the system of
records notice. TSA would not assert an exemption with respect to
information submitted by or on behalf of individual passengers or non-
travelers in the course of making a reservation or seeking access to a
secured area under the Secure Flight program. This system, however, may
contain records or information recompiled from or created from
information contained in other systems of records, which are exempt
from certain provisions of the Privacy Act. For these records or
information only, TSA is proposing certain Privacy Act exemptions for
the records contained in DHS/TSA 019 pursuant to 5 U.S.C. 552a(j)(2),
(k)(1), and (k)(2), to the extent necessary to protect the integrity of
watch list matching procedures performed under the Secure Flight
Program.
Under 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2), an agency may exempt
from certain provisions of the Privacy Act a system of records
containing investigatory material compiled for law enforcement
purposes, classified information, and information pertaining to
national security. The exemptions proposed here are standard law
enforcement and national security exemptions exercised by a large
number of federal agencies.
In the course of carrying out the Secure Flight program, TSA will
review information from Federal Bureau of Investigation (FBI) systems
of records and from systems of records of other law enforcement and
intelligence agencies if necessary to resolve an apparent match to a
Federal watch list. These may include classified and unclassified
governmental terrorist, law enforcement, and intelligence databases,
including databases maintained by the Department of Homeland Security,
Department of Defense, National Counterterrorism Center, and FBI.
Records from these systems are exempt from certain provisions of the
Privacy Act because they contain law enforcement investigative
information and classified information. To the extent the Secure Flight
Records system relies on information from such other exempt systems of
records, TSA would rely on the Privacy Act exemptions claimed for those
systems.
Individuals can seek redress, in accordance with the provisions of
proposed 49 CFR part 1560, subpart C, in cases where they believe they
have been delayed or prohibited from boarding or denied entrance to the
airport sterile area, as a result of the operation of the Secure Flight
program. TSA will examine each separate request on a case-by-case
basis, and after conferring with the appropriate agency, may waive
applicable exemptions in appropriate circumstances and where it would
not appear to interfere with or adversely affect the law enforcement or
national security purposes of the systems from which the information is
recompiled or in which it is contained.
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. There are no current or new
information collection requirements associated with this proposed rule.
Economic Impact Analyses
This rulemaking is not a ``significant regulatory action'' within
the meaning of Executive Order 12886. Further regulatory evaluation is
not necessary because the economic impact should be minimal. Moreover,
I certify that this rule 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.
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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. 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 rule 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 Analysis
The energy impact of the notice has been assessed in accordance
with the Energy Policy and Conservation Act (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 Amendments
For the reasons set forth in the preamble, the Transportation
Security Administration proposes to amend part 1507 of Chapter XII of
Title 49 of the Code of Federal Regulations, as follows:
PART 1507--PRIVACY ACT--EXEMPTIONS
1. The authority citation for part 1507 continues to read as
follows:
Authority: 49 U.S.C. 114(l)(1), 40113, 5 U.S.C. 552a(j) and (k).
2. Add a new paragraph (k) to Sec. 1507.3 to read as follows:
Sec. 1507.3 Exemptions.
* * * * *
(k) Secure Flight Records. (1) Secure Flight Records (DHS/TSA 019)
enables TSA to maintain a system of records related to watch list
matching applied to air passengers and to non-traveling individuals
authorized to enter an airport sterile area. Pursuant to 5 U.S.C.
552a(j)(2), (k)(1), and (k)(2), TSA is claiming the following
exemptions for certain records within the Secure Flight Records system:
5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2),
(3), (4)(G) through (I), (5), and (8); (f), and (g).
(2) In addition to records under the control of TSA, the Secure
Flight system of records may include records originating from systems
of records of other law enforcement and intelligence agencies which may
be exempt from certain provisions of the Privacy Act. However, TSA does
not assert exemption to any provisions of the Privacy Act with respect
to information submitted by or on behalf of individual passengers or
non-travelers in the course of making a reservation or seeking access
to a secured area under the Secure Flight program.
(3) To the extent the Secure Flight system contains records
originating from other systems of records, TSA will rely on the
exemptions claimed for those records in the originating system of
records. Exemptions for certain records within the Secure Flight
Records system from particular subsections of the Privacy Act are
justified for the following reasons:
(i) From subsection (c)(3) (Accounting for Disclosures) because
giving a record subject access to the accounting of disclosures from
records concerning him or her 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 because the individual who is the subject of the
record would learn of third agency investigative interests and could
take steps to evade detection or apprehension. Disclosure of the
accounting also could reveal the details of watch list matching
measures under the Secure Flight program, as well as capabilities and
vulnerabilities of the watch list matching process, the release of
which could permit an individual to evade future detection and thereby
impede efforts to ensure transportation security.
(ii) From subsection (c)(4) because portions of this system are
exempt from the access and amendment provisions of subsection (d).
(iii) From subsections (d)(1), (2), (3), and (4) because these
provisions concern individual access to and amendment of certain
records contained in this system, including law enforcement
counterterrorism, investigatory and intelligence records. Compliance
with these provisions could: alert the subject of an investigation of
the fact and nature of the investigation, and/or the investigative
interest of intelligence or law enforcement agencies; compromise
sensitive information related to national security; interfere with the
overall law enforcement process by leading to the destruction of
evidence, improper influencing of witnesses, fabrication of testimony,
and/or flight of the subject; identify a confidential source or
disclose information which would constitute an unwarranted invasion of
another's personal privacy; reveal a sensitive investigative or
intelligence technique; or constitute a potential danger to the health
or safety of law enforcement personnel, confidential informants, and
witnesses. Amendment of these records would interfere with ongoing
counterterrorism, law enforcement, or intelligence investigations and
analysis activities and impose an impossible administrative burden by
requiring investigations, analyses, and reports to be continuously
reinvestigated and revised.
(iv) From subsection (e)(1) because it is not always possible for
TSA or other agencies to know in advance what information is both
relevant and necessary for it to complete an identity comparison
between aviation passengers or certain non-travelers and a known or
suspected terrorist. Also, because TSA and other agencies may not
always know what information about an encounter with a known or
suspected terrorist will be relevant to law enforcement for the purpose
of conducting an operational response.
(v) From subsection (e)(2) because application of this provision
could present a serious impediment to counterterrorism, law
enforcement, or intelligence 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, law enforcement,
or intelligence investigations is such that
[[Page 48400]]
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 upon
information furnished by the individual concerning his own activities.
(vi) From subsection (e)(3), to the extent that this subsection is
interpreted to require TSA to provide notice to an individual if TSA 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, law enforcement, or intelligence 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.
(vii) From subsections (e)(4)(G) and (H) (Agency Requirements) and
(f) (Agency Rules), because this system is exempt from the access
provisions of 5 U.S.C. 552a(d).
(viii) From subsection (e)(5) because many of the records in this
system coming from other system of records are derived from other
domestic and foreign agency record systems and therefore it is not
possible for TSA to ensure their compliance with this provision;
however, TSA has implemented internal quality assurance procedures to
ensure that data used in the watch list matching process is as
thorough, accurate, and current as possible. In addition, in the
collection of information for law enforcement, counterterrorism, and
intelligence 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. However, TSA has implemented internal quality
assurance procedures to ensure that the data used in the watch list
matching process is as thorough, accurate, and current as possible.
(ix) From subsection (e)(8) because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on TSA and other agencies and could
alert the subjects of counterterrorism, law enforcement, or
intelligence investigations to the fact of those investigations when
not previously known.
(x) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of
subsection (d).
(xi) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act.
Issued in Arlington, Virginia on August 8, 2007.
Kip Hawley,
Assistant Secretary.
Hugo Teufel III,
Chief Privacy Officer.
[FR Doc. E7-15963 Filed 8-22-07; 8:45 am]
BILLING CODE 9110-05-P