[Federal Register Volume 69, Number 122 (Friday, June 25, 2004)]
[Rules and Regulations]
[Pages 35536-35540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14502]
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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:
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inal rule.
SUMMARY: TSA is adding a new part to the Code of Federal Regulations
that will exempt eight systems of records from one or more provisions
of the Privacy Act. This rule will enable TSA to withhold records in
response to requests for information pertaining to active
investigations and in other instances where disclosure could reveal
sensitive information.
DATES: Effective July 26, 2004.
FOR FURTHER INFORMATION CONTACT: Conrad Huygen, Privacy Act Officer,
Information Management Programs, Office of Finance and Administration,
TSA-17, Transportation Security Administration, 601 South 12th Street,
Arlington, VA 22202-4220; telephone (571) 227-1954; facsimile (571)
227-2912.
SUPPLEMENTARY INFORMATION:
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 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.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
[[Page 35537]]
1996 requires TSA to comply with small entity requests for information
and advice about compliance with statutes and regulations within TSA's
jurisdiction. Any small entity that has a question regarding this
document may contact the person listed in FOR FURTHER INFORMATION
CONTACT. Persons can obtain further information regarding SBREFA on the
Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.
Background
On August 18, 2003, TSA published a notice of proposed rulemaking
to add a new part 1507 to Chapter XII of title 49, Code of Federal
Regulations, in order to exempt eight systems of records from one or
more provisions of the Privacy Act. See 68 FR 49410. The exempted
systems are as follows:
Transportation Security Enforcement Record System (DHS/TSA
001), which creates a civil enforcement and inspections system for all
modes of transportation within TSA's jurisdiction.
Transportation Workers Employment Investigations System
(DHS/TSAA 002), which covers background checks and employment
investigations for transportation workers.
Personnel Background Investigation Files System (DHS/TSA
004), which encompasses background checks and employment investigations
on TSA applicants, employees, and contractors.
Internal Investigation Record System (DHS/TSA 005), which
covers investigations of misconduct of current and former TSA
employees.
Correspondence and Matters Tracking Records (DHS/TSA 006),
which track inquiries, claims, and complaints that come into the
agency.
Freedom of Information Act and Privacy Act Record System
(DHS/TSA 007), which will record requests and appeals made under both
statutes.
General Legal Records System (DHS/TSA 009), which covers a
variety of matters filed in the Office of Chief Counsel.
Federal Flight Deck Officer Record System (DHS/TSA 013),
which will document the selection and training of deputized pilots as
mandated by the Homeland Security Act of 2002.
TSA did not receive any comments on the proposed exemptions and
therefore adopts the proposed rule as final. There are two minor
changes to note between the proposed and final regulations. First, the
Privacy Act authority has been changed from ``5 U.S.C. 552a(k)(1)-
(k)(2)'' to read ``5 U.S.C. 552a(k)'' in order to reflect TSA's
reliance on other portions of subsection (k). Second, the Internal
Investigation Record System and the Correspondence and Matters Tracking
Records had been inadvertently designated as ``DOT/TSA 005'' and ``DOT/
TSA 006,'' respectively; these systems have been corrected to read
``DHS/TSA 005'' and ``DHS/TSA 006,'' respectively, in order to reflect
the proper department.
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 final rule 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 final 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.
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 final 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 final 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 document 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 (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.
0
For the reasons set forth in the preamble, the Transportation Security
Administration amends Chapter XII, of title 49, Code of Federal
Regulations, by adding a new part 1507 to read as follows:
PART 1507--PRIVACY ACT-EXEMPTIONS
Sec.
1507.1 Scope.
1507.3 Exemptions.
Authority: 49 U.S.C. 114(1)(1), 5 U.S.C. 552a(k).
Sec. 1507.1 Scope.
This part implements provisions of the Privacy Act of 1974 (the
Act) 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 in this section. 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 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 part.
(a) Transportation Security Enforcement Record System (DHS/TSA
001). The Transpiration Security
[[Page 35538]]
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 transportations
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 TSA as well as the recipient
agency. Disclosure of the accounting would therefore present a serious
impediment to transportations 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 TSA 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 investigation into potential
violations of transportation security laws, the accuracy of information
obtained or introduced, occasionally maybe 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
background checks on employees of transportation operators and others
who are issued credentials or clearances by transportation operators,
other than TSA employees. 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 investigate 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 investigate 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
TSA 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).
(c) Personnel Background Investigation File System (DHS/TSA 004).
The Personnel Background Investigation File System (PBIFS) (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,
DHS/TSA 004 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
investigative material complied 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 identify 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 (DHS/TSA 005). The
Internal Investigation Record System (IIRS) (DHS/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, DHS/TSA 005 is exempt
[[Page 35539]]
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 transportation
security.
(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 TSA 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 (DHS/TSA 006). The
Correspondence and Matters Tracking Records (CMTR) (DHS/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, DHS/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 lean 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 transportation
security.
(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 TSA 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 and Privacy Act (FOIA/PA) Records System
(DHS/TSA 007) system enables TSA to maintain records that will assist
in processing access requests and administrative appeals under FOIA and
access and amendments requests and appeals under the PA; participate in
associated litigation; and assist TSA in carrying out any other
responsibilities under FOIA/PA. Pursuant to exemptions (k)(1) and
(k)(2) of the Privacy Act, Freedom of Information and Privacy Act
Records are 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 would be detrimental to transportation
security.
(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 TSA 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
[[Page 35540]]
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 would 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 transportation
security.
(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 TSA 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 subsections (d).
(h) Federal Flight Deck Officer Records System (DHS/TSA 013). The
Federal Flight Deck Officer Record System (FFDORS) (DHS/TSA 013)
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 in the selection process for TSA security screeners, or
potential selection processes that TSA may utilize in the future, 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 June 21, 2004.
David Stone,
Acting Administrator.
[FR Doc. 04-14502 Filed 6-24-04; 8:45 am]
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