Federal Register: December 10, 2004 (Volume 69, Number 237)
DOCID: FR Doc 04-27097
DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
CFR Citation: 49 CFR Part 1507
Docket ID: [Docket No. TSA-2004-19845]
RIN ID: RIN 1652-AA34
NOTICE: PROPOSED RULES
DOCUMENT ACTION: Notice of proposed rulemaking (NPRM).
SUBJECT CATEGORY:
Privacy Act of 1974: Implementation of Exemptions
DATES: Submit comments by January 10, 2005.
DOCUMENT SUMMARY:
TSA proposes to exempt Transportation Security Intelligence Service (TSIS) Operations Files (DHS/TSA 011) from several provisions of the Privacy Act; to add 5 U.S.C. 552a(k)(1) as an authority to exempt the Personnel Background Investigation File System (DHS/TSA 004) from the provisions previously claimed for that system; and to add 5 U.S.C. 552a(j)(2) as an authority to exempt the Transportation Security Enforcement Record System (DHS/TSA 001) and the Internal Investigation Record System (DHS/TSA 005) from the provisions previously claimed for those two systems, to now include subsection (e)(3). Public comment is invited.
SUMMARY:
Privacy Act; implementation,
SUPPLEMENTAL 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. See ADDRESSES above for information on where to submit comments.
With each comment, please include your name and address, identify the docket number TSA200419845 at the beginning of your comments, and give the reason for each comment. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. You may submit comments and material electronically, in person, or by mail 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 the TSA to acknowledge receipt of your comments on this rulemaking, include with your comments a selfaddressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.
Except for comments containing confidential information and SSI, we will file in the public 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 to the extent practicable. We may change this rulemaking in light of the comments we receive.
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://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.
Summary of Proposed Rule
In conjunction with the establishment of a new system of records, Transportation Security Intelligence Service (TSIS) Operations Files (DHS/TSA 011), TSA proposes to exempt portions of the system from several provisions of the Privacy Act; the exemptions are claimed in accordance with the reasons explained below. The purpose of this system is to maintain records on intelligence, counterintelligence, transportation security, and information systems security matters as they relate to TSA's mission of protecting the nation's transportation systems. TSA also proposes to add 5 U.S.C. 552a(k)(1) as an authority to exempt the Personnel Background Investigation File System (DHS/TSA 004) from the provisions previously claimed for this system that allows TSA to maintain investigative and background records used to make suitability and eligibility determinations for employment. See 68 FR 49410, Aug. 18, 2003. The system is exempt from provisions of the Privacy Act in accordance with the reasons explained below. Finally, TSA proposes to add 5 U.S.C. 552a(j)(2) as an authority to exempt the Transportation Security Enforcement Record System (DHS/TSA 001) and the Internal Investigation Record System (DHS/TSA 005) from the provisions previously claimed for those two systems and to now include subsection (e)(3) of the Privacy Act. See 68 FR 49410, Aug. 18, 2003. The systems are exempt from provisions of the Privacy Act in accordance with the reasons explained below. DHS/TSA 001 serves as an enforcement docket system while DHS/TSA 005 is maintained to facilitate the management of investigations into allegations or appearances of misconduct by current and former TSA employees or contractors and is being modified to cover investigations of securityrelated incidents and reviews of TSA programs and operations.
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. 1044, 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
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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. 43214347) 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 94163,
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 part 1507 of chapter XII, title 49 of the Code of Federal Regulations, as follows:
PART 1507PRIVACY ACTEXEMPTIONS
1. The authority citation continues to read as follows:
Authority: 49 U.S.C. 114(1)(1), 5 U.S.C. 552a(k).
2. Amend Sec. 1507.3 by revising paragraphs (a), (c), and (d), and by adding a new paragraph (j) to read as follows:
Sec. 1507.3 Exemptions.
(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 criminal statutes and transportation security
laws. Pursuant to exemptions (j)(2), (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)(3), (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 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 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
securitysensitive 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).
(5) From subsection (e)(3) (Privacy Act Statement) because
disclosing the authority, purpose, routine uses, and potential
consequences of not providing information could reveal the
investigative interests of TSA, as well as the nature and scope of an
investigation, the disclosure of which could enable individuals to circumvent agency regulations or statutes.
* * * * *
(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 exemptions (k)(1) and (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 any classified material or 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, while (k)(1) will be required to protect any classified information that may be in this system.
(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 securityrelated duties. This system covers information
regarding investigations of allegations or appearances of misconduct of current or former TSA employees or contractors
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and provides support for any adverse action that may occur as a result
of the findings of the investigation. It is being modified to cover
investigations of securityrelated incidents and reviews of TSA
programs and operations. Pursuant to exemptions (j)(2), (k)(1), and
(k)(2) of the Privacy Act, DHS/TSA 005 is exempt from 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(3), (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 thirdagency 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 investigators, 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 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).
(5) From subsection (e)(3) (Privacy Act Statement) because
disclosing the authority, purpose, routine uses, and potential
consequences of not providing information could reveal the targets or
interests of the investigating office, as well as the nature and scope
of an investigation, the disclosure of which could enable individuals to circumvent agency regulations or statutes.
* * * * *
(j) Transportation Security Intelligence Service (TSIS) Operations
Files. Transportation Security Intelligence Service Operations Files
(TSIS) (DHS/TSA 011) enables TSA to maintain a system of records
related to intelligence gathering activities used to identify, review,
analyze, investigate, and prevent violations or potential violations of
transportation security laws. This system also contains records
relating to determinations about individuals' qualifications,
eligibility, or suitability for access to classified information.
Pursuant to exemptions (j)(2), (k)(1), (k)(2), and (k)(5) of the
Privacy Act, DHS/TSA 011 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
intelligence gathering operations 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 operations and
avoid detection or apprehension, which undermines the entire system.
Disclosure of the accounting may also reveal the existence of
information that is classified or securitysensitive, the release of
which would be detrimental to the security of transportation.
(2) From subsection (d) (Access to Records) because access to the
records contained in this system of records could inform the subject of
intelligence gathering operations and reveal investigative interest on
the part of the Transportation Security Administration. Access to the
records would permit the individual who is the subject of a record to
impede operations and possibly avoid detection or apprehension.
Amendment of the records would interfere with ongoing intelligence 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 if released. This system may also include information
necessary to make a determination as to an individual's qualifications,
eligibility, or suitability for access to classified information, the
release of which would reveal the identity of a source who received an
express or implied assurance that their identity would not be revealed to the subject of the record.
(3) From subsection (e)(1) (Relevancy and Necessity of Information)
because in the course of gathering and analyzing information about
potential threats to transportation security, the accuracy of
information obtained or introduced occasionally may be unclear or the
information may not be strictly relevant or necessary to a specific
operation. In the interests of transportation security, it is
appropriate to retain all information that may aid in identifying
threats to transportation security and establishing other 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 and amendment provisions of subsection (d).
Issued in Arlington, Virginia, on December 3, 2004. Lisa S. Dean,
Privacy Officer.
[FR Doc. 0427097 Filed 12904; 8:45 am]
BILLING CODE 491062P
FOR FURTHER INFORMATION CONTACT
Lisa S. Dean, Privacy Officer, Office of Transportation Security Policy, TSA9, 601 S. 12th Street, Arlington, VA 222024220; telephone (571) 2273947; facsimile (571) 2272555.