[Federal Register Volume 67, Number 247 (Tuesday, December 24, 2002)]
[Proposed Rules]
[Pages 78403-78404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31755]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 10

[Docket No. OST-1996-1437]
RIN 2105-AD22


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: DOT proposes to add three systems of records to the list of 
DOT Privacy Act Systems of Records that are exempt from one or more 
provisions of the Privacy Act, and to add exemptions from 5 U.S.C. 
552a(e)(1) to the General Exemptions, and to the (k)(2) portions of the 
Specific Exemptions. Public comment is invited.

DATES: Comments are due February 24, 2003.

ADDRESSES: Comments should be addressed to Documentary Services 
Division, Attention: Docket Section, Room PL-401, Docket No. OST-1996-
1437, Department of Transportation, SVC-124, Washington, DC 20590. Any 
person wishing acknowledgment that his/her comments have been received 
should include a self-addressed stamped postcard. Comments received 
will be available for public inspection and copying in the Documentary 
Services Division, Room PL401, Department of Transportation Building, 
400 Seventh Street, SW., Washington, DC, from 9 a.m. to 5 p.m. ET 
Monday through Friday except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Yvonne Coates, Office of the Chief 
Information Officer, Department of Transportation, Washington, DC (202) 
366-6964.

SUPPLEMENTARY INFORMATION: 1. Additional exempt systems. It is DOT 
practice to identify a Privacy Act system of records that is exempt 
from one or more provisions of the Privacy Act (pursuant to 5 U.S.C. 
552a(j) or (k)) both in the system notice published in the Federal 
Register for public comment and in an Appendix to DOT's regulations 
implementing the Privacy Act (49 CFR Part 10, Appendix). This amendment 
proposes exemption from portions of the Privacy Act of three proposed 
Transportation Security Administration (TSA) systems, whose 
establishment is currently the subject of public comment--
    1. The Transportation Security Enforcement Record System (TSER) 
(DOT/TSA 001) would enable the Transportation Security Administration 
(TSA) to maintain a civil enforcement and inspections system for all 
modes of transportation for which TSA has security-related duties. This 
system covers information regarding violations and potential violations 
of TSA security regulations (TSRs), and may be used, generally, to 
review, analyze, investigate, and prosecute violations of TSRs.
    2. To facilitate TSA's performance of employment investigations for 
transportation workers, as required by 49 U.S.C. 114 and 44936, a 
system is proposed to be known as the Transportation Workers Employment 
Investigations system (TWEI) (DOT/TSA 002).
    3. To facilitate TSA's performance of employment investigations for 
its own workers, a system to be known as the Personnel Background 
Investigation Files System (PBIFS) (DOT/TSA 004) is proposed.
    To aid in the national security and law enforcement aspects of two 
of the proposed systems, TSERS and TWEI, DOT proposes to treat them as 
it treats other law enforcement systems, by exempting them from the 
following provisions of the Privacy Act: (c)(3) (Accounting of Certain 
Disclosures), (d) (Access to Records), (e)(1) (Relevancy and Necessity 
of Information), (e)(4)(G), (H), and (I) (Agency Requirements), and (f) 
(Agency Rules) (1) to the extent that TWEI contains information 
properly classified in the interest of national security, in accordance 
with 5 U.S.C. 552a(k)(1), (2) and to the extent that TSER and TWEI 
contain investigatory material compiled for law enforcement purposes, 
in accordance with 5 U.S.C. 552a(k)(2)
    DOT proposes to exempt the other proposed system, PBIF, from the 
following provisions of the Privacy Act: (c)(3) (Accounting of Certain 
Disclosures, and (d) (Access to records) to the extent that PBIFS 
contains (1) investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information, but only to the extent that the disclosure of 
such material would reveal the identity of a confidential source, in 
accordance with 5 USC 552a(k)(5) or (2) testing or examination material 
used solely to determine individual qualifications for appointment or 
promotion in the Federal service, the disclosure of which would 
compromise the objectivity or fairness of the testing or examination 
process, in accordance with 5 USC 552a(k)(6).
    2. Addition of (e)(1) exemption. As can be seen from the existing 
text accompanying DOT's General Exemptions, our intention initially was 
to include (e)(1) (Relevancy and Necessity of Information) among those 
provisions of the Privacy Act from which our generally exempted systems 
are exempt. As we say in that text, it is often very difficult in the 
early stages of a law enforcement exemption to know what information is 
relevant and necessary; as the investigation progresses, that becomes 
clearer, and extraneous information is then culled from the appropriate 
file. To cover the early stages of an investigation, however, we need 
the (e)(1) exemption, and propose here to invoke it for our generally 
exempted record systems.
    Similarly, we propose to invoke the (e)(1) exemption for those of 
our record systems exempt pursuant to 5 U.S.C. 552a(k)(2), which has a 
strong analogy to the (j)(2) general exemptions.

Analysis of Regulatory Impacts

    This proposal is not a ``significant regulatory action'' within the 
meaning of Executive Order 12886. It is also not significant within the 
definition in DOT's Regulatory Policies and Procedures, 49 FR 11034 
(1979), in part because it does not involve any change in important 
Departmental policies. 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.
    This proposal would not significantly affect the environment, and 
therefore an environmental impact statement is not required under the 
National

[[Page 78404]]

Environmental Policy Act of 1969. It has also been reviewed under 
Executive Order 12612, Federalism, and it has been determined that it 
does not have sufficient implications for federalism to warrant 
preparation of a Federalism Assessment.

Collection of Information

    This proposal contains no collection of information requirements 
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

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 aggregated, $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 governments or the private 
sector.

List of Subjects in 49 CFR Part 10

    Privacy.

    In consideration of the foregoing, DOT proposes to amend Part 10 of 
Title 49, Code of Federal Regulations, as follows:
    1. The authority citation for Part 10 would continue to read as 
follows:

    Authority: Pub. L. 93-579; 49 U.S.C. 322.

    2. Appendix to Part 10 would be amended as follows:
    a. By revising the introductory text of Part I.
    b. By amending Part II.A. by revising the introductory text; by 
adding new paragraphs 19 and 20; by adding a new paragraph 3. to the 
undesignated paragraph after paragraph 20; by revising paragraph G, 
introductory text; and by adding new paragraph G.2.
    c. By adding Part II.H.
    The revisions and additions read as follows:

Appendix to Part 10--Exemptions

Part I. General Exemptions

    Those portions of the following systems of records that consist 
of (a) information compiled for the purpose of identifying 
individual criminal offenders and alleged offenders and consisting 
only of identifying data and notations of arrests, the nature and 
disposition of criminal charges, sentencing, confinement, release, 
and parole and probation status; (b) information compiled for the 
purpose of a criminal investigation, including reports of informants 
and investigators, and associated with an identifiable individual; 
or (c) reports identifiable to an individual compiled at any stage 
of the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision, are exempt from all 
parts of 5 U.S.C. 552a except subsections (b) (Conditions of 
disclosure); (c)(1) and (2) (Accounting of certain disclosures); 
(e)(1) (Relevancy and Necessity of Information); (e)(4)(A) through 
(F) (Publication of existence and character of system); (e)(6) 
(Ensure records are accurate, relevant, timely, and complete before 
disclosure to person other than an agency and other than pursuant to 
a Freedom of Information Act request), (7) (Restrict recordkeeping 
on First Amendment rights), (9) (Rules of conduct), (10) 
(Safeguards), and (11) (Routine use publication); and (i) (Criminal 
penalties):
* * * * *

Part II. Specific Exemptions

    A. The following systems of records are exempt from subsections 
(c)(3) (Accounting of Certain Disclosures), (d) (Access to Records), 
(e)(1) (Relevancy and Necessity of Information), (e)(4)(G), (H), and 
(I) (Agency Requirements), and (f) (Agency Rules) of 5 U.S.C. 552a, 
to the extent that they contain investigatory material compiled for 
law enforcement purposes, in accordance 5 U.S.C. 552a(k)(2):
* * * * *
    19. Transportation Workers Employment Investigations System 
(TWEI), DOT/TSA 002, maintained by the Transportation Security 
Administration.
    20. Transportation Security Enforcement Record System (TSER), 
DOT/TSA 001, maintained by the Transportation Security 
Administration.
    These exemptions are justified for the following reasons:
* * * * *
    3. From subsection (e)(1), because in the course of law 
enforcement investigations, information may occasionally be obtained 
or introduced the accuracy of which is unclear or which is not 
strictly relevant or necessary to a specific investigation. In the 
interests of effective enforcement of the laws, it is appropriate to 
retain all information that may aid in establishing patterns of 
unlawful activity.
* * * * *
    G. Those portions of the following systems of records which 
consist of information properly classified in the interest of 
national defense or foreign policy in accordance with 5 U.S.C. 
552(b)(1) are exempt from sections (c)(3) (Accounting of Certain 
Disclosures), (d) (Access to Records), (e)(1) (Relevancy and 
Necessity of Information), (e)(4)(G), (H), and (I) (Agency 
Requirements), and (f) (Agency Rules) of 5 U.S.C. 552a:
* * * * *
    2. Transportation Workers Employment Investigations System 
(TWEI), DOT/TSA 002, maintained by the Transportation Security 
Administration.
* * * * *
    H. Those portions of the following systems of records consisting 
of investigatory material compiled for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, military service, Federal contracts, or access to 
classified information or testing or examination material used 
solely to determine individual qualifications for appointment or 
promotion in the Federal service the disclosure of which would 
compromise the objectivity or fairness of the testing or examination 
process, are exempt from subsections (c)(3) (Accounting of Certain 
Disclosures), (d) (Access to Records) of 5 U.S.C. 552a, to the 
extent that disclosure of such material would reveal the identify of 
a source who provided information to the Government under an express 
or, prior to September 27, 1975, an implied promise of 
confidentiality (5 U.S.C. 552a(k)(5) and (6)).
    1. Personnel Background Investigation Files System (PBIF), DOT/
TSA 004, maintained by the Transportation Security Administration.
    The purpose of these exemptions is to prevent disclosure of the 
identities of sources who provide information to the government 
concerning the suitability, eligibility, or qualifications of 
individuals for Federal civilian employment, contracts, access to 
classified information, or appointment or promotion in the armed 
services, and who are expressly or, prior to September 27, 1975, 
impliedly promised confidentiality. The purpose of these exemptions 
is also to preserve the value of these records as impartial 
measurement standards for appointment and promotion within the 
Federal service. (5 U.S.C. 552a(k)(5) and (6).

    Issued in Washington, DC, on December 9, 2002.
Eugene K. Taylor, Jr.,
Acting Chief Information Officer.
[FR Doc. 02-31755 Filed 12-23-02; 8:45 am]
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