[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]
BILLING CODE 4910-62-M