[Federal Register Volume 69, Number 237 (Friday, December 10, 2004)]
[Proposed Rules]
[Pages 71767-71770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27097]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Part 1507

[Docket No. TSA-2004-19845]
RIN 1652-AA34


Privacy Act of 1974: Implementation of Exemptions

AGENCY: Transportation Security Administration (TSA), DHS.

ACTION: Notice of proposed rulemaking (NPRM).

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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.

DATES: Submit comments by January 10, 2005.

ADDRESSES: You must identify the TSA docket number when you submit 
comments 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. 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, etc.).

[[Page 71768]]

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 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, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001; Fax: 202-493-2251.
    Reviewing Comments in the Docket: You may review the public docket 
containing comments in person in the Dockets Office between 9 a.m. and 
5 p.m., Monday through Friday, except Federal holidays. The Dockets 
Office is located on the plaza level of the NASSIF Building at the 
Department of Transportation address above. Also, you may review public 
dockets on the Internet at http://dms.dot.gov.
    See SUPPLEMENTARY INFORMATION for format and other information 
about comment submissions.

FOR FURTHER INFORMATION CONTACT: Lisa S. Dean, Privacy Officer, Office 
of Transportation Security Policy, TSA-9, 601 S. 12th Street, 
Arlington, VA 22202-4220; telephone (571) 227-3947; facsimile (571) 
227-2555.

SUPPLEMENTARY 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 TSA-2004-19845 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 self-addressed, 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://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 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 security-related 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. 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 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. 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.

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 1507--PRIVACY ACT--EXEMPTIONS

    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 
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 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 security-related duties. This system covers information 
regarding investigations of allegations or appearances of misconduct of 
current or former TSA employees or contractors

[[Page 71770]]

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 security-related 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 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 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 security-sensitive, 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. 04-27097 Filed 12-9-04; 8:45 am]
BILLING CODE 4910-62-P