[Federal Register Volume 78, Number 176 (Wednesday, September 11, 2013)]
[Proposed Rules]
[Pages 55657-55659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22069]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 78, No. 176 / Wednesday, September 11, 2013 / 
Proposed Rules

[[Page 55657]]



DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 5

[Docket No. DHS-2013-0041]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security Transportation Security Administration, DHS/TSA-021, 
TSA Pre[check]TM Application Program System of Records

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/Transportation 
Security Administration-021, TSA Pre[check]TM; Application 
Program System of Records'' and this proposed rulemaking. In this 
proposed rulemaking, the Department proposes to exempt portions of the 
system of records from one or more provisions of the Privacy Act 
because of criminal, civil, and administrative enforcement 
requirements.

DATES: Comments must be received on or before October 11, 2013.

ADDRESSES: You may submit comments, identified by docket number DHS-
2013-0041, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-343-4010.
     Mail: Jonathan R. Cantor, Acting Chief Privacy Officer, 
Privacy Office, Department of Homeland Security, Washington, DC 20528.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general questions, please contact: 
Peter Pietra, TSA Privacy Officer, TSA-036, 601 South 12th Street, 
Arlington, VA 20598-6036; or email at [email protected]. For privacy 
questions, please contact: Jonathan R. Cantor, (202) 343-1717, Acting 
Chief Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION: 

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS)/Transportation Security 
Administration (TSA) proposes to establish a new DHS system of records 
titled, ``DHS/TSA-021 TSA Pre[check]TM Application Program 
System of Records.''
    TSA is establishing this new system of records to inform the public 
of the collection, maintenance, dissemination, and use of records on 
individuals who voluntarily submit personally identifiable information 
to the TSA Pre[check]TM Application Program. TSA will use 
the information provided by applicants \1\ to the Program to perform a 
security threat assessment to identify individuals who present a low 
risk to transportation security. This passenger prescreening enables 
TSA to determine the appropriate level of security screening the 
passenger will receive before the passenger receives a boarding pass.
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    \1\ Further information on information collection can be found 
in Intent To Request Approval From OMB of One New Public Collection 
of Information: TSA Pre[check]TM Trusted Traveler 
Program; Republication, 78 FR 45256 (July 26, 2013) (republished for 
technical correction).
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    TSA Pre[check]TM Application Program. TSA 
Pre[check]TM is a passenger prescreening initiative for low 
risk passengers who are eligible to receive expedited screening at 
participating U.S. airport security checkpoints.\2\ TSA 
Pre[check]TM is one of several expedited screening 
initiatives that TSA is implementing. TSA Pre[check]TM, as 
well as the larger set of expedited screening initiatives, enhance 
aviation security by permitting TSA to better focus its limited 
security resources on passengers who are more likely to pose a threat 
to civil aviation, while also facilitating and improving the commercial 
aviation travel experience for the public.
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    \2\ Passengers who are eligible for expedited screening through 
a dedicated TSA Pre[check]TM lane typically will receive 
more limited physical screening, e.g., will be able to leave on 
their shoes, light outerwear, and belt, to keep their laptop in its 
case, and to keep their 3-1-1 compliant liquids/gels bag in a carry-
on. TSA Pre[check]TM lanes are available at 40 airports 
nationwide, with additional expansion planned. See TSA 
Pre[check]TM Now Available at 40 Airports Nationwide: 
Expedited Screening Begins at Raleigh-Durham International Airport, 
http://www.tsa.gov/press/releases/2013/03/28/tsa-pre%E2%9C%93%E2%84%A2-now-available-40-airports-nationwide-expedited-screening-begins.
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    TSA is implementing the TSA Pre[check]TM Application 
Program pursuant to its authority under section 109(a)(3) of the 
Aviation and Transportation Security Act (ATSA), Public Law 107-71 (115 
Stat. 597, 613, Nov. 19, 2001, codified at 49 U.S.C. 114 note). That 
section authorizes TSA to ``[e]stablish requirements to implement 
trusted passenger programs and use available technologies to expedite 
security screening of passengers who participate in such programs, 
thereby allowing security screening personnel to focus on those 
passengers who should be subject to more extensive screening.''
    Members of the public who apply to the TSA Pre[check]TM 
Application Program will be required to pay a fee. Section 540 of the 
DHS Appropriations Act, 2006, Public Law 109-90 (119 Stat. 2064, 2088-
89, Oct. 18, 2005), authorizes TSA to establish and collect a fee for 
any registered traveler program by publication of a notice in the 
Federal Register. The Department of Homeland Security will issue a 
separate notice of the fee for the TSA Pre[check]TM 
Application Program in the Federal Register.
    To apply to the TSA Pre[check]TM Application Program, 
individuals will submit biographic and biometric information to TSA. 
TSA will use the information to conduct a security threat assessment of 
law enforcement, immigration, and intelligence databases, including a 
fingerprint-based criminal history records check conducted through the 
Federal Bureau of Investigation (FBI). The results will be used by TSA 
to decide if an individual poses a low risk to transportation or 
national security. TSA will provide individuals who meet the standards 
of

[[Page 55658]]

the security threat assessment a Known Traveler Number (KTN).\3\
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    \3\ The Known Traveler Number is a component of Secure Flight 
Passenger Data (SFPD), both of which are defined in the Secure 
Flight regulations at 49 CFR 1560.3. See also the Secure Flight 
regulations at 49 CFR Part 1560.
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    The list of individuals approved under the TSA 
Pre[check]TM Application Program, including their name, date 
of birth, gender, and KTN, will be provided to the TSA Secure Flight 
passenger prescreening system.\4\ The Secure Flight system will not 
receive other applicant information that is maintained in the TSA 
Pre[check]TM Application Program system of records.\5\
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    \4\ See the Privacy Impact Assessment for the Secure Flight 
Program, DHS/TSA/PIA-018(e), at http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_tsa_secureflight_update018(e).pdf. See also 
the Secure Flight SORN, DHS/TSA 019, https://www.federalregister.gov/articles/2012/11/19/2012-28058/privacy-act-of-1974-system-of-records-secure-flight-records. The Secure Flight 
SORN is being updated for other reasons.
    \5\ This System of Records Notice does not cover all individuals 
who may be eligible for TSA Pre[check]TM expedited 
screening through some other means (for example, U.S. Customs and 
Border Protection Global Entry members, Members of the Armed 
Forces). This system only covers individuals who apply to TSA for 
enrollment in the TSA Pre[check]TM Application Program.
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    Eligibility for the TSA Pre[check]TM Application Program 
is within the sole discretion of TSA, which will notify individuals who 
are denied eligibility in writing of the reasons for the denial. If 
initially deemed ineligible, applicants will have an opportunity to 
correct cases of misidentification or inaccurate criminal or 
immigration records. Consistent with 28 CFR 50.12 in cases involving 
criminal records, and before making a final eligibility decision, TSA 
will advise the applicant that the FBI criminal record discloses 
information that would disqualify him or her from the TSA 
Pre[check]TM Application Program.
    Within 30 days after being advised that the criminal record 
received from the FBI discloses a disqualifying criminal offense, the 
applicant must notify TSA in writing of his or her intent to correct 
any information he or she believes to be inaccurate. The applicant must 
provide a certified revised record, or the appropriate court must 
forward a certified true copy of the information, prior to TSA 
approving eligibility of the applicant for the TSA 
Pre[check]TM Application Program. With respect to 
immigration records, within 30 days after being advised that the 
immigration records indicate that the applicant is ineligible for the 
TSA Pre[check]TM Application Program, the applicant must 
notify TSA in writing of his or her intent to correct any information 
believed to be inaccurate. TSA will review any information submitted 
and make a final decision. If neither notification nor a corrected 
record is received by TSA, TSA may make a final determination to deny 
eligibility. Individuals whom TSA determines are ineligible for the 
program will continue to be screened at airport security checkpoints 
according to TSA standard screening protocols.
    To be eligible for expedited screening in a TSA 
Pre[check]TM lane, the passenger will provide his or her KTN 
to the airline when making flight reservations. When the airline sends 
the passenger's Secure Flight Passenger Data (SFPD) \6\ that includes a 
KTN to the Secure Flight passenger prescreening system, TSA will 
compare that information against the TSA Pre[check]TM 
Application Program list (as well as watch lists) in Secure Flight 
before issuing an appropriate boarding pass printing instruction. If 
the passenger's identifying information matches the entry on the TSA 
Pre[check]TM Application Program list, the passenger will be 
eligible for expedited screening, except that watch list matches will 
receive screening appropriate for their watch list status.
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    \6\ SFPD consists of name, gender, date of birth, passport 
information (if available), redress number (if available), Known 
Traveler number (if available), reservation control number, record 
sequence number, record type, passenger update indicator, traveler 
reference number, and itinerary information.
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    Enrollment into the TSA Pre[check]TM Application 
Program, and use of the associated KTN, does not guarantee that an 
individual always will receive expedited screening at airport security 
checkpoints. The Program retains a component of randomness to maintain 
the element of unpredictability for security purposes. Accordingly, 
persons who have been enrolled in the TSA Pre[check]TM 
Application Program may be randomly selected for standard physical 
screening on occasion. In addition, although the number of TSA 
Pre[check]TM lanes at U.S. airports is increasing, TSA 
Pre[check]TM is not yet available for all airports, all 
airlines, or all flights.
    DHS Information Sharing. Consistent with DHS's information-sharing 
mission, TSA may share information stored in the DHS/TSA-021 TSA 
Pre[check]TM Application Program system of records with 
other DHS components that have a need to know the information to carry 
out their national security, law enforcement, immigration, 
intelligence, or other homeland security functions. In addition, TSA 
may share information with appropriate federal, state, local, tribal, 
territorial, or foreign government agencies consistent with the routine 
uses set forth in the system of records notice.
    Notice of Proposed Rulemaking. DHS is issuing this notice of 
proposed rulemaking to exempt this system of records (see ``Exemptions 
claimed for this system'') from certain provisions of the Privacy Act. 
This newly established system will be included in DHS's inventory.
    No exemption shall be asserted with respect to information 
maintained in the system that is submitted by a person if that person, 
or his or her agent, seeks access to or amendment of such information. 
This system, however, may contain records or information created or 
recompiled from information contained in other systems of records that 
are exempt from certain provisions of the Privacy Act. For these 
records or information only, as necessary and appropriate to protect 
such information, in accordance with 5 U.S.C. 552a(k)(1) and (k)(2), 
DHS also will claim the original exemptions for these records or 
information from the following Privacy Act (5 U.S.C. 552a) subsections: 
(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); and (f). Moreover, DHS 
will add these exemptions to Appendix C of 6 CFR Part 5, DHS Systems of 
Records Exempt from the Privacy Act. Such exempt records or information 
may be law enforcement or national security investigation or encounter 
records, or terrorist screening records.
    DHS needs these exemptions in order to protect information relating 
to investigations from disclosure to subjects of investigations and 
others who could interfere with investigatory material compiled for law 
enforcement or national security purposes. Specifically, the exemptions 
are required to: preclude subjects of investigations from learning of 
and exploiting sensitive investigatory material that would interfere 
with the investigative process; avoid disclosure of investigative 
techniques; protect sensitive and classified information compiled 
during the investigation; protect Transportation Security 
Administration Office of Intelligence and Analysis and other federal 
agency information; ensure DHS's and other federal agencies' ability to 
obtain information from third parties and other sources; protect the 
privacy of third parties; and safeguard Sensitive Security Information 
pursuant to 49 U.S.C. 114(r).
    Nonetheless, DHS will examine each request on a case-by-case basis 
and, after conferring with the appropriate component or agency, may 
waive applicable exemptions in appropriate circumstances and when it 
would not appear to interfere with or adversely affect the 
investigatory purposes of the

[[Page 55659]]

systems from which the information is recompiled or in which it is 
contained.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which Federal Government 
agencies collect, maintain, use, and disseminate individuals' records. 
The Privacy Act applies to information that is maintained in a ``system 
of records.'' A ``system of records'' is a group of any records under 
the control of an agency from which information is retrieved by the 
name of an individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual. In the Privacy Act, 
an individual is defined to encompass U.S. citizens and lawful 
permanent residents. As a matter of policy, DHS extends administrative 
Privacy Act protections to all individuals when systems of records 
maintain information on U.S. citizens, lawful permanent residents, and 
visitors. The Privacy Act allows government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/TSA-021 TSA Pre[check]TM Application Program 
System of Records. Some information in DHS/TSA-021 TSA 
Pre[check]TM Application Program System of Records relates 
to official DHS national security, immigration, and intelligence 
activities, and also may be Sensitive Security Information. These 
exemptions are needed to protect information relating to DHS activities 
from disclosure to subjects or others related to these activities. 
Specifically, the exemptions are required to preclude subjects of these 
activities from frustrating these processes; to avoid disclosure of 
investigative techniques; to ensure DHS's ability to obtain information 
from third parties and other sources; to protect the privacy of third 
parties; and to safeguard classified information. Disclosure of 
information to the subject of the inquiry also could permit the subject 
to avoid detection or apprehension.
    In appropriate circumstances, when compliance would not appear to 
interfere with or adversely affect the law enforcement or national 
security purposes of this system and the overall law enforcement or 
national security processes, the applicable exemptions may be waived on 
a case-by-case basis.
    A notice of system of records for DHS/TSA-021 TSA 
Pre[check]TM Application Program System of Records is also 
published in this issue of the Federal Register.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

    For the reasons stated in the preamble, DHS proposes to amend 
Chapter I of Title 6, Code of Federal Regulations, as follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

0
1. The authority citation for part 5 continues to read as follows:

    Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. 
Subpart B also issued under 5 U.S.C. 552a.

0
2. Amend Appendix C to Part 5 by adding paragraph 70 to read as 
follows:

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    70. The DHS/TSA-021 TSA Pre[check]TM Application 
Program System of Records consists of electronic and paper records 
and will be used by DHS/TSA. The DHS/TSA-021 Pre[check]TM 
Application Program System of Records is a repository of information 
held by DHS on individuals who voluntarily provide personally 
identifiable information to the Transportation Security 
Administration in return for enrollment in a program that will make 
them eligible for expedited security screening at designated 
airports. This System of Records contains personally identifiable 
information in biographic application data, biometric information, 
pointer information to law enforcement databases, payment tracking, 
and U.S. Application membership decisions that support the TSA 
Pre[check]TM Application Program membership decisions. 
The DHS/TSA-012 TSA Pre[check]TM Application Program 
System of Records contains information that is collected by, on 
behalf of, in support of, or in cooperation with DHS and its 
components and may contain personally identifiable information 
collected by other federal, state, local, tribal, territorial, or 
foreign government agencies.
    The Secretary of Homeland Security, pursuant to 5 U.S.C. 
552a(k)(1) and (k)(2), has exempted this system from the following 
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1); 
(e)(4)(G), (H), and (I); and (f). Where a record received from 
another system has been exempted in that source system under 5 
U.S.C. 552a(k)(1) and (k)(2), DHS will claim the same exemptions for 
those records that are claimed for the original primary systems of 
records from which they originated and claims any additional 
exemptions set forth here. Exemptions from these particular 
subsections are justified, on a case-by-case basis to be determined 
at the time a request is made, for the following reasons:
    (a) 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 that investigation and 
reveal investigative interest on the part of DHS as well as the 
recipient agency. Disclosure of the accounting would therefore 
present a serious impediment to law enforcement efforts and/or 
efforts to preserve national security. Disclosure of the accounting 
also would permit the individual who is the subject of a record to 
impede the investigation, to tamper with witnesses or evidence, and 
to avoid detection or apprehension, which would undermine the entire 
investigative process.
    (b) 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 that 
investigation and reveal investigative interest on the part of DHS 
or another agency. Access to the records could permit the individual 
who is the subject of a record to impede the investigation, to 
tamper with witnesses or evidence, and to avoid detection or 
apprehension. Amendment of the records could interfere with ongoing 
investigations and law enforcement activities and would impose an 
unreasonable administrative burden by requiring investigations to be 
continually reinvestigated. In addition, permitting access and 
amendment to such information could disclose security-sensitive 
information that could be detrimental to homeland security.
    (c) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of federal law, 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 law enforcement, it is appropriate to 
retain all information that may aid in establishing patterns of 
unlawful activity.
    (d) From subsections (e)(4)(G), (H), and (I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this 
system are exempt from the individual access provisions of 
subsection (d) for the reasons noted above, and therefore DHS is not 
required to establish requirements, rules, or procedures with 
respect to such access. Providing notice to individuals with respect 
to the existence of records pertaining to them in the system of 
records or otherwise setting up procedures pursuant to which 
individuals may access and view records pertaining to themselves in 
the system would undermine investigative efforts and reveal the 
identities of witnesses, potential witnesses, and confidential 
informants.

    Dated: September 4, 2013.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2013-22069 Filed 9-10-13; 8:45 am]
BILLING CODE 9110-9M-P