[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
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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]
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