[Federal Register Volume 84, Number 25 (Wednesday, February 6, 2019)]
[Proposed Rules]
[Pages 2137-2138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01338]



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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 10

[Docket No. DOT-OST-2017-0028]
RIN 2105-AE76


Maintenance of and Access to Records Pertaining to Individuals

AGENCY: Office of the Secretary (OST), U.S. Department of 
Transportation (DOT).

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: In accordance with the Privacy Act of 1974, the Department of 
Transportation proposes to add a system of records relating to aviation 
consumer protection to the list of Department of Transportation Privacy 
Act Systems of Records that are exempt from one or more provisions of 
the Privacy Act. The Department is proposing to exempt this system of 
records, titled Aviation Consumer Complaint Application Online System, 
to protect records compiled for investigations and inquiries into 
alleged Federal civil rights and consumer protection misconduct by 
airlines and air travel companies. This exemption was initially 
proposed on February 28, 2005 and the Department did not receive any 
comments on the proposed rule. Nonetheless, given the time that has 
passed since the original Notice of Proposed Rulemaking, the Department 
is issuing this Notice of Proposed Rulemaking for comment. The current 
system of records notice indicates that an exemption applies to this 
system; however, the Department is updating the system of records 
notice to specify the basis of the exemption. This rulemaking conforms 
the Department of Transportation's regulations on Maintenance and 
Access to Records Pertaining to Individuals to the applicable System of 
Records Notices (SORNs) to current Department of Transportation 
practice.

DATES: Submit comments on or before April 8, 2019.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2017-0028 by any of the following methods:
    [cir] Federal Rulemaking Portal: Go to http://www.regulations.gov 
and follow the online instructions for submitting comments.
    [cir] Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
    [cir] Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Ave. SE, between 9:00 a.m. and 5:00 p.m. ET, 
Monday through Friday, except Federal holidays.
    [cir]  Fax: 202-493-2251.
    Instructions: You must include the agency name and docket number 
DOT-OST-2017-0028 or the Regulatory Identification Number (RIN) for the 
rulemaking at the beginning of your comment. All comments received will 
be posted without change to http://www.regulations.gov, including any 
personal information provided.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received in 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.) You may review DOT's 
system of records notice for dockets in the Federal Register notice 
published on January 17, 2008 (73 FR 3316-3317).
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or to the street 
address listed above. Follow the online instructions for accessing the 
docket.

FOR FURTHER INFORMATION CONTACT: Claire Barrett, Departmental Chief 
Privacy Officer, Office of the Chief Information Officer, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 
20590 or [email protected] or (202) 366-8135.

SUPPLEMENTARY INFORMATION: The Privacy Act of 1974, 5 U.S.C. 552a, 
requires that agencies tell the public when they maintain information 
about a person in a file that may be retrieved to that person's name or 
some other identifying particular. A group of these files is a ``system 
of records,'' and the existence of each system must be published in a 
``system of records notice'' (SORN). An Agency wishing to exempt 
portions of some systems of records from certain provisions of the 
Privacy Act must notify the public of that exemption in both the SORN 
and in an exemption rule. This proposed rulemaking clarifies that 
portions of the Aviation Consumer Complaint Application Online System 
are not subject to some access and notification provisions of the 
Privacy Act. Exempting the systems from these requirements is necessary 
to protect the public's interest in fair and accurate investigations.
    In 2005, the DOT established the Aviation Consumer Complaint 
Application Online System to monitor consumer comments regarding 
airlines and air travel companies and to determine the extent to which 
these entities are in compliance with Federal aviation civil rights and 
consumer protection regulations. The records contain the inquiries, 
opinions, and compliments of individuals, as well as complaints of 
discrimination based on physical handicap, race, religion, etc. Thus, 
records may complaints containing alleged violations of Federal law and 
regulations, which can lead to civil and criminal investigations by the 
Department of Transportation. Consequently, the records should be 
treated as other law enforcement systems as some information needs to 
remain confidential for these investigative purposes.
    This proposed rulemaking would exempt certain records maintained by 
the Aviation Consumer Complaint Application Online System from the 
access and notification provisions of the Privacy Act. An exemption 
from these requirements would be necessary to: Avoid disclosure of 
aviation compliance inquiry techniques; protect the confidential 
information of confidential informants and third parties; prevent 
unwarranted invasions of another individual's privacy; and support 
DOT's ability to obtain information relevant to resolving an aviation 
compliance concern. DOT may take administrative or other appropriate 
action within the scope of its respective legal authority in response 
to an aviation compliance concern. Thus, an aviation compliance inquiry 
is comprised of records compiled for law enforcement purposes falling 
under the subsection (k)(2) exemption (5 U.S.C. 552a(k)(2)) making it 
applicable to this system of records.
    In appropriate circumstances, where compliance with the request 
would not appear to interfere with or adversely affect the conduct of 
an aviation compliance inquiry or result in the unauthorized disclosure 
of confidential information, OST may opt to waive these exemptions. In 
addition, some information may be available under the Freedom of 
Information Act, 5 U.S.C. 552 (FOIA). Any request for information from 
this system under the FOIA would be assessed on a case-by-case basis to 
determine what, if any, information could be released consistent with 
section (b)(2) of the Privacy Act, 5 U.S.C. 552a(b)(2).
    DOT identifies a system of records that is exempt from one or more 
provisions of the Privacy Act (pursuant to 5 U.S.C. 552a (k)) both in 
the SORN published in the Federal Register for public comment and in an 
Appendix to DOT's regulations implementing the Privacy Act (49 CFR part 
10, Appendix).

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This rule would exempt records in the Aviation Consumer Complaint 
Application Online System of records from subsection (d) (Access to 
Records) of the Privacy Act to the extent that records consist of 
investigatory material compiled for law enforcement purposes in 
accordance with 5 U.S.C. 552a(k)(2).

Regulatory Analysis and Notices

A. Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The DOT has considered the impact of this proposed rulemaking 
action under Executive Orders 12866 and 13563 (January 18, 2011, 
``Improving Regulation and Regulatory Review''), and the DOT's 
regulatory policies and procedures (44 FR 11034; February 26, 1979). 
The DOT has determined that this action would not constitute a 
significant regulatory action within the meaning of Executive Order 
12866 and within the meaning of DOT regulatory policies and procedures. 
This rule has not been reviewed by the Office of Management and Budget. 
There would be no costs associated with this rule.

B. Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs)

    This proposed rule is not expected to be an Executive Order 13771 
regulatory action because this proposed rule is not significant under 
Executive Order 12866.

C. Regulatory Flexibility Act

    The DOT has evaluated the effect this change would have on small 
entities and does not believe that this rule would impose any costs on 
small entities because the reporting requirements themselves would not 
change and because the rule applies only to information on individuals 
that is maintained by the Federal Government or that is already 
publicly available. Therefore, I hereby certify that this proposal 
would not have a significant economic impact on a substantial number of 
small entities.

C. National Environmental Policy Act

    The DOT has analyzed the environmental impacts of this proposed 
action pursuant to the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.) and has determined preliminarily that it is 
categorically excluded pursuant to DOT Order 5610.1C, Procedures for 
Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). 
Categorical exclusions are actions identified in an agency's NEPA 
implementing procedures that do not normally have a significant impact 
on the environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4. In analyzing the applicability of a categorical exclusion, the 
agency must also consider whether extraordinary circumstances are 
present that would warrant the preparation of an EA or EIS. Id. 
Paragraph 3.C.5 of DOT Order 5610.1C incorporates by reference the 
categorical exclusions for all DOT Operating Administrations. This 
action is covered by the categorical exclusion listed in the Federal 
Highway
    Administration's implementing procedures, ``[promulgation of rules, 
regulations, and directives.'' 23 CFR 771.117(c)(20). The purpose of 
this rulemaking is to amend the Appendix to DOT's Privacy Act 
regulations. The DOT does not anticipate any environmental impacts, and 
there are no extraordinary circumstances present in connection with 
this rulemaking.

E. Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, Federalism, 
dated August 4, 1999, and it has been determined that it would not have 
a substantial direct effect on, or sufficient Federalism implications 
for, the States, nor would it limit the policymaking discretion of the 
States. Therefore, the preparation of a Federalism Assessment is not 
necessary.

F. Executive Order 13084 (Consultation and Coordination With Indian 
Tribal Governments)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because it would not 
have an effect on Indian Tribal Governments, the funding and 
consultation requirements of Executive Order 13084 do not apply.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.). Federal agencies must obtain approval from the Office of 
Management and Budget for each collection of information they conduct, 
sponsor, or require through regulations. The DOT has determined that 
this action would not contain a collection of information requirement 
for the purposes of the PRA.

H. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4, 109 Stat. 48, March 22, 1995) requires Federal agencies to 
assess the effects of certain regulatory actions on State, local, and 
tribal governments; and the private sector. The 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, $143.1 million or more in any 
one year (adjusted for inflation), an UMRA analysis is required. This 
proposed rule would not impose Federal mandates on any State, local, or 
tribal governments; or the private sector.

List of Subjects in 49 CFR Part 10

    Penalties, Privacy.

    In consideration of the foregoing, DOT proposes to amend part 10 of 
title 49, Code of Federal Regulations, as follows:

PART 10--MAINTENANCE OF AND ACCESS TO RECORDS PERTAINING TO 
INDIVIDUALS

0
1. The authority citation for part 10 continues to read as follows:

    Authority: 5 U.S.C. 552a; 49 U.S.C. 322.

0
2. Amend the Appendix to Part 10 by: a. In Part II, adding a new 
subsection H.

APPENDIX TO PART 10--EXEMPTIONS

Part II. Specific Exemptions

* * * * *
    H. The following systems of records are exempt from subsection (d) 
(Access to records) of the Privacy Act, 5 U.S.C. 552a, to the extent 
that they contain investigatory material compiled for law enforcement 
purposes, in accordance with 5 U.S.C. 552a(k)(2).
    I. Aviation Consumer Complaint Application Online System, 
maintained by the Office of the Assistant General Counsel for Aviation 
Enforcement and Proceedings in the Office of the Secretary (DOT/OST 
102).
    This exemption is justified because granting an individual access 
to investigative records could interfere with the overall law 
enforcement process by revealing a sensitive investigative technique, 
or confidential sources or information.

    Issued in Washington DC on December 21, 2018.
Elaine L. Chao,
Secretary.
[FR Doc. 2019-01338 Filed 2-5-19; 8:45 am]
 BILLING CODE 4910-9X-P