[Federal Register Volume 84, Number 100 (Thursday, May 23, 2019)]
[Rules and Regulations]
[Pages 23728-23730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10730]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 10

[Docket No. OST-2016-0028]
RIN 2105-AE46


Maintenance of and Access to Records Pertaining to Individuals

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

ACTION: Final rule.

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SUMMARY: On October 4, 2018, the Department of Transportation issued a 
notice of proposed rulemaking requesting comment on proposed exemptions 
from certain requirements of the Privacy Act for the Department's 
insider threat program system of records. The exemptions are necessary 
to protect properly classified information from disclosure, preserve 
the integrity of insider threat inquiries, and protect the identities 
of sources in such inquiries and any related investigations. The 
Department received no comments on this proposed rule. As a result, 
this final rule will finalize the proposed rule without change.

DATES: This final rule is effective May 23, 2019.

ADDRESSES: You may access docket number DOT-OST-2016-0028 by any of the 
following methods:
     Federal Rulemaking Portal: Go to http://www.regulations.gov.
     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.
     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.
     Fax: 202-493-2251.

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: DOT identifies a system of records that is 
exempt from one or more provisions off the Privacy Act (pursuant to 5 
U.S.C. 552a(j) or (k)) both in the system of records notice 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). 
This rule exempts records in the Insider Threat Program system of 
records from subsections (c)(3) (Accounting of Disclosures), (d) 
(Access to Records), (e)(1) and (e)(4)(G) through (I) (Agency 
Requirements) and (f) (Agency Rules) of the Privacy Act to the extent 
that records are properly classified, in accordance with 5 
U.S.C.552a(k)(1), or consist of investigatory material compiled for law 
enforcement purposes in accordance with 5 U.S.C. 552a(k)(2).
    As DOT received no comments on the notice of proposed rulemaking 
published on October 4, 2018 (83 FR 50053), we are finalizing the 
proposed rule without change.

Regulatory Analysis and Notices

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

    DOT considered the impact of this rulemaking action under Executive 
Orders 12866 and 13563 (January 18, 2011, ``Improving Regulation and 
Regulatory Review''), and DOT Order 2100.6, ``Policies and Procedures 
for Rulemakings.'' DOT has determined that this action will not 
constitute a significant regulatory action within the meaning of 
Executive Order 12866 and within the meaning of DOT regulatory policies 
and procedures. This rulemaking has not been reviewed by the Office of 
Management and Budget. This rulemaking will not result in any costs. 
Since these records would be exempt from certain provisions of the 
Privacy Act, DOT would not have to expend any funds in order to 
administer those aspects of the Act.

B. Regulatory Flexibility Act

    DOT has evaluated the effect these changes will have on small 
entities and does not believe that this rulemaking will impose any 
costs on small entities because the reporting requirements themselves 
are not changed 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 rule 
will not have a significant economic impact on a substantial number of 
small entities.

C. National Environmental Policy Act

    DOT has analyzed the environmental impacts of this final action 
pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.) and has determined 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, ``[p]romulgation 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 Department does not 
anticipate any environmental impacts and there are no extraordinary 
circumstances present in connection with this rulemaking.

E. Executive Order 13132 (Federalism)

    This 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 will 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 
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.),

[[Page 23729]]

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 
does 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 
final rule does 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 amends 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.

Appendix to Part 10 [Designated as Appendix A to Part 10 and Amended]

0
2. Designate the appendix to part 10 as appendix A to part 10 and amend 
newly designated appendix A, in Part II, by revising sections A., B., 
F., and G. to read as follows:

Appendix A to Part 10--Exemptions

* * * * *

Part II. Specific Exemptions

    A. The following systems of records are exempt from subsection 
(c)(3) (Accounting of Certain Disclosures), (d) (Access to Records), 
(e)(4)(G), (H), and (I) (Agency Requirements), and (f) (Agency 
Rules) of 5 U.S.C. 552a, to the extent that they contain 
investigatory material compiled for law enforcement purposes, in 
accordance 5 U.S.C. 552a(k)(2):
    1. Investigative Record System (DOT/FAA 815) maintained by the 
Federal Aviation Administration at the Office of Civil Aviation 
Security in Washington, DC; the FAA regional Civil Aviation Security 
Divisions; the Civil Aviation Security Division at the Mike Monroney 
Aeronautical Center in Oklahoma City, Oklahoma; the FAA Civil 
Aviation Security Staff at the FAA Technical Center in Atlantic 
City, New Jersey; and the various Federal Records Centers located 
throughout the country.
    2. FHWA Investigations Case File System, maintained by the 
Office of Program Review and Investigations, Federal Highway 
Administration (DOT/FHWA 214).
    3. Federal Motor Carrier Safety Administration (FMCSA) 
Enforcement Management Information System, maintained by the Chief 
Counsel, FMCSA (DOT/FMCSA 002).
    4. DOT/NHTSA Investigations of Alleged Misconduct or Conflict of 
Interest, maintained by the Associate Administrator for 
Administration, National Highway Traffic Safety Administration (DOT/
NHTSA 458).
    5. Civil Aviation Security System (DOT/FAA 813), maintained by 
the Office of Civil Aviation Security Policy and Planning, Federal 
Aviation Administration.
    6. Suspected Unapproved Parts (SUP) Program, maintained by the 
Federal Aviation Administration (DOT/FAA 852).
    7. Motor Carrier Management Information System (MCMIS), 
maintained by the Federal Motor Carrier Safety Administration (DOT/
FMCSA 001).
    8. Suspicious Activity Reporting (SAR) database, maintained by 
the Office of Intelligence, Security, and Emergency Response, Office 
of the Secretary.
    9. Departmental Office of Civil Rights System (DOCRS).
    10. Insider Threat Program (DOT/ALL 26).
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/
her would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to 
avoid the thrust of the investigation, etc.
    2. From subsections (d), (e)(4)(G), (H), and (I), and (f), 
because granting an individual access to investigative records, and 
granting him/her access to investigative records with that 
information, could interfere with the overall law enforcement 
process by revealing a pending sensitive investigation, possibly 
identify a confidential source, disclose information that would 
constitute an unwarranted invasion of another individual's personal 
privacy, reveal a sensitive investigative technique, or constitute a 
potential danger to the health or safety of law enforcement 
personnel.
    B. The following systems of records are exempt from subsections 
(c)(3) (Accounting of Certain Disclosures) and (d) (Access to 
Records) of 5 U.S.C. 552a, in accordance with 5 U.S.C. 552a(k)(2):
    1. General Air Transportation Records on Individuals, maintained 
by various offices in the Federal Aviation Administration (DOT/FAA 
847).
    2. Investigative Records System, maintained by the Assistant 
Inspector General for Investigations in the Office of the Inspector 
General (DOT/OST 100).
    3. General Investigations Record System, maintained by the 
Office of Investigations and Security, Office of the Secretary (DOT/
OST 016).
    4. Insider Threat Program (DOT/ALL 26).
    These exemptions are justified for the following reasons:
    1. From subsection (c)(3), because making available to a record 
subject the accounting of disclosures from records concerning him/
her would reveal investigative interest by not only DOT but also the 
recipient agency, thereby permitting the record subject to take 
appropriate measures to impede the investigation, as by destroying 
evidence, intimidating potential witnesses, fleeing the area to 
avoid the thrust of the investigation, etc.
    2. From subsection (d), because granting an individual access to 
investigative records could interfere with the overall law 
enforcement process by revealing a pending sensitive investigation, 
possibly identify a confidential source, disclose information that 
would constitute an unwarranted invasion of another individual's 
personal privacy, reveal a sensitive investigative technique, or 
constitute a potential danger to the health or safety of law 
enforcement personnel.
* * * * *
    F. Those portions of the following systems of records which 
consist of information properly classified in the interest of 
national defense or foreign policy in accordance with 5 U.S.C. 
552(b)(1) are exempt from sections (c)(3) (Accounting of Certain 
Disclosures), (d) (Access to Records), (e)(4) (G), (H) and (I) 
(Agency Requirements), and (f) (Agency Rules) of 5 U.S.C. 552a:
    1. Investigative Record System maintained by the Assistant 
Inspector General for Investigations in the Office of the Inspector 
General (DOT/OST 100).
    2. Personnel Security Records System, maintained by the Office 
of Investigations and Security, Office of the Secretary (DOT/OST 
035).
    3. Civil Aviation Security System (DOT/FAA 813), maintained by 
the Office of Civil Aviation Security, Federal Aviation 
Administration.
    4. General Investigations Record System, maintained by the 
Office of Investigations and Security, Office of the Secretary (DOT/
OST 016).
    5. Insider Threat Program (DOT/ALL 26).
    The purpose of these exemptions is to prevent the disclosure of 
material authorized to be kept secret in the interest of national 
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 
552a(k)(1).
    G. Those portions of the following systems of records which 
consist of information properly classified in the interest of 
national defense or foreign policy in accordance with 5 U.S.C. 
552a(b)(1) are exempt from subsections (c)(3) (Accounting of Certain 
Disclosures) and (d) (Access to Records) of 5 U.S.C. 552a:
    1. Investigative Record System (DOT/FAA 815) maintained by the 
Federal Aviation

[[Page 23730]]

Administration at the Office of Civil Aviation Security in 
Washington, DC; the FAA regional Civil Aviation Security Divisions; 
the Civil Aviation Security Division at the Mike Monroney 
Aeronautical Center in Oklahoma City, Oklahoma; the FAA Civil 
Aviation Security Staff at the FAA Technical Center in Atlantic 
City, New Jersey; and the various Federal Records Centers located 
throughout the country.
    2. Insider Threat Program (DOT/ALL 26).
    The purpose of these exemptions is to prevent the disclosure of 
material authorized to be kept secret in the interest of national 
defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 
552a(k)(1).

    Issued in Washington, DC, on May 8, 2019.
Elaine L. Chao,
Secretary.
[FR Doc. 2019-10730 Filed 5-22-19; 8:45 am]
 BILLING CODE 4910-9X-P