05-10632. Privacy Act of 1974: Implementation of Exemptions; Registered Traveler Operations Files

AGENCY:

Transportation Security Administration (TSA), DHS.

ACTION:

Final rule.

SUMMARY:

TSA is issuing a final rule that will exempt the Registered Traveler Operations Files (DHS/TSA 015) from several provisions of the Privacy Act of 1974 to prevent the unauthorized disclosure of classified and law enforcement information.

DATES:

Effective July 8, 2005.

FOR FURTHER INFORMATION CONTACT:

Lisa Dean, Privacy Officer, Office of Transportation Security Policy, TSA-9, 601 South 12th Street, Arlington, VA 22202-4220; telephone [phone].

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Document

You may obtain 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.gpoaccess.gov/​fr/​index.html; or

(3) Visiting the TSA's Law and Policy Web page at http://www.tsa.gov/​public.

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.

Small Entity Inquiries

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information and advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in FOR FURTHER INFORMATION CONTACT. Persons can obtain further information regarding SBREFA on the Small Business Administration's Web page at http://www.sba.gov/​advo/​laws/​law_​lib.html.

Background

On June 1, 2004, TSA published a notice in the Federal Register establishing a new system of records titled “Registered Traveler Operations Files (DHS/TSA 015),” which governs records related to the Registered Traveler (RT) pilot program. See 69 FR 30948. TSA is currently conducting a pilot program at a limited number of airports to test and evaluate the merits of the RT program, in which travelers may volunteer to undergo a limited security threat assessment in order to expedite the pre-boarding process.

In conjunction with the establishment of Registered Traveler Operations Files (DHS/TSA 015), TSA published a notice of proposed rulemaking on September 8, 2004, to exempt this system of records from several provisions of the Privacy Act. See 69 FR 54256. Specifically, TSA proposed to exempt the system of records from 5 U.S.C. 552a(c)(3) (accounting of disclosures); (d) (access to records); (e)(1) (relevancy and necessity of information); (e)(4)(G), (H) and (I) (agency requirements); and (f) (agency rules) pursuant to exemptions (k)(1) and (k)(2) of the Act. TSA claimed these exemptions in accordance with the Privacy Act so that the security aspects of the system may properly function, and to prevent the unauthorized disclosure of classified and law enforcement information.

TSA did not receive any comments on the proposed rule but made two minor, non-substantive changes. TSA revised § 1507.3(i)(1) (Accounting for Disclosures) to reflect the fact that the “investigative interest” involved may be on the part of the Department of Homeland Security or other law enforcement or recipient agencies. In § 1507.3(i)(2) (Access to Records) TSA also revised the reference “security sensitive information” to read “sensitive security information protected pursuant to 49 U.S.C. 114(s) and 49 CFR part 1520 * * *”. TSA therefore adopts the proposed rule as final with these minor modifications.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501. et seq.) requires that TSA consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations. TSA has determined that there are no current or new information collection requirements associated with this rule.

Analysis of Regulatory Impacts

This rule 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 rule will 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 rule will not impose Federal mandates on any State, local, or tribal government or the private sector.

Executive Order 13132, Federalism

TSA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will 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 will 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
• Transportation security

The Amendment

In consideration of the foregoing, the Transportation Security Administration amends part 1507 of Chapter XII, Title 49 of the Code of Federal Regulations, as follows:

PART 1507—PRIVACY ACT-EXEMPTIONS

1. The authority citation for part 1507 is revised to read as follows:

Authority: 49 U.S.C. 114(l)(1), 40113, 5 U.S.C. 552a(j) and (k).

2. Add a new paragraph (i) to § 1507.3 to read as follows:

§ 1507.3

Exemptions.

* * * * *

(i) Registered Traveler Operations Files (DHS/TSA 015). The purpose of this system is to pre-screen and positively identify volunteer travelers using advanced identification technologies and conduct a security threat assessment to ensure that the volunteer does not pose a security threat. This system may expedite the pre-boarding process for the traveler and improve the allocation of TSA's security resources on individuals who may pose a security threat. Pursuant to exemptions (k)(1) and (k)(2) of the Privacy Act, DHS/TSA 015 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 heightened security concerns relating to an actual or potential criminal, civil, or regulatory violation to the existence of an investigative interest on the part of the Department of Homeland Security or another Federal law enforcement or other 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 program suitability determination, which undermines the entire system.

(2) From subsection (d) (Access to Records) because access to some of the records contained in this system of records could permit the individual who is the subject of a record to impede the program suitability determination. Amendment of the records would interfere with ongoing security assessment investigations and program suitability determinations and impose an impossible administrative burden by requiring such investigations to be continuously reinvestigated. The information contained in the system may also include 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 sensitive security information protected pursuant to 49 U.S.C. 114(s) and 49 CFR part 1520, the disclosure of which could be detrimental to transportation security.

(3) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of screening applicants for program suitability, TSA must be able to review information from a variety of sources. What information is relevant and necessary may not always be apparent until after the evaluation is completed. In the interests of transportation security, it is appropriate to include a broad range of information that may aid in determining an applicant's suitability for the Registered Traveler program.

(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 May 24, 2005.

David M. Stone,

Assistant Secretary.