2023-24940. Privacy Act of 1974; System of Records

AGENCY:

Office of the Departmental Chief Information Officer, Office of the Secretary of Transportation, DOT.

ACTION:

Notice of a new system of records.

SUMMARY:

In accordance with the Privacy Act of 1974, the United States Department of Transportation (DOT), Federal Aviation Administration (FAA), proposes a new system of records titled, “DOT/FAA 858 Adjudication Docket Records in Aviation Litigation Proceedings under 14 Code of Federal Regulations (CFR) part 13, subparts D and G and Acquisition Dispute Proceedings under 14 CFR part 17”. This system of records allows DOT to collect and maintain case records for in-house administrative adjudications and mediations (“adjudicative records”) in accordance with FAA procedures and regulations that support its mission of aviation safety.

DATES:

Submit comments on or before December 15, 2023. The Department may publish an amended Systems of Records Notice considering any comments received. This new system will be effective immediately upon publication. The routine uses will be effective December 15, 2023.

ADDRESSES:

You may submit comments identified by docket number DOT–OST–2023–0108 by any of the following methods:

• Federal e-Rulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments.

• 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 a.m. and 5 p.m. ET, Monday through Friday, except Federal Holidays.

• Fax: [phone].

Instructions: You must include the agency name and docket number DOT–OST–2023–0108. All comments received will be posted without change to https://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.).

Docket: For access to the docket to read background documents or comments received, go to https://www.regulations.gov or to the street address listed above. Follow the online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT:

For questions, please contact: Karyn Gorman, Departmental Chief Privacy Officer, Privacy Office, Department of Transportation, Washington, DC 20590; [e-mail]; or 202–366–3140.

SUPPLEMENTARY INFORMATION:

The adjudicative records consist of two categories of records, namely: adjudications resulting from actions in which individuals request a hearing under 14 CFR part 13, subparts D or G; and acquisition adjudications, such as bid protests, contract disputes and pre-disputes filed under 14 CFR part 17. The adjudicative records in both categories include any associated applications for attorney fees under 14 CFR part 14. The information maintained in this system of records depends on the nature of the case and includes but is not limited to: a party's name; date of birth; tax identification number (TIN) and/or social security number (SSN); certificate number, business and personal contact information ( e.g., address and phone number); medical information; drug test results; penalty history; docket number or order number; financial ( e.g., tax returns, pay stubs or bank statements) and employment-related information; as well as other personally identifiable information (PII) in exhibits and other artifacts, which vary depending on the nature of the case.

Background

In accordance with the Privacy Act of 1974, the United States DOT/FAA is proposing a new system of records notice titled, “DOT/FAA 858 Adjudication Docket Records in Aviation Litigation Proceedings under 14 CFR part 13, subparts D and G and Acquisition Dispute Proceedings under 14 CFR part 17.” The records covered by this Notice were previously covered by two separate Notices: SORN DOT/FAA 847, Aviation Records on Individuals, and SORN DOT/ALL 14, Federal Docket Management System (FDMS). To ensure consistent handling of records maintained by FAA's Office of Adjudication, DOT is proposing to consolidate adjudication docket records maintained by the Office of Adjudication into a single SORN.

This system of records covers all facets of in-house administrative adjudications and mediations (“adjudicative records”). The adjudicative records consist of two categories of records, namely: adjudications resulting from certain actions in which individuals request a hearing under 14 CFR part 13, subparts D or G (“subparts D or G records”), and acquisition adjudications (“acquisition adjudication records”), such as bid protests, contract disputes and pre-disputes filed by individuals under 14 CFR part 17. Both of these categories include any related applications for attorney fees under 14 CFR part 14.

Subparts D or G Records

Subparts D or G records are records that are generated in connection with a request for hearing and proceedings related to such a request under 14 CFR part 13, subparts D and G. FAA actions that result in the creation of records following a request for a hearing under subpart D are referenced in 14 CFR 13.20 and include orders of compliance, cease and desist orders, and orders of denial. FAA actions that result in the creation of records following a request for a hearing under subpart G are referenced in that subpart. Requests for hearings under subparts D and G are filed with the Office of Adjudication. This Notice does not cover the underlying enforcement investigative records maintained in FAA's investigative files for actions described in 14 CFR 13.16 and 13.20; those files are maintained in accordance with System of Records Notice DOT/FAA 847, Aviation Records on Individuals, to the extent they pertain to investigations pertaining to an individual.

The individual's request for a hearing initiates in-house administrative adjudication by the FAA. During the adjudication process, the individual and the FAA make arguments and submit into the case record information in connection with the litigation and their positions. This case record information often contains PII that includes but is not limited to: the individual's name; date of birth; TIN and/or SSN; certificate number, business and personal contact information ( e.g., address and phone number); medical information; drug test results; penalty history; docket number or order number; financial ( e.g., tax returns, pay stubs or bank statements) and employment-related information; as well as other PII in exhibits and other artifacts, which vary depending on the nature of the case. These records are generated under the provisions of 14 CFR part 13, subparts D and G. Associated records pertaining to requests for attorney fees are generated as a result of the requirements under 14 CFR part 14.

Subparts D or G records that are the subject of this notice are those created under 14 CFR part 13, subparts D and G, following an individual's request for a hearing under those subparts. These individuals consist of any members of the public who are subject to FAA statutes and regulations those who fall within the ambit of §§ 13.16 and 13.20, who request a hearing under those sections, and who are the subject of documents generated through litigation under those sections.

Acquisition Adjudication Records

Acquisition adjudication records pertain to acquisition actions filed by a party who does, or seeks to do, business with the FAA; this Notice applies to those actions filed by parties who conduct, or seek to conduct business with the FAA in their personal capacity. It does not apply to actions filed by businesses or other non-person entities. An acquisition matter could involve a contract dispute between a party and the FAA over rental payments. A bid protest filed by a party against an adverse evaluation by the FAA of their financial capability to perform a contract is another possible acquisition matter. These parties submit records to support their contract dispute or bid protest, that includes but is not limited to: a party's name, date of birth, TIN and/or SSN; business and personal contact information (address and phone number); docket number or order number; financial ( e.g., tax returns, pay stubs or bank statements) and employment-related information; as well as other PII in exhibits and other artifacts, which vary depending on the nature of the case.

Acquisition adjudication records cover: parties who file, and are the subjects of, bid protests, contract disputes, pre-disputes and any associated application for attorney fees, pursuant to 14 CFR parts 17 and 14 (respectively), with the Office of Adjudication's Office of Dispute Resolution for Acquisition (ODRA). These parties can include:

Individuals who are contractors, lessors, offerors, and members of the public who do, or seek to do business with the FAA in their personal capacity.

Privacy Act

The Privacy Act (5 U.S.C. 552a) governs the means by which the Federal Government collects, maintains, and uses personally identifiable information (PII) in a System of Records. A “System of Records” is a group of any records under the control of a Federal agency from which information about individuals is retrieved by name or other personal identifier. The Privacy Act requires each agency to publish in the Federal Register a System of Records Notice (SORN) identifying and describing each System of Records the agency maintains, including the purposes for which the agency uses PII in the system, the routine uses for which the agency discloses such information outside the agency, and how individuals to whom a Privacy Act record pertains can exercise their rights under the Privacy Act ( e.g., to determine if the system contains information about them and to contest inaccurate information). In accordance with 5 U.S.C. 552a(r), DOT has provided a report of this system of records to the Office of Management and Budget and to Congress.

SYSTEM NAME AND NUMBER:

Department of Transportation, Federal Aviation Administration, DOT/FAA 858 Adjudication Docket Records in Aviation Litigation Proceedings under 14 CFR part 13, subparts D and G and Acquisition Dispute Proceedings under 14 CFR part 17.

SECURITY CLASSIFICATION:

Unclassified

SYSTEM LOCATION:

System records are maintained at FAA headquarters in the Office of Adjudication. Address: 800 Independence Avenue SW, Washington, DC 20591.

SYSTEM MANAGER(S):

For adjudication records in pending cases: Director, Office of Adjudication, AGC–70, 800 Independence Ave. SW, Washington, DC 20591. [e-mail] [for Subparts D or G adjudication records] or [e-mail] [for acquisition adjudication records].

For finalized adjudication records in closed cases stored in the Case and Document Management System (CDMS): Director, Administrative Division, AGC–10, 800 Independence Ave. SW, Washington, DC 20591.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

49 U.S.C. 106, 44701, 40113–40114, and 46101–46110; 14 CFR part 13, subparts D and G; 14 CFR parts 14 and 17.

PURPOSE(S) OF THE SYSTEM:

The purpose of the system is to allow DOT to collect and maintain case records for in-house administrative adjudications and mediations (“adjudicative records”) in accordance with FAA procedures and regulations that support its mission of aviation safety. The adjudicative records consist of two categories of records, namely: legal proceedings resulting from adjudications resulting from certain actions in which individuals request a hearing under 14 CFR part 13, subparts D or G; and acquisition adjudications, such as bid protests, contract disputes and pre-disputes filed under 14 CFR part 17. The adjudicative records in both categories include any associated applications for attorney fees under 14 CFR part 14.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

This system of records contains information on individual members of the public who are parties in aviation litigation adjudication proceedings under 14 CFR part 13, subparts D and G or acquisition adjudication proceedings under 14 CFR part 17.

Subparts D or G Records: Individuals who request a hearing under 14 CFR part 13, subparts D and G, resulting from an FAA-initiated action described in 14 CFR 13.16 and 13.20: These individuals consist of those who fall within the ambit of §§ 13.16 and 13.20, who request a hearing under those sections, and who are the subject of documents generated through litigation under those sections.

Acquisition Adjudication Records: Parties who file, and are the subjects of, bid protests, contract claims, pre-disputes and associated applications for attorney fees, pursuant to 14 CFR parts 17 and 14 (respectively), with the ODRA relative to contracts competed or awarded under the FAA's acquisition policies and procedures. These parties can include:

Individuals who are contractors, lessors, offerors, and members of the public who do, or seek to do business with the FAA in their personal capacity.

CATEGORIES OF RECORDS IN THE SYSTEM:

The types of PII contained within the categories of records in this system of records depend on the nature of the case, and include but are not limited to:

Subparts D or G Records: Subparts D or G records are records that are generated as a result of a request for a hearing under 14 CFR part 13, subparts D and G, resulting from an FAA-initiated legal enforcement action described in 14 CFR 13.16 and 13.20. Such records may include a party's name, date of birth; TIN and/or SSN; certificate number, business and personal contact information ( e.g., address and phone number); medical information; drug test results; penalty history; docket number or order number; financial ( e.g., tax returns, pay stubs or bank statements) and employment-related information; as well as other PII in exhibits and other artifacts, which vary depending on the nature of the case. These records are generated as a result of the provisions of 14 CFR part 13, subparts D and G.

Acquisition Adjudication Records: A party's name, date of birth, TIN and/or SSN; business and personal contact information (address and phone number); docket number or order number; financial ( e.g., tax returns, pay stubs or bank statements) and employment-related information; as well as other PII in exhibits and other artifacts, which vary depending on the nature of the case.

RECORD SOURCE CATEGORIES:

Subparts D or G Records: Subparts D or G records that are the subject of this notice are those created under 14 CFR part 13, subparts D and G, following an individual's request for a hearing under those subparts. These individuals consist of: those individuals who fall within the ambit of §§ 13.16 and 13.20, who request a hearing under those sections, and who are the subject of documents generated through litigation under those sections.

Acquisition Adjudication Records: Parties who file, and are the subjects of, bid protests, contract claims, pre-disputes and associated applications for attorney fees, pursuant to 14 CR parts 17 and 14 (respectively), with the ODRA relative to contracts competed or awarded under the FAA's acquisition policies and procedures.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:

In addition to other disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DOT as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:

System Specific Routine Use

1. The FAA may provide public versions of decisions and orders, which have been sanitized to remove any sensitive PII, proprietary, source-selection or other confidential information, as a routine use, to commercial publishers of legal materials for inclusion in print editions and online services for the same reasons. Public versions of decisions and orders published on the FAA website or by commercial publishers such as Westlaw or LexisNexis may contain the names of parties, attorneys, legal representatives, witnesses, and other individuals involved in the case.

Departmental Routine Uses

2. In the event that a system of records maintained by DOT to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the appropriate agency, whether Federal, State, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto.

3. A record from this system of records may be disclosed, as a routine use, to a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to a DOT decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit.

4. A record from this system of records may be disclosed, as a routine use, to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.

5a. Routine Use for Disclosure for Use in Litigation. It shall be a routine use of the records in this system of records to disclose them to the Department of Justice, or other Federal agencies conducting litigation when (a) DOT, or any agency thereof, or (b) Any employee of DOT or any agency thereof in their official capacity, or (c) Any employee of DOT or any agency thereof, in their individual capacity, where the Department of Justice has agreed to represent the employee, or (d) The United States or any agency thereof, where DOT determines that litigation likely to affect the United States, is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice or other Federal agency conducting the litigation is deemed by DOT to be relevant and necessary in the litigation, provided, however, that in each case, DOT determines that disclosure of the records in the litigation is a use of the information contained in the records that is compatible with the purpose for which the records were collected.

5b. Routine Use for Agency Disclosure in Other Proceedings. It shall be a routine use of records in this system to disclose them in proceedings before any court or adjudicative or administrative body before which DOT or any agency thereof appears when (a) DOT, or any agency thereof, or (b) Any employee of DOT or any agency thereof in their official capacity, or (c) Any employee of DOT or any agency thereof in their individual capacity where DOT has agreed to represent the employee, or (d) The United States or any agency thereof, where DOT determines that the proceeding is likely to affect the United States, is a party to the proceeding, or has an interest in such proceeding, and DOT determines that use of such records is relevant and necessary in the proceeding, provided, however, that in each case, DOT determines that disclosure of the records in the proceeding is a use of the information contained in the records that is compatible with the purpose for which the records were collected.

6. The information contained in this system of records will be disclosed to the Office of Management and Budget, OMB in connection with the review of private relief legislation as set forth in OMB Circular No. A–19 at any stage of the legislative coordination and clearance process as set forth in that Circular.

7. Disclosure may be made to a Congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual. In such cases, however, the congressional office does not have greater rights to records than the individual. Thus, the disclosure may be withheld from delivery to the individual where the file contains investigative or actual information or other materials which are being used, or are expected to be used, to support prosecution or fines against the individual for violations of a statute, or of regulations of the Department based on statutory authority. No such limitations apply to records requested for Congressional oversight or legislative purposes; release is authorized under 49 CFR 10.35(9).

8. One or more records from a system of records may be disclosed routinely to the National Archives and Records Administration (NARA) in records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.

9. Routine Use for disclosure to the Coast Guard and to Transportation Security Administration. A record from this system of records may be disclosed as a routine use to the Coast Guard and to the Transportation Security Administration if information from this system was shared with either agency when that agency was a component of the Department of Transportation before its transfer to the Department of Homeland Security and such disclosure is necessary to accomplish a DOT, TSA or Coast Guard function related to this system of records.

10. DOT may make available to another agency or instrumentality of any government jurisdiction, including State and local governments, listings of names from any system of records in DOT for use in law enforcement activities, either civil or criminal, or to expose fraudulent claims, regardless of the stated purpose for the collection of the information in the system of records. These enforcement activities are generally referred to as matching programs because two lists of names are checked for match using automated assistance. This routine use is advisory in nature and does not offer unrestricted access to systems of records for such law enforcement and related antifraud activities. Each request will be considered on the basis of its purpose, merits, cost effectiveness and alternatives using Instructions on reporting computer matching programs to the Office of Management and Budget, OMB, Congress, and the public, published by the Director, OMB, dated September 20, 1989.

11. It shall be a routine use of the information in any DOT system of records to provide to the Attorney General of the United States, or his/her designee, information indicating that a person meets any of the disqualifications for receipt, possession, shipment, or transport of a firearm under the Brady Handgun Violence Prevention Act. In case of a dispute concerning the validity of the information provided by DOT to the Attorney General, or his/her designee, it shall be a routine use of the information in any DOT system of records to make any disclosures of such information to the National Background Information Check System, established by the Brady Handgun Violence Prevention Act, as may be necessary to resolve such dispute.

12a. DOT may disclose records from this system, as a routine use, to appropriate agencies, entities, and persons when: (1) DOT suspects or has confirmed that there has been a breach of the system of records; (2) DOT has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DOT (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DOT's efforts to respond to the suspected or confirmed breach or to prevent, minimize or remedy such harm.

12b. To another Federal agency or Federal entity, when DOT determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.

13. DOT may disclose records from this system, as a routine use, to the Office of Government Information Services for the purpose of (a) resolving disputes between FOIA requesters and Federal agencies and (b) reviewing agencies policies, procedures and compliance in order to recommend policy changes to Congress and the President.

14. DOT may disclose records from this system, as a routine use, to contractors and their agents, experts, consultants, and other performing or working on a contract, service, cooperative agreement, or other assignment for DOT, when necessary to accomplish an agency function related to this system of records.

15. DOT may disclose records from this system, as a routine use, to an agency, organization or individual for the purpose of performing audit or oversight operations related to this system of records, but only such records as are necessary and relevant to the audit or oversight activity. This routine use does not apply to intra-agency sharing authorized under Section (b)(1) of the Privacy Act.

16. DOT may disclose from this system, as a routine use, records consisting of, or relating to, terrorism information (6 U.S.C. 485(a)(5)), homeland security information (6 U.S.C. 482(f)(1)), or Law enforcement information (Guideline 2 Report attached to White House Memorandum, “Information Sharing Environment,” November 22, 2006) to a Federal, State, local, Tribal, Territorial, foreign government and/or multinational agency, either in response to its request or upon the initiative of the component for purposes of sharing such information as is necessary and relevant for the agencies to detect, prevent, disrupt, preempt, and mitigate the effects of terrorist activities against the territory, people and interests of the United States of America, as contemplated by the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108–458) and Executive Order 13388 (October 25, 2005).

POLICIES AND PRACTICES FOR STORAGE OF RECORDS:

Records are initially stored electronically on a shared drive and then are migrated to CDMS, once the case is finalized.

POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:

All records are primarily retrieved by personal identifiers, such as party name, docket number, or order number.

POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:

The FAA is drafting a retention and disposition schedule for adjudicative records; currently all records retention schedules are pending. Unscheduled records are retained indefinitely pending the agency's submission, and (National Archives and Records Administration) NARA's approval, of a disposition schedule. FAA anticipates proposing to NARA the following retention periods:

1. In-house administrative adjudication final orders and decisions are precedential, permanently retained, and transferred to NARA 15 years after the case closes.

2. In-house adjudicative records, excluding final orders and decisions, in adjudications not appealed to and litigated in federal court are destroyed 5 years after the case closes.

3. In-house adjudicative records in adjudications appealed to and litigated in federal court are permanently retained, and transferred to NARA 15 years after the case closes.

ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:

Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DOT FAA automated systems security and access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.

RECORD ACCESS PROCEDURES:

Individuals seeking notification of whether this system of records contains information about them may contact the System Manager at the address provided in the section “System Manager”. When seeking records about yourself from this system of records or any other Departmental system of records your request must conform to the Privacy Act regulations set forth in 49 CFR part 10. You must sign your request and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.

CONTESTING RECORD PROCEDURES:

See “Record Access Procedures” above.

NOTIFICATION PROCEDURES:

See “Record Access Procedures” above.

EXEMPTIONS PROMULGATED FOR THE SYSTEM:

None.

HISTORY:

None.

Issued in Washington, DC.

Karyn Gorman,

Departmental Chief Privacy Officer.