Maintenance of and Access to Records Pertaining to Individuals; Proposed Exemption, 55334-55335 [2011-22729]

Agencies

• Office of the Secretary
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 173 (Wednesday, September 7, 2011)]
[Proposed Rules]
[Pages 55334-55335]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22729]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 10

[Docket No. OST-1996-1437]
RIN 2105-AD11


Maintenance of and Access to Records Pertaining to Individuals; 
Proposed Exemption

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: DOT proposes to add a system of records relating to suspicious 
activity reporting to the list of DOT Privacy Act Systems of Records 
that are exempt from one or more provisions of the Privacy Act. Public 
comment is invited.

DATES: Comments are due October 7, 2011. If no comments are received by 
the due date, the proposal will take effect as proposed and comments 
addressed accordingly. If comments are received by the due date, the 
proposal will still take effect as proposed and the comments addressed 
accordingly.

ADDRESSES: You may submit comments [identified by DOT DMS Docket Number 
[OST-1996-1437] by any of the following methods:
    Web site: https://www.regulations.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.

ADDRESSES: You may submit comments and reply comments using any one of 
the following methods:
    Initial comments will be made available promptly electronically, 
online on https://www.regulations.gov, or for public inspection in room 
W12-140, DOT Building, 1200 New Jersey Avenue, SE., Washington, DC, 
between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal 
holidays. In order to allow sufficient opportunity for interested 
parties to prepare and submit any reply comments, late-filed initial 
comments will not be considered. Reply comments must address only 
matters raised in initial comments and must not be used to present new 
arguments, contentions, or factual material that is not responsive to 
the initial comments.

ADDRESSES: You may submit comments and reply comments identified by 
docket number OST-1996-1437 using any one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov.
     Fax: 202-493-2251.
     Mail: Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand delivery: Same as mail address above, between 9 a.m. 
and 5 p.m., ET Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

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 at (202) 366-1835.

SUPPLEMENTAL INFORMATION: It is DOT practice to identify a Privacy Act 
system of records that is exempt from one or more provisions of the 
Privacy Act (pursuant to 5 U.S.C. 552a(j) or (k)) both in the system 
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 A). This amendment proposes exemption from certain 
portions of the Privacy Act of a proposed record system--the Suspicious 
Activity Reporting (SAR) database--to be used to track observed 
behavior reasonably indicative of pre-operational planning related to 
terrorism or other criminal activity. To aid in the law enforcement 
aspects of SAR, DOT proposes to treat it as it treats other law 
enforcement systems, by exempting it from the following provisions of 
the Privacy Act: (c)(3) (Accounting of Certain Disclosures), (d) 
(Access to Records), (e)(4)(G), (H), and (I) (Agency Requirements), and 
(f) (Agency Rules), to the extent that SAR contains investigatory 
material compiled for law enforcement purposes, in accordance with 5 
U.S.C. 552a(k)(2).\1\
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    \1\ (c)(3)--An agency making disclosures of information that is 
covered by the Privacy Act must keep an accounting of those 
disclosures and, under (c)(3), make that accounting available to the 
subject upon the subject's request. The exemption from (c)(3) means 
that, although we still have to maintain the accounting, we do not 
have to provide it to the subject.
    (d)--One of the essential elements of the Privacy Act is the 
subject's right of access to information in any file covered by the 
Privacy Act that is retrieved by the subject's name or other 
personal identifier, such as social security number. In this way, 
the subject can test the validity of the information. The exemption 
from (d) means that we do not have to grant the subject access to 
the information.
    (e)(1)--Another essential element of the Privacy Act is to limit 
the collection and maintenance of information subject to the Act to 
information that is relevant and necessary to carry out a lawful 
activity of the agency that collects or maintains the information. 
The exemption from (e)(1) means that we are not limited to 
information that is relevant and necessary. In practical terms, the 
subject may contest the relevancy and necessity of any information 
in the file; however, given the exemption from (d), above, the 
subject has no way to verify what is in the file, so is unable to 
contest its relevancy or necessity. Hence, a formal exemption from 
(e)(1) is not needed.
    (e)(4)(G), (H), and (I)--To equip a subject to verify 
information in a file, we are required by the Privacy Act to publish 
in the public notice of the existence of the information procedures 
informing subjects how to learn from us whether we have records on 
them, procedures on how subjects can gain access to their files, and 
procedures to identify for subjects the categories of record sources 
in the file. The exemption from (e)(4)(G), (H), and (I) means that 
we need not publish these procedures for this file. Again, if we do 
not have to grant access, these provisions have no meaning.
    (f)--We are also required to publish regulations governing how 
subjects can learn if they are included in any of our Privacy Act 
files, how they must prove their identities before we can grant them 
access, and governing access to their files, their rights to have 
information in the files amended and their rights to appeal our 
refusal to grant access and make amendments. Since there is no right 
to access, these derivative rights, as with the others, are moot.

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[[Page 55335]]

    Analysis of Regulatory Impacts. This proposal is not a 
``significant regulatory action'' within the meaning of Executive Order 
12886. It is also not significant within the definition in DOT's 
Regulatory Policies and Procedures, 49 FR 11034 (1979), in part because 
it does not involve any change in important Departmental policies. 
Because the economic impact should be minimal, further regulatory 
evaluation is not necessary. Moreover, I certify that this proposal 
would 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 that 
is maintained by the Federal Government.
    This proposal would not significantly affect the environment, and 
therefore an environmental impact statement is not required under the 
National Environmental Policy Act of 1969. It has also been reviewed 
under Executive Order 12612, Federalism, and it has been determined 
that it does not have sufficient implications for Federalism to warrant 
preparation of a Federalism Assessment.
    Collection of Information. This proposal contains no collection of 
information requirements under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.)
    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 aggregated, $100 million or more in any one 
year (adjusted for inflation) the UMRA analysis is required. This 
proposal would not impose Federal mandates on any State, local, or 
tribal governments or the private sector.

List of Subjects in 49 CFR Part 10

    Authority delegations (government agencies); Organization and 
functions (government agencies); Penalties; Privacy; Transportation 
Department.

    In consideration of the foregoing, DOT proposes to amend Part 10 of 
Title 49, Code of Federal Regulations, as follows:
    1. The authority citation for Part 10 would continue to read as 
follows:

    Authority:  Pub. L. 93-579; 49 U.S.C. 322.

    2. The Appendix would be amended by inserting in of Part II.A. a 
new paragraph 8, immediately following paragraph 7, to read as follows:

Appendix A--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):
* * * * *
    8. Suspicious Activity Reporting (SAR) database, maintained by 
the Office of Intelligence, Security, and Emergency Response, Office 
of the Secretary.

    Issued in Washington, DC, on: August 31, 2011.
 Claire W. Barrett,
Departmental Chief Privacy Officer.

[FR Doc. 2011-22729 Filed 9-6-11; 8:45 am]
BILLING CODE 4910-62-P