[Federal Register Volume 79, Number 191 (Thursday, October 2, 2014)]
[Rules and Regulations]
[Pages 59448-59450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23470]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 10
[Docket No. OST-2014-0142]
RIN 2105-AE36
Maintenance of and Access to Records Pertaining to Individuals
AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).
ACTION: Interim rule with request for comments.
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SUMMARY: This rule conforms DOT's regulations on Maintenance of and
Access to Records Pertaining to Individuals to the applicable System of
Records Notices (SORNs) and current DOT practice. This rule adds the
General Investigation Records System to the list of DOT Privacy Act
Systems of Records that are exempt from one or more provisions of the
Privacy Act. DOT also exempts the Personnel Security Record System from
additional provisions of the Privacy Act, as well as correcting the
identification number for that System. These exemptions were initially
established in 1975; however, a 1980 rulemaking accidentally omitted
these exemptions. These changes are effective immediately, though DOT
invites public comment.
DATES: This rule is effective on October 2, 2014. Comment Closing Date:
Comments on the revised Appendix are due on November 3, 2014.
ADDRESSES: You may file comments identified by the docket number DOT-
OST-2014-0142 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-2014-0142 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
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.
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 which may be retrieved by reference 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
[[Page 59449]]
notify the public of that exemption in both the SORN and in an
exemption rule. This rule clarifies that portions of the General
Investigations Records System and Personnel Security Records 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.
The 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(j) or
(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). This rule amends the Appendix
by exempting those portions of the General Investigations Records
System (DOT/OST 016) compiled in the context of an investigation from
all portions of the Privacy Act, except the following subsections: (b)
(Conditions of disclosure); (c)(1) and (2) (Accounting of certain
disclosures); (e)(4)(A) through (F) (Publication of existence and
character of system); (e)(6) (Ensure records are accurate, relevant,
timely, and complete before disclosure to person other than an agency
and other than pursuant to a Freedom of Information Act request);
(e)(6) (Ensure records are accurate, relevant, timely, and complete
before disclosure to person other than an agency and other than
pursuant to a Freedom of Information Act request); (e)(7) (Restrict
record keeping on First Amendment Rights); (e)(9) (Rules of conduct);
(e)(10) (Safeguards); (e)(11) (Routine use publication); and (i)
(Criminal penalties).
This rule also exempts records in the General Investigations
Records System from subsections (c)(3) (Accounting of Certain
Disclosures) and (d) (Access to Records) to the extent that records
consist of investigatory material compiled for law enforcement
purposes, other than material within the scope of subsection (j)(2) of
the Privacy Act, or are properly classified in accordance with 5 U.S.C.
552a(b)(1). Properly classified material in the System is additionally
exempt under this rule from subsections (e)(4)(G) through (I) (Agency
Requirements) and (f) (Agency Rules) of the Privacy Act.
Additionally, this rule exempts those portions of records in the
Personnel Security Records System (DOT/OST 035) that would reveal the
identity of a source who furnished information to the Government under
an express or, prior to September 27, 1975, an implied promise of
confidentiality, from the following subsections of the Privacy Act:
(c)(3) (Accounting of Certain Disclosures), (d) (Access to Records),
(e)(4)(G) through (I) (Agency Requirements), and (f) (Agency Rules). We
also correct an error by replacing an incorrect reference to the
identification number of this System, DOT/OST 016, with the correct
identification number of DOT/OST 035.
These exemptions were initially adopted as part of the
establishment of 49 CFR part 10, published at 40 FR 45729, effective
September 29, 1975, and amended by 40 FR 57361 on November 26, 1975.
Since that time, DOT has claimed these exemptions in its published
SORNs for both of these Systems. On January 30, 1980, DOT republished
the Appendix at 45 FR 8993, and summarized the changes as making minor
amendments reflecting organizational changes within DOT, adding three
limited exemptions for investigatory files, and changing procedures
relating to disclosure of medical records. Notwithstanding this
explanation, the republished Appendix omitted the exemptions. Despite
the absence of the exemptions in the Appendix, DOT has nevertheless
continued to refer to them. Since the 1980 error, we have heard no
complaints from the public on this matter. This rule conforms the
Appendix to Part 10 to, both to the applicable SORNs and current DOT
practice and thus will have no substantive impact on the public.
Therefore, DOT finds that there is good cause under 5 U.S.C. 553(d)(3)
to make this rule effective less than 30 days after publication in the
Federal Register.
The DOT also finds that notice and comment are unnecessary and that
the rule is exempt from prior notice and comment requirements under 5
U.S.C. 553(b)(3)(A). Notice and comment would be contrary to the public
interest because in the absence of these exemptions, DOT may be
required to provide an accounting of disclosures to the subject of an
investigation, thereby permitting the subject of the investigation to
take measures to impede the investigation, as by destroying evidence or
intimidating witnesses. Additionally, DOT would be required to disclose
the identity of informants who promised information under an express
promise of confidentiality. This would hamper DOT's ability to obtain
complete and accurate statements from witnesses and chill individuals
from providing DOT with information necessary for investigations. These
disclosures would not serve the public interest of ensuring that
investigations are as accurate as possible. Interested persons are
still welcome to comment, and DOT will respond to any comments received
on or before the closing of the comment period (see DATES).
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 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 does 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 are no costs associated
with this rule.
B. Regulatory Flexibility Act
Because no notice of proposed rulemaking is required for this rule
under the Administrative Procedure Act, 5 U.S.C. 553, the provisions of
the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) do
not apply. Even so, DOT has evaluated the effects of these changes on
small entities and does not believe that this rule would 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. Therefore, I
hereby certify that this proposal will not have a significant economic
impact on a substantial number of small entities.
C. National Environmental Policy Act
The agency 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 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
[[Page 59450]]
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 make a correction to the Appendix to DOT's Privacy Act regulations.
The agency does not anticipate any environmental impacts and there are
no extraordinary circumstances present in connection with this
rulemaking.
D. Executive Order 13132
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 dated August 4, 1999, and
it has been determined that it does 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.
E. Executive Order 13084
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 has no
effect on Indian Tribal Governments, the funding and consultation
requirements of Executive Order 13084 do not apply.
F. 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 does not contain a collection of information requirement
for the purposes of the PRA.
G. 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
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 amends part 10 of title 49,
Code of Federal Regulations, as follows:
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:
0
a. In Part I, adding paragraph D; and
0
b. In Part II, adding paragraphs B.3., D.4, and F.4. and revising
paragraph F.2.
The revisions and additions read as follows:
Appendix to Part 10--Exemptions
Part I. General Exemptions
* * * * *
D. General Investigations Record System, maintained by the
Office of Investigations and Security, Office of the Secretary (DOT/
OST 016).
* * * * *
Part II. Specific Exemptions
* * * * *
B. * * *
3. General Investigations Record System, maintained by the
Office of Investigations and Security, Office of the Secretary (DOT/
OST 016).
* * * * *
D. * * *
4. Personnel Security Records System, maintained by the Office
of Investigations and Security, Office of the Secretary (DOT/OST
035).
* * * * *
F. * * *
2. Personnel Security Records System, maintained by the Office
of Investigations and Security, Office of the Secretary (DOT/OST
035).
* * * * *
4. General Investigations Record System, maintained by the
Office of Investigations and Security, Office of the Secretary (DOT/
OST 016).
* * * * *
Issued in Washington, DC, on September 24th, 2014, under
authority delegated in 49 CFR 1.27(c).
Kathryn B. Thomson,
General Counsel.
[FR Doc. 2014-23470 Filed 10-1-14; 8:45 am]
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