Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 44223 

requirements of filing a reexamination 

before a filing date will be assigned to 

a reexamination. Interested persons are 

requested to send comments regarding 

these information collections, including 

suggestions for reducing this burden to: 

(1) The Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, New 

Executive Office Building, Room 10202, 

725 17th Street, NW., Washington, DC 

20503, Attention: Desk Officer for the 

Patent and Trademark Office; and (2) 

Robert J. Spar, Director, Office of Patent 

Legal Administration, Commissioner for 

Patents, P.O. Box 1450, Alexandria, 

Virginia 22313–1450. 

Notwithstanding any other provision 

of law, no person is required to respond 

to, nor shall a person be subject to a 

penalty for failure to comply with, a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act unless that collection of 

information displays a currently valid 

OMB control number. 

List of Subjects in 37 CFR Part 1 

Administrative practice and 

procedure, Courts, Freedom of 

information, Inventions and patents, 

Reporting and recordkeeping 

requirements, Small businesses, and 

Biologics. 

■ For the reasons set forth in the 

preamble, the interim rule amending 37 

CFR part 1 which was published at 71 

FR 9260–62 on February 23, 2006, is 

adopted as final with the following 

changes: 

PART 1—RULES OF PRACTICE IN 

PATENT CASES 

■ 1. The authority citation for 37 CFR 

part 1 continues to read as follows: 

Authority: 35 U.S.C. 2(b)(2), unless 

otherwise noted. 

■ 2. Section 1.11 is amended by revising 

paragraph (c) to read as follows: 

§ 1.11 Files open to the public. 

* * * * * 

(c) All requests for reexamination for 

which all the requirements of § 1.510 or 

§ 1.915 have been satisfied will be 

announced in the Official Gazette. Any 

reexaminations at the initiative of the 

Director pursuant to § 1.520 will also be 

announced in the Official Gazette. The 

announcement shall include at least the 

date of the request, if any, the 

reexamination request control number 

or the Director initiated order control 

number, patent number, title, class and 

subclass, name of the inventor, name of 

the patent owner of record, and the 

examining group to which the 

reexamination is assigned. 

* * * * * 

■ 3. Section 1.510 is amended by 

revising paragraphs (c) and (d) to read 

as follows: 

§ 1.510 Request for ex parte 

reexamination. 

* * * * * 

(c) If the request does not include the 

fee for requesting ex parte 

reexamination required by paragraph (a) 

of this section and meet all the 

requirements by paragraph (b) of this 

section, then the person identified as 

requesting reexamination will be so 

notified and will generally be given an 

opportunity to complete the request 

within a specified time. Failure to 

comply with the notice will result in the 

ex parte reexamination request not 

being granted a filing date, and will 

result in placement of the request in the 

patent file as a citation if it complies 

with the requirements of § 1.501. 

(d) The filing date of the request for 

ex parte reexamination is the date on 

which the request satisfies all the 

requirements of this section. 

* * * * * 

■ 4. Section 1.915 is amended by 

revising paragraph (d) to read as 

follows: 

§ 1.915 Content of request for inter partes 

reexamination. 

* * * * * 

(d) If the inter partes request does not 

include the fee for requesting inter 

partes reexamination required by 

paragraph (a) of this section and meet 

all the requirements of paragraph (b) of 

this section, then the person identified 

as requesting inter partes reexamination 

will be so notified and will generally be 

given an opportunity to complete the 

request within a specified time. Failure 

to comply with the notice will result in 

the inter partes reexamination request 

not being granted a filing date, and will 

result in placement of the request in the 

patent file as a citation if it complies 

with the requirements of § 1.501. 

Dated: July 31, 2006. 

Jon W. Dudas, 

Under Secretary of Commerce for Intellectual 

Property and Director of the United States 

Patent and Trademark Office. 

[FR Doc. E6–12600 Filed 8–3–06; 8:45 am] 

BILLING CODE 3510–16–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Transportation Security Administration 

49 CFR Part 1507 

[Docket No. TSA–2004–19845; Amendment 

No. 1507–2] 

RIN 1652–AA34 

Privacy Act of 1974: Implementation of 

Exemptions; Intelligence, 

Enforcement, Internal Investigation, 

and Background Investigation Records 

AGENCY: Transportation Security 

Administration, DHS. 

ACTION: Final rule. 

SUMMARY: The Transportation Security 

Administration is amending its 

regulations to exempt four systems of 

records from certain provisions of the 

Privacy Act. The systems intended for 

exemption are the Transportation 

Security Intelligence Service Operations 

Files, the Personnel Background 

Investigation File System, the 

Transportation Security Enforcement 

Record System, and the Internal 

Investigation Record. 

DATES: Effective September 5, 2006. 

FOR FURTHER INFORMATION CONTACT: Lisa 

S. Dean, Privacy Officer, Office of 

Transportation Security Policy, TSA–9, 

Transportation Security Administration, 

601 South 12th Street, Arlington, VA 

22202–4220; telephone (571) 227–3947; 

facsimile (571) 227–2555. 

SUPPLEMENTARY INFORMATION: 

Availability of Rulemaking Document 

You can get 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 TSA’s Security 

Regulations Web page at http:// 

www.tsa.gov and accessing the link for 

‘‘Research Center’’ at the top of the page. 

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 the Transportation 

Security Administration (TSA) to 

comply with small entity requests for 

information and advice about 


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44224 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

1Section 552a(k)(1) authorizes the application of 

exemption (b)(1) under the Freedom of Information 

Act (5 U.S.C. 552) protecting from disclosure 

‘‘matters that are specifically authorized under 

criteria established by an Executive Order to be kept 

secret in the interest of national defense or foreign 

policy’’ and that are properly classified under such 

Executive Order. 

2Section 552a(e)(3) requires the agency collecting 

information from an individual to inform the 

individual of the authority for the agency to collect 

the information, the purpose and intended routine 

uses of such information, and the potential effects 

on the individual if the information requested is not 

provided to the Government. 

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. 

I. Analysis of the Final Rule 

A. Background 

The Privacy Act of 1974 (Privacy Act), 

5 U.S.C. 552a, governs the means by 

which the U.S. Government collects, 

maintains, uses, and disseminates 

personally identifiable information. The 

Privacy Act applies to information that 

is maintained in a ‘‘system of records.’’

A ‘‘system of records’’ is a group of any 

records under the control of an agency 

from which information is retrieved by 

the name of the individual or by some 

identifying number, symbol, or other 

identifying particular assigned to the 

individual. See 5 U.S.C. 552a(a)(5). 

An individual may request access to 

records containing information about 

him or herself. 5 U.S.C. 552a(b), (d). 

However, the Privacy Act authorizes 

Government agencies to exempt systems 

of records from access by individuals 

under certain circumstances, such as 

where the access or disclosure of such 

information would impede national 

security or law enforcement efforts. For 

example, allowing the subject of an 

ongoing law enforcement investigation 

to access his or her investigative file 

could impede the investigation or allow 

the subject to avoid detection or 

apprehension. 

Exemptions from Privacy Act 

provisions must be established by 

regulation. 5 U.S.C. 552a(j), (k). TSA’s 

Privacy Act exemptions are found at 49 

CFR part 1507. 

B. Amendments to TSA’s Privacy Act 

Exemptions 

On December 10, 2004, TSA 

published a notice of proposed 

rulemaking in the Federal Register (69 

FR 71767) seeking to exempt four 

systems of records from certain 

provisions of the Privacy Act pursuant 

to 5 U.S.C. 552a(j) and (k). The four 

systems of records are: 

(1) The Transportation Security 

Intelligence Service (TSIS) Operations 

Files (DHS/TSA 011), under which TSA 

maintains records on intelligence, 

counterintelligence, transportation 

security, and information systems 

security matters as they relate to TSA’s 

mission of protecting the nation’s 

transportation systems; 

(2) The Personnel Background 

Investigation File System (PBIFS) (DHS/ 

TSA 004), under which TSA maintains 

investigative and background records 

used to make suitability and eligibility 

determinations for employment; 

(3) The Transportation Security 

Enforcement Record System (TSERS) 

(DHS/TSA 001), which serves as an 

enforcement docket system; and 

(4) The Internal Investigation Record 

System (IIRS) (DHS/TSA 005), under 

which TSA maintains records that 

facilitate the management of 

investigations into allegations or 

appearances of misconduct by current 

and former TSA employees or 

contractors and investigations of 

security-related incidents and reviews 

of TSA programs and operations. 

In the December 10, 2004 notice of 

proposed rulemaking, TSA proposed to 

add 5 U.S.C. 552a(k)(1) 1 as an authority 

to exempt the Personnel Background 

Investigation File System (DHS/TSA 

004) from the exemptions previously 

established for this system. See 49 CFR 

1507.3. TSA also proposed to add 5 

U.S.C. 552a(j)(2) (a general law 

enforcement exemption) as an authority 

to exempt the Transportation Security 

Enforcement Record System (DHS/TSA 

001) and the Internal Investigation 

Record System (DHS/TSA 005) from the 

provisions previously claimed for those 

two systems, and to now include an 

exemption for those two systems of 

records from subsection (e)(3) of the 

Privacy Act.2

This final rule adopts the proposed 

rule with only two technical changes 

from the proposed rule. First, TSA 

changed references to ‘‘security 

sensitive information’’ to read ‘‘sensitive 

security information.’’ Second, TSA 

revised § 1507.3(j)(1) (Accounting for 

Disclosures) to add text inadvertently 

omitted from the proposed rule related 

to the possibility that release of the 

accounting of disclosures could ‘‘reveal 

investigative interest on the part of the 

Transportation Security Administration, 

as well as the recipient.’’ The proposed 

rule stated that release of the accounting 

of disclosures could ‘‘alert the subject of 

intelligence gathering operations on the 

part of the Transportation Security 

Administration as well as the 

recipient.’’ This implied that TSA 

engages in intelligence gathering 

operations, which is not the case. TSA 

is a recipient of intelligence information 

and engages in analysis and 

dissemination of that information. The 

addition of the language described 

above corrects this incorrect implication 

and is consistent with the language used 

in the justification for exemption in 

§ 1507.3(j)(2) (Access to Records). 

C. Response to Public Comments 

TSA received two letters commenting 

on the proposed rule and one comment 

encouraging TSA to establish redress 

procedures whereby air carrier 

customers can report and correct any 

inaccurate information they believe TSA 

possesses. TSA received consolidated 

comments on the proposed rule from 

the Electronic Frontier Foundation, 

PrivacyActivism, Privacy Rights 

Clearinghouse, the Fairfax County 

Privacy Council, and the World Privacy 

Forum (collectively, Privacy Groups). 

TSA also received comments from the 

Owner-Operator Independent Drivers 

Association, Inc. (OOIDA). A number of 

the comments from the Privacy Groups 

relate to the scope and routine uses for 

the Transportation Security 

Enforcement Record System (TSERS) 

(DHS/TSA 001) and the Transportation 

Security Intelligence Service (TSIS) 

Operations Files (DHS/TSA 011). The 

remaining comments relate to the 

exemptions claimed for these systems, 

which TSA has addressed below. 

As a preliminary matter and an 

overall response to the comments, TSA 

recognizes that although there is a need 

for the exemptions provided for in this 

document, there may be instances 

where such exemptions can be waived. 

There may be times when application of 

the Privacy Act exemptions claimed 

here are not necessary to further a 

governmental interest. In appropriate 

circumstances, where compliance 

would not appear to interfere with, or 

adversely affect, the law enforcement 

purposes of this system and the overall 

law enforcement process, the applicable 

exemptions may be waived. 

1. Applicability of TSERS and TSIS 

OOIDA requests clarification as to 

whether TSERS (DHS/TSA 001) and 

TSIS (DHS/TSA 011) apply to records 

TSA maintains in conjunction with 

conducting threat assessments of 

commercial truck drivers applying for 

hazardous materials (hazmat) 

endorsements. OOIDA expresses 

concern that the exemptions and routine 


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uses applicable to these two records 

systems are inconsistent with certain 

protections for hazmat drivers 

envisioned by the regulation governing 

threat assessments for those drivers. 

TSA notes that records relating to 

threat assessments for hazmat drivers 

are contained within the Transportation 

Security Threat Assessment System (T–

STAS) DHS/TSA 002, and are not 

automatically included in TSERS or 

TSIS. A driver’s records may become a 

part of TSERS, only if the driver is 

involved in a violation or potential 

violation of law. 

2. Exemption From Requirement To 

Give an Accounting for Disclosures 

The Privacy Groups object to TSA’s 

proposal to exempt TSERS (DHS/TSA 

001) and TSIS (DHS/TSA 011) from the 

requirement in 5 U.S.C. 552a(c)(3) to 

furnish individuals with an accounting 

for disclosures of records. They state 

that this exemption is not necessary 

because disclosures for civil and 

criminal law enforcement activity 

already are exempt from the disclosure 

requirements in 5 U.S.C. 552a(c)(3). See 

5 U.S.C. 552a(c)(3) and (b)(7). 

TSA notes that disclosures pursuant 

to subsection (b)(7) of the Privacy Act 

are not the only disclosures TSA may 

need to make from these systems. TSA 

may need to make a disclosure, for 

instance, when the agency merely 

suspects a violation of law. Accounting 

of such a disclosure would not be 

exempted under 5 U.S.C. 552a(c)(3) and 

(b)(7), because that limited exemption 

applies only where the disclosure 

results from a written request from any 

agency head specifying the particular 

portion of the record desired. The 

current routine uses applicable to the 

TSERS and TSIS systems of records 

permit disclosure of information in 

those systems to Federal, State, local, 

tribal, territorial, foreign or international 

agencies responsible for investigating, 

prosecuting, enforcing, or implementing 

a statute, rule, regulation, or order, 

where TSA becomes aware of an 

indication of a violation or potential 

violation of civil or criminal law or 

regulation. Any requirement to disclose 

the accounting of disclosures compiled 

under the requirements of 5 U.S.C. 

552(a)(c)(3) may interfere with a law 

enforcement investigation, particularly 

if the subject of the investigation is 

unaware of the investigation. 

Consequently, TSA must assert an 

exemption from the accounting 

requirements of 5 U.S.C. 552a(c)(3) 

generally. 

TSA notes that the ability to use a 

routine use for certain disclosures was 

intended as an addition to the type of 

disclosures for civil or criminal law 

enforcement activity under 5 U.S.C. 

552a(b)(7). See Office of Management 

and Budget Guidance, 40 FR 28955 (July 

9, 1975). Dependence on the disclosure 

authority in subsection (b)(7) for all 

investigations, therefore, is not 

appropriate, and must be supplemented 

by routine uses. For this reason, TSA 

also is claiming an exemption from 5 

U.S.C. 552a(c)(3), generally, to cover 

access to the accounting of the 

disclosures made pursuant to these 

routine uses. 

As explained in this document, TSA 

is exempting the two systems of records, 

TSERS (DHS/TSA 001) and TSIS (DHS/ 

TSA 011), from the accounting for 

disclosures in order to protect the 

integrity of investigations. Notifying 

individuals of an investigation alerts 

those individuals who are subject to the 

investigation, and could help them 

evade investigation and compromise 

security. Both of the systems of records 

at issue are essential to TSA’s 

transportation security mission. 

TSA notes that with respect to TSERS 

(DHS/TSA 001), this rulemaking only 

adds 5 U.S.C. 552a(j)(2) as an authority 

for exemptions, and that TSA 

previously published a final rule on 

June 25, 2004 (69 FR 35536), exempting 

the TSERS (DHS/TSA 001) system from 

the accounting, access, and relevance/ 

necessity requirements. TSERS is a 

system intended to cover civil and 

criminal enforcement and inspection 

records, and records related to 

investigations or prosecution of 

violations or potential violations of law. 

TSERS records are also used to record 

details of security-related activity, such 

as passenger or baggage screening, and 

include suspicious activity reports. TSIS 

is a system intended to cover records on 

intelligence, counterintelligence, 

transportation security, and information 

security matters as they relate to TSA’s 

mission of protecting the nation’s 

transportation systems. TSIS records 

also are used to identify potential 

threats to transportation security, 

uphold and enforce the law, and ensure 

public safety. Both TSERS and TSIS 

contain records that are investigatory in 

nature. If TSA is investigating a security 

incident, or the security activities of a 

regulated entity, it is imperative that the 

individuals involved not be given the 

opportunity to evade detection and 

resulting enforcement action. Providing 

this knowledge to such individuals 

defeats the investigation. 

Commenters suggest that an 

exemption from the requirement to 

provide individuals access to the 

accounting of disclosures would prevent 

an individual wrongly denied a job, 

contract, or license from learning to 

whom incorrect information had been 

disclosed, and from attempting to 

correct any error. 

However, because the focus of the 

TSERS and TSIS systems is to support 

transportation security and the use of 

appropriate investigatory authority, TSA 

must be able to notify transportation 

employers about their employees that 

violate TSA regulations or are 

determined to pose a threat to 

transportation, particularly if the 

investigation requires the cooperation of 

the employer. Where an employer takes 

action against an individual, it is 

expected that the employer will likely 

notify the individual of the basis of the 

action, including the fact of a disclosure 

from TSA. So, for example, if an air 

carrier employee is caught with a 

firearm at a screening checkpoint, TSA 

will report that incident to the air 

carrier for its consideration in 

connection with revoking the 

employee’s security credentials. The air 

carrier will likely notify the individual 

of the basis of the revocation. The 

individual can contest the Notice of 

Violation from TSA, or can seek redress 

under the procedures outlined in the 

applicable Privacy Impact Assessment. 

If, on the other hand, TSA is 

investigating an air carrier employee for 

on-going access door violations, TSA 

might notify the employer of the 

investigation, but ask that the employer 

not notify the employee of the 

disclosure in order to preserve the 

investigation. In developing these 

systems, TSA has attempted to strike a 

balance between the agency’s mission to 

protect the nation against threats to 

transportation, and the privacy and civil 

liberties of the public. 

3. Exemption From Requirement To 

Collect Only Relevant and Necessary 

Information 

The Privacy Groups also object to 

TSA’s assertion of exemption authority 

under 5 U.S.C. 552a(e)(1), which 

permits the maintenance of information 

beyond that which is ‘‘relevant and 

necessary’’ to accomplish the agency’s 

purpose. The Privacy Groups state that 

the assertion of this exemption would 

lead to the wide dissemination of 

irrelevant and inaccurate information. 

While the commenters focus on the 

relevance requirement, they fail to 

address the necessity component of the 

statute. The necessity of maintaining a 

particular piece of information often is 

difficult to determine in the context of 

an investigation, particularly in its 

nascent stages. TSA will, of course, 

collect information that it deems 

relevant to the investigation as 


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collection of irrelevant information 

wastes scarce resources, is inefficient, 

and uses database space 

inappropriately. It is, however, not 

always possible to determine the 

relevance and necessity (emphasis 

added) of specific information early in 

the investigative process. TSA should 

not be required to discard relevant 

information as unnecessary when such 

information may very well turn out to 

be necessary later in an investigation. 

To ensure that no key pieces of 

information are lost, and in the interest 

of protecting the integrity of 

investigations, TSA is claiming an 

exemption from the relevancy and 

necessity requirements. TSERS and 

TSIS are both systems crucial to the 

TSA’s transportation security mission. 

Without this exemption, TSA’s ability to 

conduct thorough investigations, and 

ultimately its ability to protect 

transportation security, is jeopardized. 

As to the allegation that inaccurate and 

irrelevant information will be ‘‘widely’’

disseminated, TSA disseminates 

information only as appropriate and 

authorized under the Privacy Act. 

4. Exemption From Notice 

Requirements 

Finally, the Privacy Groups object to 

TSA’s proposed exemption of TSERS 

(DHS/TSA 001) from the requirement of 

5 U.S.C. 552a(e)(3), which requires that, 

prior to requiring an individual to 

submit information to an agency, the 

agency provide notice of the authority 

under which information is collected, 

the purpose for which it is intended to 

be used, routine uses which may be 

made; and the consequences to the 

individual for refusing to provide the 

information. TSA claims this exemption 

in order to safeguard the integrity of 

investigations. Early notice to all 

individuals of the authority, voluntary 

nature, purpose, and routine uses of the 

information collected would impair 

investigations into transportation 

security. It would reveal TSA’s 

investigative interest in the individual, 

as well as the nature of the 

investigation, thereby providing the 

individual an opportunity to interfere 

with the investigation or evade 

detection or suspicion. 

Also, the Privacy Groups state that 

this exemption should not apply to 

information that individuals provide to 

TSA for purposes of passenger 

screening. With respect to the Privacy 

Groups’ concerns regarding passenger 

reservations data, such information will 

be part of a separate system of records 

to be published in connection with the 

Secure Flight Program. The TSERS 

(DHS/TSA 001) system does not cover 

the records TSA will maintain for the 

operation of the Secure Flight Program. 

The Air Transport Association of 

America, Inc, has no comments on the 

proposed rule, but encourages TSA to 

establish redress procedures whereby 

air carrier customers can report and 

correct any inaccurate information they 

believe TSA possesses. TSA has 

established an Office of Transportation 

Security Redress that will be the 

public’s point of contact for this 

purpose. TSA also will publish a system 

of records notice for the Secure Flight 

program that will be the primary system 

affecting passengers. 

II. Regulatory Requirements 

A. Regulatory Impact Analyses 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866, Regulatory 

Planning and Review (58 FR 51735, 

October 4, 1993), directs each Federal 

agency to propose or adopt a regulation 

only upon a reasoned determination 

that the benefits of the intended 

regulation justify its costs. Second, the 

Regulatory Flexibility Act of 1980 (5 

U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996) requires 

agencies to analyze the economic 

impact of regulatory changes on small 

entities. Third, the Trade Agreements 

Act (19 U.S.C. 2531–2533) prohibits 

agencies from setting standards that 

create unnecessary obstacles to the 

foreign commerce of the United States. 

Fourth, the Unfunded Mandates Reform 

Act of 1995 (2 U.S.C. 1531–1538) 

requires agencies to prepare a written 

assessment of the costs, benefits, and 

other effects of proposed or final rules 

that include a Federal mandate likely to 

result in the expenditure by State, local, 

or tribal governments, in the aggregate, 

or by the private sector, of $100 million 

or more annually (adjusted for 

inflation). 

In conducting these analyses, TSA has 

determined: 

1. Executive Order 12866 Assessment 

This rule is a significant regulatory 

action under section 3(f) of Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ 58 FR 51735 (Oct. 4, 1993) (as 

amended). Accordingly, this rule has 

been reviewed by the Office of 

Management and Budget (OMB). 

Distilled to its essence, this rulemaking 

exempts TSA from providing a privacy 

act notice in the context of criminal 

investigations, permits TSA to withhold 

classified documents from employees 

seeking their background investigation, 

and exempts TSA intelligence records 

from access, accounting, and relevance/ 

necessity requirements as outlined 

elsewhere in this rulemaking. TSA’s 

ability to perform law enforcement and 

intelligence functions connected to 

transportation security are significantly 

degraded without these exemptions. 

2. Regulatory Flexibility Act Assessment 

The Regulatory Flexibility Act (RFA), 

5 U.S.C. 605(b), as amended by the 

Small Business Regulatory Enforcement 

and Fairness Act of 1996 (SBREFA), 

requires an agency to prepare and make 

available to the public a regulatory 

flexibility analysis that describes the 

effect of the rule on small entities (i.e., 

small businesses, small organizations, 

and small governmental jurisdictions). 

Section 605 of the RFA allows an 

agency, in lieu of preparing an analysis, 

to certify that a rule is not expected to 

have a significant economic impact on 

a substantial number of small entities. 

Accordingly, TSA certifies that this final 

rule will not have a significant impact 

on a substantial number of small 

entities. The final rule imposes no 

duties or obligations on small entities. 

This rule provides exemptions to 

existing procedures and adds no new 

regulated parties. Further, the 

exemptions to the Privacy Act apply to 

individuals, and individuals are not 

covered entities under the RFA. 

3. International Trade Impact 

Assessment 

This rulemaking will not constitute a 

barrier to international trade. The 

exemptions relate to criminal 

investigations and agency 

documentation and, therefore, do not 

create any new costs or barriers to trade. 

4. Unfunded Mandates Assessment 

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 rulemaking will not 

impose an unfunded mandate on state, 

local, or tribal governments, or on the 

private sector. This rule will provide 

exemptions rather than new 

requirements. The exemptions relate to 


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criminal investigations of individuals 

and agency documentation and, 

therefore, do not create any new 

requirements for state, local, or tribal 

governments, or on the private sector. 

B. 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. 

C. Executive Order 13132, Federalism 

TSA has analyzed this rule under the 

principles and criteria of Executive 

Order 13132, Federalism. 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. 

D. 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. 

E. Energy Impact 

The energy impact of this action has 

been assessed in accordance with the 

Energy Policy and Conservation Act 

(EPCA) Public Law 94–163, as amended 

(42 U.S.C. 6362). This rulemaking is not 

a major regulatory action under the 

provisions of the EPCA. 

List of Subjects in 49 CFR Part 1507 

Privacy. 

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 ACTEXEMPTIONS 

■ 1. The authority citation for part 1507 

continues to read as follows: 

Authority: 49 U.S.C. 114(l)(1), 40113, 5 

U.S.C. 552a(j) and (k). 

■ 2. Amend § 1507.3 by revising 

paragraphs (a), (c), and (d), and by 

adding a new paragraph (j) to read as 

follows: 

§ 1507.3 Exemptions. 

* * * * * 

(a) Transportation Security 

Enforcement Record System (DHS/TSA 

001). The Transportation Security 

Enforcement Record System (TSERS) 

(DHS/TSA 001) enables TSA to 

maintain a system of records related to 

the screening of passengers and 

property and they may be used to 

identify, review, analyze, investigate, 

and prosecute violations or potential 

violations of criminal statutes and 

transportation security laws. Pursuant to 

exemptions (j)(2), (k)(1), and (k)(2) of the 

Privacy Act, DHS/TSA 001 is exempt 

from 5 U.S.C. 552a(c)(3), (d), (e)(1), 

(e)(3), (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 an 

investigation of an actual or potential 

criminal, civil, or regulatory violation to 

the existence of the investigation and 

reveal investigative interest on the part 

of TSA, as well as the 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 investigation and avoid 

detection or apprehension, which 

undermines the entire system. 

(2) From subsection (d) (Access to 

Records) because access to the records 

contained in this system of records 

could inform the subject of an 

investigation of an actual or potential 

criminal, civil, or regulatory violation to 

the existence of the investigation and 

reveal investigative interest on the part 

of TSA, as well as the recipient agency. 

Access to the records would permit the 

individual who is the subject of a record 

to impede the investigation and avoid 

detection or apprehension. Amendment 

of the records would interfere with 

ongoing investigations and law 

enforcement activities, and impose an 

impossible administrative burden by 

requiring investigations to be 

continuously reinvestigated. The 

information contained in the system 

may also include properly 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, which 

could be detrimental to transportation 

security. 

(3) From subsection (e)(1) (Relevancy 

and Necessity of Information) because 

in the course of investigations into 

potential violations of transportation 

security laws, the accuracy of 

information obtained or introduced 

occasionally may be unclear or the 

information may not be strictly relevant 

or necessary to a specific investigation. 

In the interests of effective enforcement 

of transportation security laws, it is 

appropriate to retain all information that 

may aid in establishing patterns of 

unlawful activity. 

(4) From subsection (e)(3) (Privacy 

Act Statement) because disclosing the 

authority, purpose, routine uses, and 

potential consequences of not providing 

information could reveal the 

investigative interests of TSA, as well as 

the nature and scope of an investigation, 

the disclosure of which could enable 

individuals to circumvent agency 

regulations or statutes. 

(5) From subsections (e)(4)(G), (H), 

and (I) (Agency Requirements), and (f) 

(Agency Rules), because this system is 

exempt from the access provisions of 

subsection (d). 

* * * * * 

(c) Personnel Background 

Investigation File System (DHS/TSA 

004). The Personnel Background 

Investigation File System (PBIFS) (DHS/ 

TSA 004) enables TSA to maintain 

investigative and background material 

used to make suitability and eligibility 

determinations regarding current and 

former TSA employees, applicants for 

TSA employment, and TSA contract 

employees. Pursuant to exemptions 

(k)(1) and (k)(5) of the Privacy Act, the 

Personnel Background Investigation File 

System is exempt from 5 U.S.C. 

552a(c)(3) (Accounting of Disclosures) 

and (d) (Access to Records). Exemptions 

from the particular subsections are 

justified because this system contains 

investigatory material compiled solely 

for determining suitability, eligibility, 

and qualifications for Federal civilian 

employment. To the extent that the 

disclosure of material would reveal any 

classified material or the identity of a 

source who furnished information to the 

Government under an express promise 

that the identity of the source would be 

held in confidence, or, prior to 

September 27, 1975, under an implied 

promise that the identity of the source 

would be held in confidence, the 

applicability of exemption (k)(5) will be 

required to honor promises of 


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44228 Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Rules and Regulations 

confidentiality should the data subject 

request access to or amendment of the 

record, or access to the accounting of 

disclosures of the record. Exemption 

(k)(1) will be required to protect any 

classified information that may be in 

this system. 

(d) Internal Investigation Record 

System (DHS/TSA 005). The Internal 

Investigation Record System (IIRS) 

(DHS/TSA 005) contains records of 

internal investigations for all modes of 

transportation for which TSA has 

security-related duties. This system 

covers information regarding 

investigations of allegations or 

appearances of misconduct of current or 

former TSA employees or contractors 

and provides support for any adverse 

action that may occur as a result of the 

findings of the investigation. It is being 

modified to cover investigations of 

security-related incidents and reviews 

of TSA programs and operations. 

Pursuant to exemptions (j)(2), (k)(1), and 

(k)(2) of the Privacy Act, DHS/TSA 005 

is exempt from 5 U.S.C. 552a(c)(3), (d), 

(e)(1), (e)(3), (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 reveal investigative interest on the 

part of the recipient agency that 

obtained the record pursuant to a 

routine use. Disclosure of the 

accounting could, therefore, present a 

serious impediment to law enforcement 

efforts on the part of the recipient 

agency, as the individual who is the 

subject of a record would learn of thirdagency investigative interests and 

thereby avoid detection or 

apprehension, as well as to TSA 

investigative efforts. 

(2) From subsection (d) (Access to 

Records) because access to the records 

contained in this system could reveal 

investigative techniques and procedures 

of the investigators, as well as the nature 

and scope of the investigation, the 

disclosure of which could enable 

individuals to circumvent agency 

regulations or statutes. The information 

contained in the system might include 

properly 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 records could reveal 

sensitive security information protected 

pursuant to 49 U.S.C. 114(s), the 

disclosure of which could be 

detrimental to the security of 

transportation. 

(3) From subsection (e)(1) (Relevancy 

and Necessity of Information) because 

third agency records obtained or made 

available to TSA during the course of an 

investigation may occasionally contain 

information that is not strictly relevant 

or necessary to a specific investigation. 

In the interests of administering an 

effective and comprehensive 

investigation program, it is appropriate 

and necessary for TSA to retain all such 

information that may aid in that 

process. 

(4) From subsection (e)(3) (Privacy 

Act Statement) because disclosing the 

authority, purpose, routine uses, and 

potential consequences of not providing 

information could reveal the targets of 

interests of the investigating office, as 

well as the nature and scope of an 

investigation, the disclosure of which 

could enable individuals to circumvent 

agency regulations or statutes. 

(5) From subsections (e)(4)(G), (H) and 

(I) (Agency Requirements), and (f) 

(Agency Rules), because this system is 

exempt from the access provisions of 

subsection (d). 

* * * * * 

(j) Transportation Security 

Intelligence Service (TSIS) Operations 

Files. Transportation Security 

Intelligence Service Operations Files 

(TSIS) (DHS/TSA 011) enables TSA to 

maintain a system of records related to 

intelligence gathering activities used to 

identify, review, analyze, investigate, 

and prevent violations or potential 

violations of transportation security 

laws. This system also contains records 

relating to determinations about 

individuals’ qualifications, eligibility, or 

suitability for access to classified 

information. Pursuant to exemptions 

(j)(2), (k)(1), (k)(2), and (k)(5) of the 

Privacy Act, DHS/TSA 011 is exempt 

from 5 U.S.C. 552a(c)(3), (d), (e)(1), 

(e)(4)(G), (H), and (I), and (f). 

Exemptions from 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 intelligence 

gather operations and reveal 

investigative interest on the part of the 

Transportation Security Administration, 

as well as the 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 operations and avoid 

detection and apprehension, which 

undermined the entire system. 

Disclosure of the accounting may also 

reveal the existence of information that 

is classified or sensitive security 

information, the release of which would 

be detrimental to the security of 

transportation. 

(2) From subsection (d) (Access to 

Records) because access to the records 

contained in this system of records 

could inform the subject of intelligence 

gathering operations and reveal 

investigative interest on the part of the 

Transportation Security Administration. 

Access to the records would permit the 

individual who is the subject of a record 

to impede operations and possibly avoid 

detection or apprehension. Amendment 

of the records would interfere with 

ongoing intelligence and law 

enforcement activities and impose an 

impossible administrative burden by 

requiring investigations to be 

continually reinvestigated. The 

information contained in the system 

may also include properly 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, which 

could be detrimental to transportation 

security if released. This system may 

also include information necessary to 

make a determination as to an 

individual’s qualifications, eligibility, or 

suitability for access to classified 

information, the release of which would 

reveal the identity of a source who 

received an express or implied 

assurance that their identity would not 

be revealed to the subject of the record. 

(3) From subsection (e)(1) (Relevancy 

and Necessity of Information) because 

in the course of gathering and analyzing 

information about potential threats to 

transportation security, the accuracy of 

information obtained or introduced 

occasionally may be unclear or the 

information may not be strictly relevant 

or necessary to a specific operation. In 

the interests of transportation security, 

it is appropriate to retain all information 

that may aid in identifying threats to 

transportation security and establishing 

other patterns of unlawful activity. 

(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 July 28, 

2006. 

Kip Hawley, 

Assistant Secretary. 

[FR Doc. 06–6670 Filed 8–3–06; 8:45 am] 

BILLING CODE 9110–05–P 


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