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[Federal Register Volume 79, Number 191 (Thursday, October 2, 2014)]
[Rules and Regulations]
[Pages 59448-59450]
From the Federal Register Online via the Government Printing 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 claire.barrett@dot.gov 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]
BILLING CODE 4910-9X-P
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