Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 72199 

frivolous, insubstantial, or outside the 

scope of the rule will not be considered 

significant or adverse under this 

procedure. A comment recommending a 

regulation change in addition to those in 

the rule would not be considered a 

significant adverse comment unless the 

comment states why the rule would be 

ineffective without the additional 

change. In addition, if a significant 

adverse comment applies to an 

amendment, paragraph, or section of 

this rule and that provision can be 

severed from the remainder of the rule, 

we may adopt as final those provisions 

of the rule that are not the subjects of 

a significant adverse comment. 

If any significant adverse comments 

are received during the comment 

period, FDA will publish, before the 

effective date of this direct final rule, a 

document withdrawing the direct final 

rule. If we withdraw the direct final 

rule, any comments received will be 

applied to the proposed rule and will be 

considered in developing a final rule 

using the usual notice-and-comment 

procedures. 

If FDA receives no significant adverse 

comments during the specified 

comment period, FDA intends to 

publish a document, before the effective 

date of the direct final rule, confirming 

the effective date. 

IV. Analysis of Impacts 

A. Review Under Executive Order 

12866, the Regulatory Flexibility Act, 

and the Unfunded Mandates Act of 

1995 

FDA has examined the impacts of the 

direct final rule under Executive Order 

12866 and the Regulatory Flexibility Act 

(5 U.S.C. 601–612), and the Unfunded 

Mandates Reform Act of 1995 (Public 

Law 104–4). Executive Order 12866 

directs agencies to assess all costs and 

benefits of available regulatory 

alternatives and, when regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety, 

and other advantages; distributive 

impacts; and equity). The agency 

believes that this direct final rule is not 

a significant regulatory action under the 

Executive order. 

The Regulatory Flexibility Act 

requires agencies to analyze regulatory 

options that would minimize any 

significant impact of a rule on small 

entities. Because the direct final rule is 

removing a regulation, it would not 

result in any increased burden or costs 

on small entities. Therefore, the agency 

certifies that the direct final rule will 

not have a significant economic impact 

on a substantial number of small 

entities. 

Section 202(a) of the Unfunded 

Mandates Reform Act of 1995 requires 

that agencies prepare a written 

statement, which includes an 

assessment of anticipated costs and 

benefits, before proposing ‘‘any rule that 

includes any Federal mandate that may 

result in the expenditure by State, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $100,000,000 

or more (adjusted annually for inflation) 

in any one year.’’ The current threshold 

after adjustment for inflation is $115 

million, using the most current (2003) 

Implicit Price Deflator for the Gross 

Domestic Product. FDA does not expect 

this direct final rule to result in any 1- 

year expenditure that would meet or 

exceed this amount. 

B. Environmental Impact 

The agency has determined, under 21 

CFR 25.31(h), that this action is of a 

type that does not individually or 

cumulatively have a significant effect on 

the human environment. Therefore, 

neither an environmental assessment 

nor an environmental impact statement 

is required. 

C. Federalism 

FDA has analyzed this direct final 

rule in accordance with the principles 

set forth in Executive Order 13132. FDA 

has determined that the direct final rule 

does not contain policies that have 

substantial direct effects 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. Accordingly, the 

agency has concluded that the direct 

final rule does not contain policies that 

have federalism implications as defined 

in the Executive order and, 

consequently, a federalism summary 

impact statement is not required. 

V. Paperwork Reduction Act of 1995 

This direct final rule contains no 

collections of information. Therefore, 

clearance by the Office of Management 

and Budget under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501–

3520) is not required. 

VI. Request for Comments 

Interested persons may submit to the 

Division of Dockets Management (see 

ADDRESSES) written or electronic 

comments regarding this document. 

Submit a single copy of electronic 

comments or two paper copies of any 

mailed comments, except that 

individuals may submit one paper copy. 

Comments are to be identified with the 

docket number found in brackets in the 

heading of this document. Received 

comments may be seen in the Division 

of Dockets Management between 9 a.m. 

and 4 p.m., Monday through Friday. 

VII. References 

The following references have been 

placed on display in the Division of 

Dockets Management (see ADDRESSES), 

and may be seen by interested persons 

between 9 a.m. and 4 p.m., Monday 

through Friday. 

1. Massell, B.F., L.H. Honikman, and J. 

Amezcua, ‘‘Rheumatic Fever Following 

Streptococcal Vaccination. Report of Three 

Cases,’’ Journal of the American Medical 

Association, 207(6): 1115–1119, 1969. 

2. Kaplan, M.H. and M. Meyeserian, ‘‘An 

Immunological Cross-Reaction Between 

Group A Streptococcal Cells and Human 

Heart Tissue,’’ Lancet, 1:706–710, 1962. 

3. Fox, E.N., L.M. Pachman, M.K. Wittner, 

and A. Dorfman, ‘‘Primary Immunization of 

Infants and Children with Group A 

Streptococcal M Protein,’’ Journal of 

Infectious Diseases, 120:598–604, 1969. 

List of Subjects in 21 CFR Part 610 

Biologics, Labeling, Reporting and 

recordkeeping requirements. 

■ Therefore, under the Federal Food, 

Drug, and Cosmetic Act and the Public 

Health Service Act, and under authority 

delegated by the Commissioner of Food 

and Drugs, 21 CFR part 610 is amended 

as follows: 

PART 610—GENERAL BIOLOGICAL 

PRODUCTS STANDARDS 

■ 1. The authority citation for 21 CFR 

part 610 continues to read as follows: 

Authority: 21 U.S.C. 321, 331, 351, 352, 

353, 355, 360, 360c, 360d, 360h, 360i, 371, 

372, 374, 381; 42 U.S.C. 216, 262, 263, 263a, 

264. 

§ 610.19 [Removed] 

■ 2. Remove § 610.19. 

Dated: November 21, 2005. 

Jeffrey Shuren, 

Assistant Commissioner for Policy. 

[FR Doc. 05–23546 Filed 12–1–05; 8:45 am] 

BILLING CODE 4160–01–S 

DEPARTMENT OF JUSTICE 

Federal Bureau of Investigation 

28 CFR Part 16 

[AAG/A Order No. 010–2005] 

Privacy Act of 1974; Implementation 

AGENCY: Federal Bureau of 

Investigation, DOJ. 

ACTION: Final rule. 

72200 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 

1 70 FR 43715 (July 28, 2005). 

2Homeland Security Presidential Directive/ 

HSPD–6 (Sept. 16, 2003). 

3 5 U.S.C. 552a(j), (k). 

4 5 U.S.C. 552a(c)(3)–(4); (d)(1)–(4); (e)(1)–(3), (5), 

(8); (g). 5 5 U.S.C. 552a(d). 

6 5 U.S.C. 552a(c)(3). 7 40 FR 28971 (July 9, 1975). 

SUMMARY: The Department of Justice 

(DOJ), Federal Bureau of Investigation 

(FBI), is issuing a final rule exempting 

a new system of records entitled the 

Terrorist Screening Records System 

(TSRS) (JUSTICE/FBI–019) from 

subsections (c)(3) and (4); (d)(1), (2), (3), 

and (4); (e)(1), (2), (3), (5), and (8); and 

(g) of the Privacy Act, pursuant to 5 

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

published a system of records notice for 

JUSTICE/FBI–019 and a proposed rule 

implementing these exemptions on July 

28, 2005, at 70 FR 43661 and 43715. The 

listed exemptions are necessary to avoid 

interference with the law enforcement, 

intelligence, and counterterrorism 

functions and responsibilities of the FBI 

and the Terrorist Screening Center 

(TSC). This document addresses public 

comments on both the proposed rule 

and the system of records notice. 

DATES: This final rule is effective 

January 3, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Mary E. Cahill, (202) 307–1823. 

SUPPLEMENTARY INFORMATION: 

Background 

On July 28, 2005, the FBI published 

notice of a new Privacy Act system of 

records entitled ‘‘Terrorist Screening 

Records System, JUSTICE/FBI–019,’’

which became effective on September 6, 

2005.1 The Terrorist Screening Records 

System (TSRS) supports the mission of 

the FBI-administered Terrorist 

Screening Center (TSC) to consolidate 

the Government’s approach to terrorism 

screening. Under Homeland Security 

Presidential Directive/HSPD–6, the TSC 

maintains the Government’s 

consolidated watch list of known and 

suspected terrorists in the Terrorist 

Screening Database (TSDB). As required 

by HSPD–6, the TSDB contains 

‘‘information about individuals known 

or appropriately suspected to be or have 

been engaged in conduct constituting, in 

preparation for, in aid of, or related to 

terrorism.’’ 2 The TSDB is a sensitivebut-unclassified database containing 

only identifying information about 

known or suspected terrorists. 

Information from the TSDB is used to 

screen for terrorists in a variety of 

contexts, including during law 

enforcement encounters, the 

adjudication of applications for U.S. 

visas or other immigration and 

citizenship programs, at U.S. land 

borders and ports of entry, and for civil 

aviation security purposes. The TSDB is 

included in the new TSRS. 

In conjunction with publication of the 

TSRS system of records notice, the FBI 

initiated a rulemaking to exempt the 

TSRS from a number of provisions of 

the Privacy Act, pursuant to its 

authority in Privacy Act subsections 

552a(j) and (k).3 On July 28, 2005, the 

FBI published at 70 FR 43661 a 

proposed rule exempting records in the 

TSRS from Privacy Act subsections 

(c)(3) and (4); (d)(1), (2), (3), and (4); 

(e)(1), (2), (3), (5), and (8); and (g).4

Public Comments 

The FBI received comments on the 

proposed rule and the TSRS system of 

records notice from the Electronic 

Privacy Information Center (EPIC) and 

joint comments from the Electronic 

Frontier Foundation and Privacy 

Activism (EFF/PA). A discussion of 

these comments and the FBI’s responses 

are set forth below. With respect to the 

public comments on the routine uses for 

the TSRS that were published in the 

July 28, 2005, notice, the FBI has 

determined that none of the comments 

merited changes to routine uses prior to 

their implementation. 

A. Exemption From Subsections (c) and 

(d) (Accounting, Access, and 

Amendment) 

EPIC objected to the FBI’s proposal to 

exempt the TSRS from subsection (d) of 

the Privacy Act, which generally 

requires an agency to permit individuals 

access to records pertaining to them and 

the ability to request correction of any 

portion they believe is not accurate, 

relevant, timely, or complete.5 EPIC 

stated that exemption of the TSRS from 

subsection (d) is in conflict with the 

purposes of the Privacy Act. EPIC stated 

that the FBI’s notice of proposed 

rulemaking does not explain how the 

application of standard Privacy Act 

procedures permitting access to records 

would seriously damage the purpose of 

the TSRS. 

EFF/PA objected to the FBI’s 

application of any of the exemptions to 

information about individuals who have 

been misidentified as known or 

suspected terrorists. EFF/PA stated that, 

for instance, there is no basis to exempt 

information about misidentified persons 

from subsection (c)(3) of the Privacy 

Act, which permits individuals to 

obtain an accounting of any disclosures 

of records containing information about 

them.6

The exemption of the TSRS from the 

access provisions of subsection (d) is 

fully consistent with the language and 

intent of the Privacy Act. Allowing the 

subject of a TSRS record to obtain 

access to the record could, among other 

things, reveal the Government’s 

investigative interest in a known or 

suspected terrorist, leading to the 

destruction of evidence, improper 

influencing of witnesses, or flight of the 

subject. Public release of information in 

the TSRS also could endanger the safety 

of confidential sources and law 

enforcement personnel. Congress 

anticipated these types of potentially 

damaging consequences of allowing 

access to some categories of Government 

records and included the exemption 

provisions in the Privacy Act to address 

them. According to the Office of 

Management and Budget’s Guidelines 

for Privacy Act Implementation (OMB 

Guidelines), ‘‘[t]he drafters of the Act 

recognized that the application of all the 

requirements of the Act to certain 

categories of records would have had 

undesirable and often unacceptable 

effects upon agencies in the conduct of 

necessary public business.’’ 7 Frustrating 

the detection and prevention of terrorist 

activities and endangering the lives of 

law enforcement personnel are the type 

of ‘‘undesirable’’ and ‘‘unacceptable’’

effects on the Government’s operation 

that the drafters of the Privacy Act 

sought to avoid through the allowance 

of exemptions. Thus, the FBI’s claim of 

exemption from the access provisions of 

the Privacy Act for the TSRS is 

consistent with the principles of public 

policy reflected in the Act. 

Although the FBI has claimed 

exemption from the access and 

amendment requirements of subsection 

(d), this exemption applies only to those 

records or portions of records contained 

in the TSRS that meet the requirements 

for exemption. While the FBI anticipates 

that all the records in the TSRS meet 

such requirements, individuals may 

submit requests for access to any nonexempt records pertaining to them. In 

addition, the FBI may allow individuals 

access to exempt records on a 

discretionary basis under proposed 28 

CFR 16.96(r)(2). The FBI also will 

consider requests for amendment of 

records under this discretionary 

procedure. In addition, the TSC will 

work with the agencies that use data 

from the TSDB in their screening 

operations to assist those agencies in 

helping individuals who may be 

misidentified during the screening 

process. 

EPIC stated that the FBI’s 

discretionary procedures for access and 

amendment and its assistance to 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 72201 

8 5 U.S.C. 552a(k)(2). 

9 5 U.S.C. 552a(j)(2). 

10 70 FR 43716 (July 28, 2005). 

11 5 U.S.C. 552a(k)(1). 

12 5 U.S.C. 552a(e)(1). 

screening agencies in resolving 

complaints provide inadequate recourse 

for individuals misidentified as watch 

list matches. This is in part, according 

to EPIC, because the screening agencies 

do not have effective redress processes 

in place for those adversely affected by 

watch list screening procedures. The 

FBI believes that its procedures strike 

the appropriate balance between the 

interest in public safety and the needs 

of those individuals who experience 

repeated difficulties related to terrorist 

watch list information. The FBI and its 

partner agencies in the TSC continue to 

work to improve redress processes 

related to terrorist screening. 

EPIC also stated that the application 

of the claimed exemptions to the entire 

TSRS is inappropriate, because the 

system will contain information that 

should be subject to access. EFF/PA 

objected to applying any exemptions to 

information about misidentified 

persons. They argued that because 

misidentified persons are not actually 

subjects of an investigation, the release 

of information about them would not 

reveal the Government’s interest in 

investigating terrorists. Therefore, they 

argued, exemption from provisions such 

as subsection (c)(3) regarding 

accounting of record disclosures, is 

unwarranted. 

As stated in subsection proposed 28 

CFR 16.96(r)(2), the exemptions claimed 

by the FBI for the TSRS apply only to 

the extent that information in the 

system is subject to one of those 

exemptions. If any record or portion of 

a record in the TSRS is not subject to 

the claimed exemptions, the FBI will 

release that information, as appropriate, 

in response to a proper Privacy Act 

request. The FBI is claiming exemptions 

for the entire TSRS, however, in 

accordance with the language of 5 

U.S.C. 552a(j) and (k), which permits 

the head of an agency ‘‘to exempt any 

system of records’’ from the access 

requirements of the Privacy Act. 

Furthermore, as stated in the proposed 

rule, the FBI may waive an applicable 

exemption where compliance with 

access procedures would not appear to 

interfere with or adversely affect the 

counterterrorism processes of the TSRS 

and the overall law enforcement 

process. 

With respect to the comments of EFF/ 

PA on misidentified persons, 

individuals are misidentified as known 

or suspected terrorists during the 

screening process when their names and 

other identifying information are the 

same as, or very similar to, that of a 

known or suspected terrorist. Disclosing 

information about misidentified 

persons, therefore, could reveal the 

Government’s investigative interest in a 

terrorist suspect, because it could make 

known the name of the individual who 

actually is the subject of the 

Government’s interest. Consequently, 

the Government has as great an interest 

in protecting the confidentiality of 

identifying information of misidentified 

persons as it does in protecting the 

confidentiality of the identities of the 

actual persons of interest. The FBI has 

added a discussion of this justification 

in sections 16.96(s)(1) and (3) of the 

final rule. 

EPIC raised a question about the FBI’s 

ability to use 5 U.S.C. 552a(k)(2) as the 

basis for exempting the TSRS from the 

access provisions in subsection (d). 

EPIC stated that exemption (k)(2) is 

applicable only where the system of 

records consists of investigatory 

material compiled for law enforcement 

purposes. EPIC further stated that 

exemption (k)(2) generally does not 

permit an agency to deny an individual 

access to a record where the agency’s 

maintenance of the record resulted in 

the individual being denied a right, 

privilege, or benefit to which he would 

otherwise be entitled by Federal law, or 

for which he would otherwise be 

eligible.8 EPIC requested further 

explanation of the FBI’s authority to 

exempt the TSRS from the Privacy Act’s 

access provisions, in light of the 

limitations on the applicability of the 

(k)(2) exemption. 

Under the Privacy Act, an agency may 

exempt a system of records from the 

access provisions of subsections (c) and 

(d) if the system of records meets certain 

criteria under 5 U.S.C. 552a(j) or (k). 

The FBI is exempting the TSRS from the 

access provisions under the authority of 

5 U.S.C. 552a(j)(2), (k)(1), and (k)(2). 

Exemption (j)(2) applies where a 

system of records consists of 

information compiled for purposes of a 

criminal investigation and the system is 

maintained by an agency or component 

of the agency that performs as its 

principal function any activity 

pertaining to the enforcement of 

criminal laws, including efforts to 

prevent, control, or reduce crime or to 

apprehend criminals.9 The records in 

the TSRS come within the scope of the 

(j)(2) exemption because they are 

maintained by the FBI for the purpose 

of identifying individuals who pose 

potential terrorist threats and enforcing 

the criminal laws with respect to those 

individuals.10

Exemption (k)(1) applies to a system 

of records that contains information 

classified in the interest of national 

security.11 Some records in the TSRS 

are subject to exemption (k)(1) because 

they contain such classified 

information. 

Exemption (k)(2) applies to 

investigatory material compiled for law 

enforcement purposes that is not 

otherwise covered by exemption (j)(2). 

The FBI believes most, if not all, records 

in the TSRS fall within the scope of 

exemptions (j)(2) and (k)(1). The FBI is 

invoking exemption (k)(2) as a 

precautionary measure to protect 

investigatory information that may not 

be covered by exemption (j)(2) or (k)(1). 

If an instance arises where a record is 

not covered by exemptions (j)(2) or 

(k)(1), and the exception to exemption 

(k)(2) applies regarding denial of an 

individual’s right, privilege, or benefit 

due to maintenance of the record at 

issue, the FBI will provide the 

individual access to that record to the 

extent that the law requires. 

B. Exemption From Subsection (e)(1) 

(Relevant and Necessary) 

EPIC objected to the FBI’s proposal to 

exempt the TSRS from subsection (e)(1) 

of the Privacy Act, which requires an 

agency to ‘‘maintain in its records only 

such information about an individual as 

is relevant and necessary to accomplish 

a purpose of the agency required to be 

accomplished by statute or by executive 

order of the President.’’ 12 EPIC stated 

that exemption of the TSRS from 

subsection (e)(1) will increase the 

likelihood that the system will contain 

erroneous and invasive information 

unrelated to terrorist screening. 

As discussed in the notice of 

proposed rulemaking, the FBI is 

exempting the TSRS from subsection 

(e)(1) in furtherance of the screening 

and law enforcement purposes of the 

system. The collection of information 

during the screening process and the 

facilitation of an appropriate law 

enforcement response may involve the 

collection of identifying information 

that, following completion of the 

screening or response, turns out to have 

been unnecessary. It is not always 

possible to know in advance what 

information will be relevant or 

necessary, such that the TSC and the 

FBI can tailor their information 

collection in all cases to meet the 

requirements of subsection (e)(1). This 

is not, however, inconsistent with the 

principles of the Privacy Act. As 

discussed above, the drafters of the 

Privacy Act established exemptions 

from provisions such as subsection 

72202 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 

13OMB Guidelines, 40 FR 28971 (July 9, 1975). 

14 5 U.S.C. 552a(e)(5). 

15See Memorandum of Understanding on the Use 

and Integration of Screening Information to Protect 

Against Terrorism at 1, (Sept. 16, 2003). 

16 5 U.S.C. 552a(g). 

17 70 FR 43663 (July 28, 2005). 

(e)(1) to avoid inappropriately limiting 

the ability of the Government to carry 

out certain functions, such as law 

enforcement.13 Constraining the 

collection of information included in 

the TSRS in accordance with the 

‘‘relevant and necessary’’ requirement of 

subsection (e)(1) could discourage the 

appropriate collection of information, 

and thereby impede the Government’s 

efforts to detect and apprehend 

terrorists. It is, therefore, appropriate to 

exempt the TSRS from subsection (e)(1). 

C. Exemption From Subsection (e)(5) 

(Accuracy, Relevance, Timeliness and 

Completeness) 

EPIC and EFF/PA objected to the 

FBI’s proposal to exempt the TSRS from 

subsection (e)(5) of the Privacy Act, 

which requires agencies to ‘‘maintain all 

records which are used by the agency in 

making any determination about any 

individual with such accuracy, 

relevance, timeliness, and completeness 

as is reasonably necessary to assure 

fairness to the individual in the 

determination.’’ 14 EPIC and EFF/PA 

stated that exemption of the TSRS from 

subsection (e)(5) is inconsistent with the 

TSC’s obligation under its governing 

organizational document to develop and 

maintain ‘‘the most thorough, accurate, 

and current information possible’’ about 

known or appropriately suspected 

terrorists.15

As discussed in the notice of 

proposed rulemaking, the TSC supports 

agencies that conduct terrorism 

investigations by collecting information 

from encounters with known or 

suspected terrorists. It is not always 

possible to determine, when collecting 

information during an encounter with a 

terrorist suspect, whether the 

information is accurate, relevant, timely, 

and complete. It is the nature of the 

investigative process to obtain 

information of uncertain accuracy and 

completeness with the goal of achieving 

accuracy and completeness. Moreover, 

with the passage of time, seemingly 

irrelevant or untimely information 

collected during an encounter with a 

terrorist suspect may acquire new 

significance as further investigation 

brings new details to light. 

The TSC’s obligation to develop and 

maintain the most thorough, accurate, 

and current information possible about 

individuals known or suspected to be 

terrorists must be read in the context of 

the investigative process. The FBI 

completely agrees with EPIC’s view that 

‘‘[m]aintaining the most accurate 

possible data is unquestionably a 

critical goal of the TSRS * * * ’’ To 

meet this goal, TSC has implemented 

internal quality assurance procedures. 

Applying the requirements of 

subsection (e)(5), however, to the TSRS 

would hinder the ability of the law 

enforcement and intelligence agencies 

supported by TSC to conduct 

investigations and develop intelligence 

necessary for effective law enforcement 

and counterterrorism efforts. 

The FBI also is exempting the TSRS 

from the requirements of subsection 

(e)(5) in order to prevent the use of a 

challenge under subsection (e)(5) as a 

collateral means to obtain access to 

records in the TSRS. As discussed 

above, the FBI has exempted TSRS 

records from the access and amendment 

requirements of subsection (d) of the 

Privacy Act in order to protect the 

integrity of counterterrorism 

investigations. In the past, where 

agencies have exempted records from 

access under subsection (d), individuals 

have asserted challenges to a record’s 

accuracy, timeliness, completeness, 

and/or relevance under subsection (e)(5) 

as an alternative means to get access to 

the records. Exempting the TSRS from 

subsection (e)(5) serves to prevent the 

use of that subsection to circumvent the 

exemption claimed from subsection (d). 

The FBI has added a discussion of this 

justification in section 16.96(s)(7) of the 

final rule. 

D. Exemption From Subsection (g) (Civil 

Remedies) 

EPIC objected to the FBI’s proposal to 

exempt the TSRS from subsection (g) of 

the Privacy Act, which establishes civil 

remedies for violations of certain of the 

Act’s provisions.16 Specifically, EPIC 

stated that the FBI failed to explain why 

it is exempting the TSRS from the civil 

remedies provisions in subsection (g) as 

they relate to the right to enforce the 

amendment requirements under 

subsection (d) of the Act. 

The proposed rule states that the FBI 

is exempting the TSRS from subsection 

(g) ‘‘to the extent that the system is 

exempt from other specific subsections 

of the Privacy Act.’’ 17 Therefore, the 

TSRS is exempt from the civil remedies 

provisions only to extent that the TSRS 

is exempt from the underlying 

requirement to which the remedies 

relate. Because the FBI is claiming 

exemption from the record amendment 

requirement under subsection (d), it also 

is claiming exemption from the civil 

remedy provisions under subsection (g), 

as they relate to enforcement of 

subsection (d). 

E. Extension of Opportunity for Public 

Comment 

EPIC stated that the FBI should 

suspend this rulemaking and provide a 

further opportunity for public comment 

after the FBI has publicly released more 

information in response to EPIC’s 

previously filed Freedom of Information 

Act (FOIA) request regarding the use of 

the TSDB for the Transportation 

Security Administration’s proposed 

Secure Flight program. 

Information about specific programs, 

such as Secure Flight, that will use the 

TSDB to perform terrorist screening may 

be informative in understanding the 

TSRS. The FBI does not believe, 

however, that this type of information is 

necessary to allow the public to engage 

in informed consideration of the issues 

raised by the proposed rule and the 

operation of the TSRS. Therefore, the 

FBI sees no basis to indefinitely 

suspend this rulemaking, pending the 

release of additional information about 

the Secure Flight program. 

F. Routine Uses 

EPIC and EFF/PA generally objected 

to the breadth of the routine uses set 

forth in the TSRS notice. EFF/PA stated 

that the FBI’s intention to disclose only 

those records that are ‘‘relevant’’ in 

accordance with any current and future 

blanket routine uses established for FBI 

record systems fails to establish any 

limit on disclosure, because the FBI has 

exempted the TSRS from the 

requirement under subsection (e)(1) to 

maintain only relevant records. This 

comment incorrectly links the issue of 

whether the collection of a record is 

properly relevant to the 

accomplishment of an agency purpose 

and whether the disclosure of a record 

is relevant to the purpose of a routine 

use. By exempting the TSRS from the 

relevance requirement under subsection 

(e)(1), the FBI has permitted the 

collection of records whose relevance to 

the purpose of the TSRS may be 

unclear. The FBI is not, however, 

claiming that it will disclose a record 

without determining whether the record 

is relevant to the purpose of the routine 

use under which it is to be disclosed. By 

stating that the TSC will disclose only 

those records that are ‘‘relevant’’ in 

accordance with any current and future 

blanket routine uses established for FBI 

record systems, the FBI is limiting, not 

expanding, its ability to make 

disclosures of records in the TSRS. 

EFF/PA objected to routine use (F) as 

allowing unlimited disclosure, 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 72203 

18HSPD–6 at 1. 

including to consumer reporting 

agencies. The FBI specifically states in 

the system of records notice that the 

TSC will not make disclosures to 

consumer reporting agencies. The FBI 

will not use general language of a 

routine use to override this specific 

statement. Furthermore, the language of 

routine use (F) limits its scope to 

disclosures that are in furtherance of the 

TSC’s function. TSC anticipates that it 

will use this routine use in order to 

share information with other agencies 

and entities (other than consumer 

reporting agencies) to verify the quality 

and accuracy of its information. 

EFF/PA objected to routine uses (J) 

and (K) because they permit disclosure 

of TSRS records to Governmental 

authorities with law enforcement 

responsibilities. EFF/PA argued that this 

allows TSC to make disclosures beyond 

the scope of the counterterrorism 

purposes of the TSRS. 

The TSC maintains information about 

individuals known or appropriately 

suspected to be or have been engaged in 

conduct constituting, in preparation for, 

in aid of, or related to terrorism.18

Terrorist activities are inherently 

criminal in nature. In addition, 

individuals engaged in preparation for 

terrorist acts engage in illegal activities 

that support the terrorist enterprise. 

Therefore, government authorities 

involved in law enforcement are 

integrally related to counterterrorism 

efforts. The FBI accordingly has written 

routine uses (J) and (K) to permit 

appropriate information sharing with 

such authorities. 

G. Maintenance of Misidentified Person 

Information 

EFF/PA stated that including 

information on misidentified persons in 

the TSRS has inherent privacy and civil 

liberties costs. EFF/PA suggested that 

instead of maintaining information on 

misidentified persons in order to avoid 

causing them inconvenience during the 

screening process, the Federal 

government should discontinue 

information-based terrorist screening. 

Alternatively, the FBI should segregate 

data on misidentified persons to avoid 

cross-contamination with data on 

persons of interest. 

Whether the government should 

engage in information-based terrorist 

screening is beyond the scope of the 

issues raised for public comment 

through the TSRS system of records 

notice and this rulemaking. In 

implementing the directive of HSPD–6 

to integrate information on known and 

appropriately suspected terrorists for 

use in screening processes, the FBI has 

determined that maintenance of 

information on misidentified persons is 

essential to carrying out this function in 

a fair and efficient manner. The FBI, 

therefore, has reflected its handling of 

such information in the TSRS notice 

and the proposed rule. 

In order to maintain the integrity of 

the TSDB and avoid crosscontamination of information, data on 

misidentified persons is not maintained 

in the TSDB. All records containing 

information on misidentified persons 

are clearly marked, and the TSC has 

procedures in place to prevent the 

accidental inclusion of misidentified 

persons’ data in TSC records on known 

or appropriately suspected terrorists. In 

addition, the TSC has attempted to 

mitigate any privacy and civil liberties 

costs associated with its use of 

misidentified persons’ information 

through data quality and security 

assurance procedures. 

Final Rule; Implementation of Routine 

Uses 

After consideration of the public 

comments, the FBI has determined to 

issue the proposed rule in final form, 

with the changes described above. In 

addition, the FBI determined that none 

of the public comments merited changes 

to routine uses for the TSRS system of 

records prior to their implementation. 

Regulatory Flexibility Act 

This rule relates to individuals, as 

opposed to small business entities. 

Nevertheless, pursuant to the 

requirements of the Regulatory 

Flexibility Act, 5 U.S.C. 601–612, the 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Small Entity Inquiries 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 requires the FBI to comply with 

small entity requests for information 

and advice about compliance with 

statutes and regulations within FBI 

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. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)) requires that the FBI 

consider the impact of paperwork and 

other information collection burdens 

imposed on the public. There are no 

current or new information collection 

requirements associated with this rule. 

Analysis of Regulatory Impacts 

This rule is not a ‘‘significant 

regulatory action’’ within the meaning 

of Executive Order 12886. Because the 

economic impact should be minimal, 

further regulatory evaluation is not 

necessary. Moreover, the Attorney 

General certifies that this rule 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. 

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 aggregate, $100 million or more in 

any one year the UMRA analysis is 

required. This rule would not impose 

Federal mandates on any State, local, or 

tribal government or the private sector. 

Executive Order 13132, Federalism 

The FBI 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. 

Environmental Analysis 

The FBI 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. 

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. 

72204 Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 

List of Subjects in 28 CFR Part 16 

Administrative Practices and 

Procedures, Courts, Freedom of 

Information Act, Government in the 

Sunshine Act, and the Privacy Act. 

■ Pursuant to the authority vested in the 

Attorney General by 5 U.S.C. 552a and 

delegated to me by Attorney General 

Order 793–78, amend 28 CFR part 16 as 

follows: 

PART 16—PRODUCTION OR 

DISCLOSURE OF MATERIAL OR 

INFORMATION 

■ 1. The authority citation for part 16 

continues to read as follows: 

Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 

553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 

534; 31 U.S.C. 3717, 9701. 

Subpart E—Exemption of Records 

Systems Under the Privacy Act 

■ 2. Section 16.96 is amended to add 

new paragraphs (r) and (s) to read as 

follows: 

§ 16.96 Exemption of Federal Bureau of 

Investigation Systems’—limited access. 

* * * * * 

(r) The following system of records is 

exempt from 5 U.S.C. 552a(c)(3) and (4); 

(d)(1), (2), (3), and (4); (e)(1), (2), (3), (5), 

and (8); and (g): 

(1) Terrorist Screening Records 

System (TSRS) (JUSTICE/FBI–019). 

(2) These exemptions apply only to 

the extent that information in this 

system is subject to exemption pursuant 

to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2). 

Where compliance would not appear to 

interfere with or adversely affect the 

counterterrorism purposes of this 

system, and the overall law enforcement 

process, the applicable exemption may 

be waived by the FBI in its sole 

discretion. 

(s) Exemptions from the particular 

subsections are justified for the 

following reasons: 

(1) From subsection (c)(3) because 

making available to a record subject the 

accounting of disclosures from records 

concerning him/her would specifically 

reveal any investigative interest in the 

individual. Revealing this information 

could reasonably be expected to 

compromise ongoing efforts to 

investigate a known or suspected 

terrorist by notifying the record subject 

that he/she is under investigation. This 

information could also permit the 

record subject to take measures to 

impede the investigation, e.g., destroy 

evidence, intimidate potential 

witnesses, or flee the area to avoid or 

impede the investigation. Similarly, 

disclosing this information to 

individuals who have been 

misidentified as known or suspected 

terrorists due to a close name similarity 

could reveal the Government’s 

investigative interest in a terrorist 

suspect, because it could make known 

the name of the individual who actually 

is the subject of the Government’s 

interest. Consequently, the Government 

has as great an interest in protecting the 

confidentiality of identifying 

information of misidentified persons as 

it does in protecting the confidentiality 

of the identities of known or suspected 

terrorists. 

(2) From subsection (c)(4) because this 

system is exempt from the access and 

amendment provisions of subsection 

(d). 

(3) From subsections (d)(1), (2), (3), 

and (4) because these provisions 

concern individual access to and 

amendment of records contained in this 

system, which consists of 

counterterrorism, investigatory and 

intelligence records. Compliance with 

these provisions could alert the subject 

of a terrorism investigation of the fact 

and nature of the investigation, and/or 

the investigative interest of the FBI and/ 

or other intelligence or law enforcement 

agencies; compromise sensitive 

information classified in the interest of 

national security; interfere with the 

overall law enforcement process by 

leading to the destruction of evidence, 

improper influencing of witnesses, 

fabrication of testimony, and/or flight of 

the subject; could identify a confidential 

source or disclose information which 

would constitute an unwarranted 

invasion of another’s personal privacy; 

reveal a sensitive investigative or 

intelligence technique; or constitute a 

potential danger to the health or safety 

of law enforcement personnel, 

confidential informants, and witnesses. 

Amendment of these records would 

interfere with ongoing counterterrorism 

investigations and analysis activities 

and impose an impossible 

administrative burden by requiring 

investigations, analyses, and reports to 

be continuously reinvestigated and 

revised. Similarly, compliance with 

these provisions with respect to records 

on individuals who have been 

misidentified as known or suspected 

terrorists due to a close name similarity 

could reveal the Government’s 

investigative interest in a terrorist 

suspect, because it could make known 

the name of the individual who actually 

is the subject of the Government’s 

interest. 

(4) From subsection (e)(1) because it 

is not always possible for TSC to know 

in advance what information is relevant 

and necessary for it to complete an 

identity comparison between the 

individual being screened and a known 

or suspected terrorist. Also, because 

TSC and the FBI may not always know 

what information about an encounter 

with a known or suspected terrorist will 

be relevant to law enforcement for the 

purpose of conducting an operational 

response. 

(5) From subsection (e)(2) because 

application of this provision could 

present a serious impediment to 

counterterrorism efforts in that it would 

put the subject of an investigation, study 

or analysis on notice of that fact, thereby 

permitting the subject to engage in 

conduct designed to frustrate or impede 

that activity. The nature of 

counterterrorism investigations is such 

that vital information about an 

individual frequently can be obtained 

only from other persons who are 

familiar with such individual and his/ 

her activities. In such investigations it is 

not feasible to rely upon information 

furnished by the individual concerning 

his own activities. 

(6) From subsection (e)(3), to the 

extent that this subsection is interpreted 

to require TSC to provide notice to an 

individual if TSC receives information 

about that individual from a third party. 

Should the subsection be so interpreted, 

exemption from this provision is 

necessary to avoid impeding 

counterterrorism efforts by putting the 

subject of an investigation, study or 

analysis on notice of that fact, thereby 

permitting the subject to engage in 

conduct intended to frustrate or impede 

that activity. 

(7) From subsection (e)(5) because 

many of the records in this system are 

derived from other domestic and foreign 

agency record systems and therefore it 

is not possible for the FBI and the TSC 

to vouch for their compliance with this 

provision; however, the TSC has 

implemented internal quality assurance 

procedures to ensure that TSC terrorist 

screening data is as thorough, accurate, 

and current as possible. In addition, 

TSC supports but does not conduct 

investigations; therefore, it must be able 

to collect information related to terrorist 

identities and encounters for 

distribution to law enforcement and 

intelligence agencies that do conduct 

terrorism investigations. In the 

collection of information for law 

enforcement, counterterrorism, and 

intelligence purposes, it is impossible to 

determine in advance what information 

is accurate, relevant, timely, and 

complete. With the passage of time, 

seemingly irrelevant or untimely 

information may acquire new 

significance as further investigation 

brings new details to light. The 

Federal Register / Vol. 70, No. 231 / Friday, December 2, 2005 / Rules and Regulations 72205 

restrictions imposed by (e)(5) would 

limit the ability of those agencies’

trained investigators and intelligence 

analysts to exercise their judgment in 

conducting investigations and impede 

the development of intelligence 

necessary for effective law enforcement 

and counterterrorism efforts. The TSC 

has, however, implemented internal 

quality assurance procedures to ensure 

that TSC terrorist screening data is as 

thorough, accurate, and current as 

possible. The FBI also is exempting the 

TSRS from the requirements of 

subsection (e)(5) in order to prevent the 

use of a challenge under subsection 

(e)(5) as a collateral means to obtain 

access to records in the TSRS. The FBI 

has exempted TSRS records from the 

access and amendment requirements of 

subsection (d) of the Privacy Act in 

order to protect the integrity of 

counterterrorism investigations. 

Exempting the TSRS from subsection 

(e)(5) serves to prevent the assertion of 

challenges to a record’s accuracy, 

timeliness, completeness, and/or 

relevance under subsection (e)(5) to 

circumvent the exemption claimed from 

subsection (d). 

(8) From subsection (e)(8) because to 

require individual notice of disclosure 

of information due to compulsory legal 

process would pose an impossible 

administrative burden on the FBI and 

the TSC and could alert the subjects of 

counterterrorism, law enforcement, or 

intelligence investigations to the fact of 

those investigations when not 

previously known. 

(9) From subsection (g) to the extent 

that the system is exempt from other 

specific subsections of the Privacy Act. 

Dated: November 22, 2005. 

Paul R. Corts, 

Assistant Attorney General for 

Administration. 

[FR Doc. 05–23568 Filed 12–1–05; 8:45 am] 

BILLING CODE 4410–02–P 

PENSION BENEFIT GUARANTY 

CORPORATION 

29 CFR Part 4044 

RIN 1212–AA55 

Valuation of Benefits; Mortality 

Assumptions 

AGENCY: Pension Benefit Guaranty 

Corporation. 

ACTION: Final rule. 

SUMMARY: The Pension Benefit Guaranty 

Corporation is amending its benefit 

valuation regulation by adopting more 

current mortality assumptions. The 

mortality assumptions prescribed under 

PBGC’s regulations to be used to value 

benefits for non-disabled (‘‘healthy’’) 

participants are taken from the 1983 

Group Annuity Mortality (GAM–83) 

Tables. The PBGC published a final rule 

adopting these tables in 1993, noting 

that many private-sector insurers used 

the GAM–83 Tables when setting group 

annuity prices. At that time, the PBGC 

also said that it intended to keep each 

of its individual valuation assumptions 

in line with those of private-sector 

insurers, and to modify its mortality 

assumptions whenever it is necessary to 

do so to achieve consistency with the 

private insurer assumptions. This rule 

updates those assumptions by replacing 

a version of the GAM–83 Tables with a 

version of the GAM–94 Tables. The 

updated mortality assumptions will 

better conform to those used by privatesector insurers in pricing group 

annuities. 

DATES: Effective January 1, 2006. For a 

discussion of applicability of the 

amendments, see the Applicability 

section in SUPPLEMENTARY INFORMATION. 

FOR FURTHER INFORMATION CONTACT: 

James J. Armbruster, Acting Director, 

Legislative and Regulatory Department, 

or James L. Beller, Jr., Attorney, 

Legislative and Regulatory Department, 

PBGC, 1200 K Street, N.W., Washington, 

DC 20005–4026; 202–326–4024. (TTY/ 

TDD users may call the Federal relay 

service toll-free at 1–800–877–8339 and 

ask to be connected to 202–326–4024.) 

SUPPLEMENTARY INFORMATION: On March 

14, 2005 (at 70 FR 12429), the Pension 

Benefit Guaranty Corporation (PBGC) 

published a proposed rule modifying 29 

CFR part 4044 (Allocation of Assets in 

Single-employer Plans). The PBGC 

received one comment letter on the 

proposed rule (which is addressed 

below) and is issuing the final 

regulation as proposed. 

The PBGC’s regulations provide rules 

for valuing benefits in a single-employer 

plan that terminates in a distress or 

involuntary termination. (The rules are 

codified at 29 CFR part 4044, subpart B.) 

The PBGC uses these rules to determine: 

(1) The extent to which participants’

benefits are funded under the allocation 

rules of ERISA section 4044, (2) whether 

a plan is sufficient for guaranteed 

benefits, and (3) how much an employer 

owes the PBGC as a result of a plan 

termination under ERISA section 4062. 

Employers must use these rules to 

determine the value of plan benefit 

liabilities in annual reports required to 

be submitted under ERISA section 4010, 

and may use these rules to ensure that 

plan spinoffs, mergers, and transfers 

comply with Internal Revenue Code 

section 414(l). 

General Valuation Approach 

The valuation rules prescribe a 

number of assumptions intended to 

produce reasonable valuation results on 

average for the range of plans 

terminating in distress or involuntary 

terminations, rather than for any 

particular plan or plan type. The 

assumptions prescribed by this rule for 

valuing benefits in terminating plans 

match the private-sector annuity market 

to the extent possible. 

The market cost of providing annuity 

benefits is based upon data from 

periodic surveys conducted for the 

PBGC by the American Council of Life 

Insurers (the ACLI surveys). These ACLI 

surveys ask insurers for pricing 

information on group annuities. Each 

respondent to the surveys provides its 

prices (net of administrative expenses) 

for a range of ages for immediate 

annuities (annuities where payments 

start immediately) and for deferred 

annuities (annuities where payments are 

deferred to age 65). Prices of each of the 

two types of annuities are averaged at 

each age to get an average market price. 

Interest factors are derived so that, when 

combined with the PBGC’s healthy-life 

mortality assumptions, they provide the 

best fit for the average market prices (as 

obtained from the ACLI surveys) over 

the entire range of ages. The interest 

factors are recalibrated to the annuity 

survey prices each year. Each month 

between recalibrations, the interest 

factors are adjusted based on changes in 

the yield on long-term corporate 

investment-grade bonds. The interest 

factors are then used in conjunction 

with the PBGC’s mortality assumptions 

(and other PBGC assumptions) to value 

annuity benefits. 

These derived interest factors are not 

market interest rates. The factors stand 

in for all the many components used in 

annuity pricing that are not reflected in 

the given mortality table—e.g., assumed 

yield on investment, margins for profit 

and contingencies, premium and 

income taxes, and marketing and sales 

expenses. Because of the relationship 

among annuity prices, a mortality table, 

and the derived interest factors, it is 

never meaningful to compare PBGC’s 

interest factors to market interest rates. 

The PBGC’s interest factors are 

meaningful only in combination with 

the PBGC’s mortality assumptions. 

Mortality Assumptions 

One set of assumptions prescribed by 

the valuation regulation relates to the 

probabilities that a participant (or 

beneficiary) will survive to each