FR Doc E7-21907

[Federal Register: November 9, 2007 (Volume 72, Number 217)]
[Rules and Regulations]
[Page 63705-63710]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09no07-16]

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Part III

Department of Homeland Security

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Transportation Security Administration

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49 CFR Part 1507

Privacy Act of 1974: Implementation of Exemptions and System of
Records; Secure Flight Records; Final Rule and Notice

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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Part 1507

[Docket No. TSA-2007-28972; Amendment No. 1507-3]
RIN 1652-AA48

Privacy Act of 1974: Implementation of Exemptions; Secure Flight
Records

AGENCY: Transportation Security Administration, DHS.

ACTION: Final rule.

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SUMMARY: Following a Notice of Proposed Rulemaking (NPRM) and public
comment, this rule amends the Transportation Security Administration
(TSA)'s regulations by exempting a new system of records from several
provisions of the Privacy Act. The Secure Flight Records system (DHS/
TSA 019) includes records used as part of the watch list matching
program known as Secure Flight, which implements a mandate of the
Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) and is
consistent with TSA's authority under the Aviation and Transportation
Security Act (ATSA). Under the Secure Flight program, TSA would assume
the current watch list matching function to the No Fly and Selectee
Lists from aircraft operators. TSA is exempting DHS/TSA 019 from
provisions of the Privacy Act to the extent necessary to protect the
integrity of investigatory information that may be included in the
system of records.

DATES: Effective December 10, 2007.

FOR FURTHER INFORMATION CONTACT: Peter Pietra, Director, Privacy Policy
and Compliance, TSA-36, Transportation Security Administration, 601
South 12th Street, Arlington, VA 22202-4220; facsimile (571) 227-1400;
e-mail TSAPrivacy@dhs.gov; or Hugo Teufel III (703-235-0780), Chief
Privacy Officer, U.S. Department of Homeland Security, Washington, DC
20528; e-mail pia@dhs.gov.

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Document

You can get an electronic copy using the Internet by--
(1) Searching the electronic Federal Docket Management System
(FDMS) Web page at http://www.regulations.gov; (2) Accessing the Government Printing Office's Web page at http://

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
individuals 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 TSA to comply with small entity requests for information
and advice about 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
.

Abbreviations and Terms Used in This Document

DHS--Department of Homeland Security
FBI--Federal Bureau of Investigation
TSA--Transportation Security Administration

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.
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.
On August 23, 2007, TSA published a notice (Part III, 72 FR 48392)
establishing a new Privacy Act system of records entitled Secure Flight
Records (DHS/TSA 019). The Secure Flight Records system maintains
records for the Secure Flight Program which carries out the requirement
of section 4012(a)(1) of IRTPA (Pub. L. 08-458, 188 Stat. 3638, Dec.
17, 2004) and provides for TSA's assumption from air carriers the
comparison of passenger information for domestic flights to the
consolidated and integrated terrorist watch list maintained by the
Federal Government. Section 4012(a)(2) of IRTPA similarly requires the
DHS to compare passenger information for international flights to and
from the United States against the consolidated and integrated
terrorist watch list before departure of such flights. Further, as
recommended by the 9/11 Commission, TSA may access the ``larger set of
watch lists maintained by the Federal Government.'' \1\ Therefore, as
warranted by security considerations, TSA may use the full Terrorist
Screening Database (TSDB) or other government databases, such as
intelligence or law enforcement databases (referred to as ``watch list
matching''). For example, TSA may obtain intelligence that flights
flying a particular route may be subject to an increased security risk.
Under this circumstance, TSA may decide to compare passenger
information on some or all of the flights flying that route against the
full TSDB or other government database.
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\1\ ``National Commission on Terrorist Attacks Upon the United
States'', page 393.
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In conjunction with the establishment and publication of the Secure
Flight Records system of records on August 23, 2007, TSA initiated a
proposed rulemaking (Part III, 72 FR 48397) to exempt this system of
records from a number of provisions of the Privacy Act because this
system of records may contain records or information recompiled from,
or created from, information contained in other systems of records,
which are exempt from certain provisions of the Privacy Act. For these
records or information only, to the extent necessary to protect the
integrity of watch list matching procedures performed under the Secure
Flight Program and in accordance with 5 U.S.C. 552a(j)(2) and (k)(2),
TSA is claiming the following exemptions for certain records within the
Secure Flight Records system: 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2),
(3), and (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); (f),
and (g).

Discussion of Comments

TSA received comments on the proposed rule from both the Electronic
Frontier Foundation (EFF) and the Electronic Privacy Information Center
(EPIC). Some of their comments dealt more generally with the Secure
Flight Program and will be addressed in the final rule for the Secure
Flight Program.

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The remaining comments relate to the exemptions claimed for the Secure
Flight Records system, 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 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 and
national security purposes of the system and the overall law
enforcement and security process, the applicable exemptions may be
waived.
1. Applicability of Exemptions (j)(2), (k)(1), and (k)(2). EFF
raised a question about TSA's ability to use 5 U.S.C. 552a(j)(2),
(k)(1), and (k)(2) as the basis for exempting the system from portions
of the Privacy Act. 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 apprehend criminals. EFF alleges
that this exemption would only apply to the Secure Flight Records
system if TSA believes that millions of innocent citizens are
``criminal offenders or alleged offenders.'' TSA disagrees that the
Secure Flight Records system in any way suggests that the majority of
individuals undergoing screening by the Secure Flight program are
criminals. However, the Secure Flight system does contain records
originating from the systems of records of other law enforcement and
intelligence agencies, such as records obtained from the TSC of known
or suspected terrorists in the Terrorist Screening Database (TSDB) and
records of individuals identified on classified and unclassified
governmental watch lists, which may be properly exempt from certain
provisions of the Privacy Act pursuant to (j)(2). In order to ensure
that agencies' investigative or law enforcement efforts are unharmed,
and information relating to DHS activities are protected from
disclosure to subjects of investigations, TSA must use this exemption.
However, TSA does not assert exemptions to any provision of the Privacy
Act with respect to information submitted by or on behalf of individual
passengers or non-travelers in the course of making a reservation or
seeking access to a secured area under the Secure Flight program.
Exemption (k)(1) applies to records that contain information that
have been officially classified in the interest of national security.
EFF noted that the designated security classification in the Privacy
Act system or records notice for Secure Flight Records is
``[u]nclassified; Sensitive Security Information'' and, therefore, this
system could not be exempt under (k)(1). TSA appreciates the comment,
and upon re-examination concludes that the system will not be likely to
contain classified material. TSA will update its system of records
notice to delete the assertion of an exemption under (k)(1).
Exemption (k)(2) applies to investigatory material compiled for law
enforcement purposes that is not otherwise covered by exemption (j)(2),
provided that an individual is not denied 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. EFF alleges that Secure Flight potentially denies individuals
their right to travel, so the exemption may not be invoked with respect
to those individuals who have been denied this right and material in
the system should be provided to them.
As a preliminary matter, TSA does not believe that the Secure
Flight program denies individuals their right to travel. Courts have
consistently held that travelers do not have a Constitutional right to
travel by a single mode or the most convenient form of travel. See for
example: Town of Southold v. Town of East Hampton, 477 F.3d 38, 54 (2d
Cir. 2007); Gilmore v. Gonzales, 435 F.3d 1125, 1136 (9th Cir. 2006);
Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999). The Secure Flight
program would only regulate one mode of travel (aviation), and would
not impose any restriction on other mode of travel. Therefore, a
restriction on an individual's ability to board an aircraft as a result
of the Secure Flight program would not implicate a Constitutional right
to travel.
In addition, as noted above, information in this system may be
related to investigations arising out of DHS or other agency programs
and activities, and may pertain to law enforcement or national security
matters. In such cases, allowing access to information could alert
subjects of investigations of actual or potential criminal, civil, or
regulatory violations, and could reveal, in an untimely manner, DHS's
and other agencies' investigative interests in law enforcement efforts
to preserve national security. Further, to the extent that an
individual is denied a right, benefit, or privilege due to the
maintenance of a record by TSA in this system, TSA will provide access
to that record to the extent the law requires.
2. Exemption from Access and Amendment Requirements. The bulk of
both EFF and EPIC's comments constituted objections to TSA's proposal
to exempt portions of the system from 5 U.S.C. 552a(c)(3) and (4);
(d)(1), (2), (3), and (4); (e)(4)(G)-(I); and (f) which all relate to
an individual's ability to request access to and correction of records
in a system of records. Both groups are concerned that the watch lists
used by the Secure Flight Program contain errors and inaccuracies that
lead to inconveniences and, in some cases, a loss of liberty for
individuals who are placed on a watch list in error. EFF and EPIC do
not believe that TSA has an adequate redress process in place, and
thus, the need for access and amendment under the Privacy Act is
critical.
TSA claims these exemptions in order to protect information
relating to investigations from disclosure to subjects of
investigations and others who could interfere with investigatory
activities. Specifically, the exemptions are required to: Prevent
subjects of investigations from frustrating the investigative process;
avoid disclosure of investigative techniques; protect the privacy of
confidential sources; ensure TSA, DHS and other agencies ability to
obtain information from third party and other sources; and safeguard
sensitive information. Allowing amendment of these records could
interfere with ongoing counterterrorism, law enforcement, or
intelligence investigations and analysis activities and impose an
impossible administrative burden by requiring investigations, analyses,
and reports to be continuously reinvestigated and revised. The
exemptions proposed here are standard law enforcement and national
security exemptions exercised by Federal law enforcement and
intelligence agencies.
EFF and EPIC refer to the redress process, DHS Traveler Redress
Inquiry Program (DHS TRIP), as ``vague,'' ``discretionary,'' ``not
meaningful,'' and ``Kafkaesque.'' These assertions are simply
incorrect, and are not comments upon which TSA can meaningfully act.
The DHS TRIP program is a robust and effective mechanism for
individuals who believe that they have been delayed or prohibited from
boarding or denied entry to the airport sterile area as the result of
the Secure Flight program to

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seek redress and relief. With the implementation of Secure Flight, TSA
believes that it will become even more effective with uniform
application by the government, rather than relying on application by
individual airlines. When an individual requests access to his or her
information through the redress process, the request will be examined
on a case by case basis, and, after conferring with the appropriate
component or agency, the agency may waive applicable exemptions in
appropriate circumstances where it would not appear to interfere with
or adversely affect the law enforcement or national security purposes
of the systems from which the information is recompiled or in which it
is contained. Again, TSA shall not assert any exemption with respect to
information submitted by and collected from the individual or the
individual's representative in the course of the Secure Flight Program
or any redress process associated with the underlying records.
3. Exemption from Requirement to Collect Only Relevant and
Necessary Information. EFF and EPIC 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 groups' objection
stems from their conviction that the watch lists used by Secure Flight
are riddled with errors and inaccuracies. EFF states that the
implementation of this exemption ``will serve only to increase the
likelihood that Secure Flight will become an error-filled, invasive
repository of all sorts of information bearing no relationship to its
stated goals of expediting the pre-boarding process for travelers and
improving transportation security.'' TSA appreciates this concern and
similarly seeks to ensure that data used in the watch list matching
process is as thorough, accurate, and current as possible. However, TSA
must exempt portions of this system from (e)(1) because it is not
always possible for TSA or other agencies to know in advance what
information will be relevant or necessary for it to complete an
identity comparison between aviation passengers or certain non-
travelers and a known or suspected terrorist. For example, for one
individual hair color might be the distinguishing feature that allows
TSA to distinguish him or her from someone on the watch list. For other
individuals, eye color, or whether they have a tattoo may be data
needed to distinguish them from someone on the watch list. For these
individuals, hair or eye color is relevant, but not always necessary.
In addition, TSA and other agencies 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. Further, employing this exemption is not
inconsistent with the principles of the Privacy Act; the drafters of
the Act established exemptions to provisions like (e)(1) to avoid
inappropriately limiting the ability of the Government to carry out
certain functions such as law enforcement. Constraining the collection
of information in the Secure Flight Records system in accordance with
the ``relevant and necessary'' requirement could discourage the
appropriate collection of information and impede TSA's efforts to
identify known or suspected terrorists and keep them from threatening
transportation security.
4. Exemption from Requirement of Maintaining All Records Used by
the Agency in Making a Determination About an Individual with Accuracy,
Relevance, Timeliness, and Completeness. Section (e)(5) of the Privacy
Act 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.
The comments received from EFF and EPIC were concerned that the quality
of the watch lists used by the Secure Flight program are mediocre, and
that inaccuracies in the lists coupled with exempting records from
(e)(5) will lead to a loss of convenience and even liberty for those
individuals who are mistakenly put on a watch list. TSA is sensitive to
these concerns, however; because many of the records in this system
come from other domestic and foreign agency records systems, it is not
possible for TSA to ensure compliance with (e)(5). TSA is interested in
eliminating erroneous and out of date information from the watch list
matching process. To that end, the agency has implemented internal
quality assurance procedures to ensure that data used by Secure Flight
is as complete, accurate, and current as possible. 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 reveals additional details. The
restriction imposed by (e)(5) would hamper 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.
5. Exemption from the Requirement of Judicial Review. EFF and EPIC
both object to TSA's exemption of portions of the Secure Flight system
of records from 5 U.S.C. 552a(g), which grants the right to judicial
review. According to EFF and EPIC, the redress process offered by TSA
and DHS is ``unacceptably vague'' and ``not meaningful'' because it is
too ``discretionary.'' EFF states that without the right to judicial
review under the Privacy Act, it is unclear what recourse is available
to an individual who has been identified as potential match through
Secure Flight based on incorrect information. TSA disagrees. The
redress process is effective in assisting individuals who believe they
have been delayed or prohibited from boarding or denied entry to the
airport sterile area, as a result of the operation of the Secure Flight
program. Each separate request for redress is examined on a case by
case basis, and, after conferring with the appropriate agency, the
agency may waive applicable exemptions in appropriate circumstances and
where it would not appear to interfere with or adversely affect the law
enforcement or national security purposes of the systems from which the
information is recompiled or in which it is contained. If individuals
disagree with the agency's final decision in the redress process, the
Court of Appeals is the appropriate venue to contest the decision, not
a suit for amendment of records under the Privacy Act. As courts have
held, even for records that are not exempt from provisions of the
Privacy Act, the Privacy Act may not be used as ``a weapon to
collaterally attack agency determinations.'' Pellerin v. V.A., 790 F.2d
1553, 1555 (11th Cir. 1986). TSA's exemption of portions of the Secure
Flight Records system from judicial review does not impair an
individual's ability to seek redress when they believe they have been
erroneously delayed or denied boarding or entry to the airport sterile
area.

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

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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.

Regulatory Evaluation Summary

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).

Executive Order 12866 Assessment

In conducting these analyses, TSA has determined:
1. This rulemaking is not a ``significant regulatory action'' as
defined in the Executive Order. Accordingly, this rule has not been
reviewed by the Office of Management and Budget (OMB). Nevertheless,
TSA has reviewed this rulemaking and concluded that there will not be
any significant economic impact.
2. This rulemaking would not have a significant impact on a
substantial number of small entities.
3. This rulemaking would not constitute a barrier to international
trade.
4. This rulemaking does not impose an unfunded mandate on state,
local, or tribal governments, or on the private sector.
These analyses, available in the docket, are summarized below.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) of 1980 requires that agencies
perform a review to determine whether a proposed or final rule will
have a significant economic impact on a substantial number of small
entities. If the determination is that it will, the agency must prepare
a regulatory flexibility analysis as described in the RFA. For purposes
of the RFA, small entities include small businesses, not-for-profit
organizations, and small governmental jurisdictions. Individuals and
States are not included in the definition of a small entity.
This final rule exempts records in the Secure Flight Records system
of records from certain provisions of the Privacy Act. TSA certifies
that this rulemaking will not have a significant economic impact on a
substantial number of small entities. Further, the exemptions to the
Privacy Act apply to individuals, and individuals are not covered
entities under the RFA.

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.

Executive Order 13132, Federalism

TSA has analyzed this final rule under the principles and criteria
of Executive Order 13132, Federalism. We determined that this action
will not have a substantial direct effect on the States, or 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, does not have federalism implications.

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.

Energy Impact

The energy impact of the 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). We have determined that this rulemaking is
not a major regulatory action under the provisions of the EPCA.

List of Subjects in 49 CFR Part 1507

Privacy.

The Amendments

0
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 ACT-EXEMPTIONS

0
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).

0
2. Add a new paragraph (k) to Sec. 1507.3 to read as follows:

Sec. 1507.3 Exemptions.

* * * * *
(k) Secure Flight Records. (1) Secure Flight Records (DHS/TSA 019)
enables TSA to maintain a system of records related to watch list
matching applied to air passengers and to non-traveling individuals
authorized to enter an airport sterile area. Pursuant to 5 U.S.C.
552a(j)(2) and (k)(2), TSA is claiming the following exemptions for
certain records within the Secure Flight Records system: 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G)
through (I), (5), and (8); (f), and (g).
(2) In addition to records under the control of TSA, the Secure
Flight system of records may include records originating from systems
of records of other law enforcement and intelligence agencies which may
be exempt from certain provisions of the Privacy Act. However, TSA does
not assert exemption to any provisions of the Privacy Act with respect
to information submitted by or on behalf of individual passengers or
non-travelers in the course of making a reservation or seeking access
to a secured area under the Secure Flight program.
(3) To the extent the Secure Flight system contains records
originating from other systems of records, TSA will rely on the
exemptions claimed for those records in the originating system of
records. Exemptions for certain records within the Secure Flight
Records system from particular subsections of the Privacy Act are
justified for the following reasons:
(i) From subsection (c)(3) (Accounting for Disclosures) because
giving a record subject access to the accounting of disclosures from
records concerning him or her 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

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efforts on the part of the recipient agency because the individual who
is the subject of the record would learn of third agency investigative
interests and could take steps to evade detection or apprehension.
Disclosure of the accounting also could reveal the details of watch
list matching measures under the Secure Flight program, as well as
capabilities and vulnerabilities of the watch list matching process,
the release of which could permit an individual to evade future
detection and thereby impede efforts to ensure transportation security.
(ii) From subsection (c)(4) because portions of this system are
exempt from the access and amendment provisions of subsection (d).
(iii) From subsections (d)(1), (2), (3), and (4) because these
provisions concern individual access to and amendment of certain
records contained in this system, including law enforcement
counterterrorism, investigatory and intelligence records. Compliance
with these provisions could alert the subject of an investigation of
the fact and nature of the investigation, and/or the investigative
interest of intelligence or law enforcement agencies; compromise
sensitive information related to 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; 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, law enforcement, or intelligence investigations and
analysis activities and impose an impossible administrative burden by
requiring investigations, analyses, and reports to be continuously
reinvestigated and revised.
(iv) From subsection (e)(1) because it is not always possible for
TSA or other agencies to know in advance what information is both
relevant and necessary for it to complete an identity comparison
between aviation passengers or certain non-travelers and a known or
suspected terrorist. In addition, because TSA and other agencies 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.
(v) From subsection (e)(2) because application of this provision
could present a serious impediment to counterterrorism, law
enforcement, or intelligence 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, law enforcement,
or intelligence 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.
(vi) From subsection (e)(3), to the extent that this subsection is
interpreted to require TSA to provide notice to an individual if TSA or
another agency receives or collects information about that individual
during an investigation or from a third party. Should the subsection be
so interpreted, exemption from this provision is necessary to avoid
impeding counterterrorism, law enforcement, or intelligence 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.
(vii) From subsections (e)(4)(G) and (H) (Agency Requirements) and
(f) (Agency Rules), because this system is exempt from the access
provisions of 5 U.S.C. 552a(d).
(viii) From subsection (e)(5) because many of the records in this
system coming from other system of records are derived from other
domestic and foreign agency record systems and therefore it is not
possible for TSA to ensure their compliance with this provision,
however, TSA has implemented internal quality assurance procedures to
ensure that data used in the watch list matching process is as
thorough, accurate, and current as possible. In addition, 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 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. However, TSA has implemented internal quality
assurance procedures to ensure that the data used in the watch list
matching process is as thorough, accurate, and current as possible.
(ix) 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 TSA and other agencies and could
alert the subjects of counterterrorism, law enforcement, or
intelligence investigations to the fact of those investigations when
not previously known.
(x) From subsection (f) (Agency Rules) because portions of this
system are exempt from the access and amendment provisions of
subsection (d).
(xi) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act.

Issued in Arlington, Virginia, on November 2, 2007.
Kip Hawley,
Assistant Secretary, Transportation Security Administration.
John Kropf,
Deputy Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E7-21907 Filed 11-8-07; 8:45 am]

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