[Federal Register Volume 84, Number 238 (Wednesday, December 11, 2019)]
[Rules and Regulations]
[Pages 67671-67673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26668]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 10
[Docket No. OST-2016-0028]
RIN 2105-AE76
Maintenance of and Access to Records Pertaining to Individuals
AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: On February 6, 2019, the U.S. Department of Transportation
(DOT) issued a notice of proposed rulemaking requesting comment on
proposed exemptions from the Privacy Act's requirement that individuals
have access to certain records maintained within a system of records
for the Department's Aviation Consumer Complaint Application Online
System. This exemption is necessary to avoid disclosure of aviation
compliance inquiry techniques, confidential information provided by air
carriers and third parties, and prevent unwarranted invasions of
individual privacy. This exemption also supports the Department's
ability to obtain information relevant to resolving concerns related to
an air carrier's compliance with the Department's consumer protection
and civil rights requirements. The Department received two comments on
this proposed rule. Upon consideration of the comments, the Department
will finalize the proposed rule without change.
DATES: This final rule is effective December 11, 2019.
ADDRESSES: You may access docket number DOT-OST-2016-0028 by any of the
following methods:
Federal Rulemaking Portal: Go to https://www.regulations.gov.
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.
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.
FOR FURTHER INFORMATION CONTACT: Claire Barrett, Departmental Chief
Privacy Officer, Office of the Chief Information Officer, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC
20590 or [email protected] or (202) 366-8135.
[[Page 67672]]
SUPPLEMENTARY INFORMATION: 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 system of records notice 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 exempts records in the Aviation Consumer Complaint
Application Online System from subsection (d) (Access to Records) of
the Privacy Act to the extent that records consist of investigatory
material compiled for law enforcement purposes in accordance with 5
U.S.C. 552a(k)(2).
DOT received two comments on the proposal. These comments were
submitted by law students. One commenter, commenting anonymously,
stated that she was commenting for a class assignment. While the
commenter stated that he or she did not feel qualified to comment, the
commenter expressed concern that the Department is tracking individuals
who issue complaints against airlines. The commenter also asks that the
Department ensure that any person who submits a complaint have access
to the file in accordance with the Freedom of Information Act.
DOT's Office of the Assistant General Counsel for Aviation
Enforcement and Proceedings monitors compliance with and investigates
violations of Federal law and regulations related to aviation economic,
consumer protection, and civil rights requirements. The Aviation
Consumer Protection Division is housed within this Office and is tasked
with receiving complaints from the public regarding air carrier
consumer issues, including complaints of unlawful discriminatory
treatment in air travel by airline employees or contractors, and
verifying air carriers' compliance with aviation consumer protection
requirements. DOT maintains information about individuals who submit
complaints so that DOT can appropriately address the complaint,
including working with the complainant and air carrier to resolve the
issue identified in the complaint and to follow up with the complainant
for additional information or to inform the complainant of DOT's
analysis of the issue. DOT does not ``track'' persons who issue
complaints against airlines, but rather, uses information about the
complainant to assist the complainant to resolve the complaint.
Individuals who wish to complain, but are not seeking DOT assistance to
address their complaint with the air carrier, may submit complaints
anonymously. As the commentator noted, individuals may file a request
under the Freedom of Information Act to obtain access to information
about them that is maintained in this system of records.
The second comment is from two law students, who also wrote to
express concern with the proposed rule. These students stated that they
are concerned that the proposed exemption from the Privacy Act's access
requirement creates an impediment to potential litigants right to
discovery under the Federal Rules of Civil Procedure, and that DOT's
discretion to disclose information notwithstanding the Privacy Act
exemption does not assuage their concern. The commenters state further
that the rule does not serve DOT's interest in supporting DOT's ability
to conduct investigations, and undermines the public's right of access
to information. The commenters are concerned that the proposal would
preclude individuals from being informed consumers by shielding from
the public information about patterns of impermissible behavior by
airlines.
The Privacy Act, among other things, requires that Federal agencies
provide individuals with access to information about themselves that is
maintained by the agency in a system of records. Individuals who
request information about themselves maintained in a system of records
are sometimes referred to as ``first party requesters.'' Under the
Privacy Act, a system of records is information about an individual
that includes that individuals name or other identifying particular
assigned to the individual, such as a photograph, that is retrieved by
the agency by that individual's name or other identifier assigned to
the individual.
The Aviation Consumer Complaint Application Online System is a
system of records that consists primarily of information provided by
the individual who submitted a complaint. It also includes information
provided by the air carrier identified in the consumer complaint that
is provided to DOT as part of DOT's efforts to help assess and resolve
the consumer complaint. In the course of responding to a consumer
complaint, air carriers sometimes provide DOT with information that can
include identifying information about the air carrier's employees and
third parties, or confidential business information. Air carriers
provide this information to the DOT voluntarily, and it aids DOT's
efforts to resolve particular consumer complaints. If DOT could not
protect from a first party requester the identities of third parties or
an air carrier's confidential business information provided by an air
carrier in the course of responding to a complaint, it would impair
DOT's ability to adequately assess and respond to a consumer complaint
on behalf of the consumer. Notwithstanding the proposed exemption from
the Privacy Act, first party requesters are still entitled to
information maintained in this system of records to the full extent
required by the Freedom of Information Act. With respect to the
commenter's concern about discovery for litigation purposes, this
proposed exemption does not limit a private litigant's ability to seek
discovery directly from an air carrier. Nor does it restrict access to
information from this system, or other agency records that are not part
of this system of records, under the Freedom of Information Act. This
exemption also does not restrict access that is otherwise provided for
under the Privacy Act, which includes disclosures pursuant to court
order.
The commenters express particular concern about information
demonstrating a pattern of unlawful conduct by an air carrier. The
Department agrees that this is valuable information for consumers and
publishes information about consumer complaints and other airline
compliance requirements, such as flight delays; mishandled baggage,
wheelchairs, and scooters; oversales; reports of lost, injured or death
of animals in air transportation; and customer service reports to the
Transportation Security Administration, on its website at https://www.transportation.gov/individuals/aviation-consumer-protection/air-travel-consumer-reports. DOT also posts all of the enforcement orders
the Office of the Assistant General Counsel for Aviation Enforcement
and Proceedings has issued against air carriers on its website at
https://transportation.gov/airconsumer/enforcementorders. The public
may obtain additional information about air carriers under the Freedom
of Information Act.
After consideration of the comments, the Department will finalize
the proposed rule without change. This rule is necessary to protect the
identity of confidential informants and confidential business
information provided by air carriers, and protect the DOT's
investigatory techniques. DOT will continue to provide individuals with
access to information maintained in this system under the Freedom of
Information Act, and under the Privacy Act, except to the extent that
disclosure would reveal confidential informants, confidential business
information, or reveal DOT's investigatory techniques.
[[Page 67673]]
Regulatory Analysis and Notices
A. Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
DOT considered the impact of this rulemaking action under Executive
Orders 12866 and 13563 (January 18, 2011, ``Improving Regulation and
Regulatory Review''), and DOT Order 2100.6, ``Policies and Procedures
for Rulemakings.'' DOT has determined that this action will not
constitute a significant regulatory action within the meaning of
Executive Order 12866 and within the meaning of DOT regulatory policies
and procedures. This rulemaking has not been reviewed by the Office of
Management and Budget. This rulemaking will not result in any costs.
Since these records would be exempt from certain provisions of the
Privacy Act, DOT would not have to expend any funds in order to
administer those aspects of the Act.
B. Regulatory Flexibility Act
DOT has evaluated the effect these changes will have on small
entities and does not believe that this rulemaking will 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 or that is
already publicly available. Therefore, I hereby certify that this rule
will not have a significant economic impact on a substantial number of
small entities.
C. National Environmental Policy Act
DOT has analyzed the environmental impacts of this final 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 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 amend the
Appendix to DOT's Privacy Act regulations. The Department does not
anticipate any environmental impacts and there are no extraordinary
circumstances present in connection with this rulemaking.
D. Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, Federalism, dated August
4, 1999, and it has been determined that it will 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 (Consultation and Coordination With Indian
Tribal Governments)
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 would not
have any effect 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. 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
final rule does not impose Federal mandates on any State, local, or
tribal governments; or the private sector.
H. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
This rule is not an Executive Order 13771 regulatory action because
this rule is not significant under E.O. 12866.
I. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of lnformation and Regulatory Affairs designated this rule
as not a 'major rule', as defined by 5 U.S.C. 804(2).
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:
PART 10--MAINTENANCE OF AND ACCESS TO RECORDS PERTAINING TO
INDIVIDUALS
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 Part II of appendix A by adding section H to read as follows:
Appendix A to Part 10--Exemptions
Part II. Specific Exemptions
* * * * *
H. The following systems of records are exempt from subsection
(d) (Access to Records) of the Privacy Act, 5 U.S.C. 552a, to the
extent that they contain investigatory material compiled for law
enforcement purposes, in accordance with 5 U.S.C. 552a(k)(2):
1. Aviation Consumer Complaint Appropriation System, maintained
by the Office of the Assistant General Counsel for Aviation
Enforcement and Proceedings in the Office of the Secretary (DOT/OST
102).
This exemption is justified because granting an individual
access to investigatory records could interfere with the overall law
enforcement process by revealing a sensitive investigative
technique, or confidential sources or information.
Issued in Washington, DC, on December 4, 2019.
Elaine L. Chao,
Secretary.
[FR Doc. 2019-26668 Filed 12-10-19; 8:45 am]
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