[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 privacy@dot.gov 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]
 BILLING CODE 4910-9X-P


