Federal Register 2014-01-02: Vol 79 Iss 1

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FEDERAL REGISTER
Vol. 79 Thursday,
No. 1 January 2, 2014
Pages 1-324
OFFICE OF THE FEDERAL REGISTER
II Federal Register/Vol. 79, No. 1/Thursday, January 2, 2014
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Ill
Contents
Federal Register
Vol. 79, No. 1
Thursday, January 2, 2014
Agency for International Development Pennsylvania; Approval of the 2002 Base Year Emissions
NOTICES Inventory for the Liberty-Clairton Nonattainment
Agency Information Collection Activities; Proposals, Area, 54-57
Submissions, and Approvals, 92 Texas; Attainment Demonstration for the Houston-
Galveston-Brazoria 1997 8-hour Ozone
Agriculture Department Nonattainment Area, 57-61
See Food and Nutrition Service Texas; Reasonable Further Progress Plan, Contingency
Measures, Motor Vehicle Emission Budgets, etc., 51-
Army Department
54
NOTICES National Oil and Hazardous Substances Pollution
Privacy Act; Systems of Records, 117
Contingency Plan; National Priorities List:
Partial Deletion of the El Toro Marine Corps Air Station
Centers for Medicare & Medicaid Services
Superfund Site; Correction, 61
RULES
Medicare Program:
Hospital Inpatient Prospective Payment Systems for Export-Import Bank
Acute Care Hospitals, etc.; Correction, 61-63 NOTICES
Prospective Payment System and Consolidated Billing for Agency Information Collection Activities; Proposals,
Skilled Nursing Facilities for FY 2014; Correction, Submissions, and Approvals:
63-64 Application for Special Buyer Credit Limit Under the
NOTICES Multi-Buyer Export Credit Insurance Policy, 133-134
Agency Information Collection Activities; Proposals,
Submissions, and Approvals, 140-141
Federal Aviation Administration
Commerce Department RULES
See Industry and Security Bureau Policy Change:
See International Trade Administration Use of Approved Training Devices, 20-22
See National Oceanic and Atmospheric Administration PROPOSED RULES
Airworthiness Directives:
Defense Department Bombardier, Inc. Airplanes, 70-74, 76-78
See Army Department Eurocopter France Helicopters, 74-76
See Navy Department The Boeing Company Airplanes, 65-70
NOTICES NOTICES
Agency Information Collection Activities; Proposals, Petitions for Exemption; Summary, 180-181
Submissions, and Approvals, 113-115
Agency Information Collection Activities; Proposals, Federal Energy Regulatory Commission
Submissions, and Approvals:
NOTICES
Termination Settlement Proposal Forms-FAR, 139-140
Agency Information Collection Activities; Proposals,
Housing Price Inflation Adjustments, 115
Submissions, and Approvals, 118-120
Privacy Act; Systems of Records, 115-117
Applications:
Antrim County, 120-121
Drug Enforcement Administration
Antrim Treatment Trust, 121-122
NOTICES
Combined Filings, 122-131
Importers of Controlled Substances; Applications:
Filings:
Hospira, 151
North American Electric Reliability Corp., Western
Manufacturers of Controlled Substances; Applications:
Electricity Coordinating Council, 131
American Radiolabeled Chemicals, Inc., 151
Initial Market-Based Rate Filings Including Requests for
Manufacturers of Controlled Substances; Registrations:
Blanket Section 204 Authorization:
Boehringer Ingelheim Chemicals, Inc., 151
Energy Discounters, LLC, 133
Energy Department Fortistar North Tonawanda Inc., 132
See Federal Energy Regulatory Commission Macho Springs Solar, LLC, 132
SG2 Imperial Valley, LLC, 131-132
RULES
Inflation Adjustment of Civil Monetary Penalties, 16-20 Utility Expense Reduction, LLC, 132-133
Environmental Protection Agency
Federal Highway Administration
RULES
NOTICES
Air Quality State Implementation Plans; Approvals and
Outdoor Advertising Federal/State Agreements, 181
Promulgations:
North Carolina; Non-interference Demonstration for
Removal of Federal Low-Reid Vapor Pressure Federal Maritime Commission
Requirement for the Raleigh-Durham-Chapel Hill NOTICES
Area, 47-51 Agreements Filed, 134
IV Federal Register/Vol. 79, No. 1/Thursday, January 2, 2014/Contents
Federal Trade Commission Interior Department
NOTICES See Fish and Wildlife Service
Analysis of Agreement Containing Consent Orders To Aid See Land Management Bureau
Public Comment:
Fidelity National Financial, Inc./Lender Processing Internal Revenue Service
Services, Inc., 134-139
NOTICES
Agency Information Collection Activities; Proposals,
Federal Transit Administration
Submissions, and Approvals, 206-207
NOTICES
Limitation on Claims Against Proposed Public
International Trade Administration
Transportation Projects, 181-182
NOTICES
Fish and Wildlife Service Antidumping Duty Administrative Reviews; Results,
Extensions, Amendments, etc.:
NOTICES
Environmental Assessment; Availability, etc.: Aluminum Extrusions From the People’s Republic of
Associated Eagle Conservation Plan for the Great Bay China, 96-101
Wind Energy Project; Somerset County, MD, 143-145 Citric Acid and Certain Citrate Salts From the People’s
Republic of China, 101-103
Food and Nutrition Service Pure Magnesium From the People’s Republic of China,
RULES 94-96
Automated Data Processing and Information Retrieval Antidumping or Counterv^ailing Duty Orders, Findings, or
System Requirements: Suspended Investigations:
System Testing, 5-16 Advance Notification of Sunset Reviews, 105-106
NOTICES Opportunity To Request Administrative Review, 103-105
Agency Information Collection Activities; Proposals, Countervailing Duty Administrative Reviews; Results,
Submissions, and Approvals: Extensions, Amendments, etc.:
Summer Food Service Program, 92-94 Aluminum Extrusions From the People’s Republic of
China, 106-108
General Services Administration Citric Acid and Certain Citrate Salts From the People’s
NOTICES Republic of China, 108-110
Agency Information Collection Activities; Proposals, Five-Year Sunset Reviews, 110-112
Submissions, and Approvals:
Termination Settlement Proposal Forms-FAR, 139-140 International Trade Commission
Government Ethics Office NOTICES
Investigations; Determinations, Modifications, Rulings, etc.:
RULES
Small Diameter Graphite Electrodes From China; Five-
Post-Employment Conflict of Interest:
Year Review, 145-148
Exempted Senior Employee Positions, 1-2
Investigations; Terminations, Modifications and Rulings,
Health and Human Services Department etc.:
Ball Bearings and Parts Thereof From Japan and the
See Centers for Medicare & Medicaid Services
United Kingdom; Institution of Five-Year Reviews,
See National Institutes of Health
148-150
See Substance Abuse and Mental Health Services
Administration
Judicial Conference of the United States
PROPOSED RULES
Administrative Simplification: NOTICES
Certification of Compliance for Health Plans, 298-324 Meetings:
Judicial Conference Committee on Rules of Practice and
Homeland Security Department Procedure, 150
RULES
Privacy Act: Justice Department
TSA PreCheck Application Program System of Records, See Drug Enforcement Administration
2-5 See Prisons Bureau
Industry and Security Bureau
Land Management Bureau
RULES
Control of Military Training Equipment, Energetic NOTICES
Meetings:
Materials, Personal Protective Equipment, Shelters,
State of Arizona Resource Advisory Council, 145
Articles Related to Launch Vehicles, Missiles, Rockets,
Military Explosives, and Related Items, 264-295
National Aeronautics and Space Administration
Export Administration Regulations:
Military Vehicles, Vessels of War, etc.. That No Longer NOTICES
Warrant Control Under the US Munitions List; Agency Information Collection Activities; Proposals,
Correction, 22-26 Submissions, and Approvals:
Termination Settlement Proposal Forms-FAR, 139-140
NOTICES
Meetings:
Information Systems Technical Advisory Committee, 94 National Archives and Records Administration
Sensors and Instrumentation Technical Advisory NOTICES
Committee, 94 Records Schedules, 151-152
Federal Register/Vol. 79, No. 1/Thursday, January 2, 2014/Contents V
National Highway Traffic Safety Administration Social Security Administration
NOTICES NOTICES
Importation Eligibility; Petitions: Rate for Assessment on Direct Payment of Fees to
Nonconforming 1994 and 1997 Westfalia 14 Foot Double Representatives in 2014, 180
Axle Cargo Trailers, 182-183
State Department
National Institutes of Health RULES
International Traffic in Arms Regulations:
NOTICES
Continued Implementation of Export Control Reform;
Agency Information Collection Activities; Proposals,
Correction, 26-34
Submissions, and Approvals:
Third Rule Implementing Export Control Reform, 34-47
Cardiovascular Health and Needs Assessment in
Washington, DC; etc., 141-142
Substance Abuse and Mental Health Services
Administration
National Oceanic and Atmospheric Administration
PROPOSED RULES NOTICES
Fisheries of the Caribbean, Gulf of Mexico, and South Facilities Meeting Minimum Standards To Engage in Urine
Atlantic: Drug Testing for Federal Agencies, 142-143
Revisions to Dealer Permitting and Reporting
Requirements for Species Managed by the Gulf of Transportation Department
Mexico and South Atlantic Fishery Management See Federal Aviation Administration
Councils, 81-91 See Federal Highway Administration
NOTICES See Federal Transit Administration
Changes in the Development and Distribution of Nautical See National Highway Traffic Safety Administration
Charts and Publications, 112
Meetings: Treasury Department
Science Advisory Board, 112-113 See Internal Revenue Service
NOTICES
Navy Department Privacy Act; Systems of Records, 183-206, 210-261
NOTICES
Performance Review Board Membership, 117-118
Separate Parts In This Issue
Postal Regulatory Commission
Part II
NOTICES
Treasury Department, 210-261
New Postal Products, 153-154
Part III
Prisons Bureau Commerce Department, Industry and Security Bureau, 264-
PROPOSED RULES 295
Transfer of Offenders to Foreign Countries, 78-81
Part IV
Securities and Exchange Commission Health and Human Services Department, 298-324
NOTICES
Self-Regulatory Organizations; Proposed Rule Changes:
BOX Options Exchange, LLC, 163-169 Reader Aids
Chicago Board Options Exchange, Inc., 169-173 Consult the Reader Aids section at the end of this page for
NASDAQ Stock Market LLC, 162-163 phone numbers, online resources, finding aids, reminders,
NYSE Area, Inc., 154-161 and notice of recently enacted public laws.
The NASDAQ Stock Market LLC, 173-179
To subscribe to the Federal Register Table of Contents
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NOTICES archives, FEDREGTOC-L, Join or leave the list (or change
Interest Rates, 180 settings); then follow the instructions.
VI Federal Register/Vol. 79, No. 1/Thursday, January 2, 2014/Contents
CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the
Reader Aids section at the end of this issue.
5 CFR
2641.1
6 CFR
5.2
7 CFR
271 .5
272 .5
274.5
276 .5
277 .5
10 CFR
218.16
431.16
490.16
601.16
820.16
824.16
851.16
1013.16
1017.16
1050.16
14 CFR
61.20
141.20
Proposed Rules:
39 (5 documents).65, 70, 72,
74, 76
15 CFR
740 (2 documents).22, 264
742.22
744.22
770.22
772.22
774 (2 documents).22, 264
22 CFR
120.26
121 (2 documents).26, 34
123 (2 documents).26, 34
124 (2 documents).26, 34
125 .34
126 .26
28 CFR
Proposed Rules:
527.78
40 CFR
52 (4 documents).47, 51, 54,
57
300.61
42 CFR
412 .61
413 .63
424.63
482.61
485.61
489.61
45 CFR
Proposed Rules:
160.298
162.298
50 CFR
Proposed Rules:
622.81
1
Rules and Regulations
Federal Register
Vol. 79, No. 1
Thursday, January 2, 2014
This section of the FEDERAL REGISTER who was employed in a position for after [the employee’s] termination from
contains regulatory documents having general which the rate of pay is specified in or the position.” See 5 CFR 2641.301(j)(4)
applicability and legal effect, most of which fixed according to the Executive (emphasis added).
are keyed to and codified in the Code of Schedule, in a position for which the In 1991, the Secmities and Exchange
Federal Regulations, which is published under rate of basic pay is equal to or greater Commission (SEC) requested, and was
50 titles pursuant to 44 U.S.C. 1510.
than 86.5 percent of the rate of basic pay granted, exemptions for the positions of
The Code of Federal Regulations is sold by payable for level II of the Executive Solicitor, Office of the General Counsel
the Superintendent of Documents. Prices of Schedule, or in a position which is held and Chief Litigation Counsel, Division
new books are listed in the first FEDERAL by an active duty commissioned officer of Enforcement. In 2003, the SEC
REGISTER issue of each week. of the uniformed services who is serving requested and was granted additional
in a grade or rank for which the pay exemptions for the position of Deputy
grade is 0-7 or above. Chief Litigation Counsel, Division of
OFFICE OF GOVERNMENT ETHICS The representational bar of 18 U.S.C. Enforcement, SK-17 Positions, SK-16
207(c) usually applies to all senior and lower-graded SK positions
5 CFR Part 2641
positions. However, 18 U.S.C. supervised by employees in SK-17
RIN 3209-AA14 207(c)(2)(C) provides that the Director of positions, and SK-16 and lower-graded
OGE may exempt any position or SK positions not supervised by
Post-Employment Conflict of Interest category of positions from the one-year employees in SK-17 positions. These
Regulations; Exempted Senior prohibition under 18 U.S.C. 207(c) (and exemptions were predicated on
Employee Positions consequently the prohibition of 18 recruitment and retention
U.S.C. 207(f)), if the Director considerations resulting from the
agency: Office of Government Ethics determines, after a review requested by implementation of a new pay system
(OGE).
the department or agency concerned, that converted many GS-15 positions
ACTION: Final rule; revocation of that the imposition of the restrictions into “senior employee” positions above
exemptions. with respect to the particular position or the statutory pay threshold.
positions would create an undue Pursuant to the procedures prescribed
SUMMARY: The Office of Government
hardship on the department or agency in 5 CFR 2641.301(j), in June 2013, the
Ethics is issuing this final rule to
in obtaining qualified personnel to fill SEC requested that the Director of OGE
provide notice of the revocation of
such position or positions, and that revoke the exemptions for these
certain regulatory exemptions of senior
granting the waiver would not create the positions. In support of its request, the
employee positions at the Securities and
potential for use of undue influence or SEC explained that the original bases for
Exchange Commission from certain
unfair advantage. these exemptions no longer existed. In
criminal post-employment restrictions.
The Director of OGE regularly reviews particular, the SEC indicated that it was
DATES: This rule is effective without these position exemptions and, in no longer experiencing undue hardship
further notice on April 2, 2014. consultation with the department or in obtaining qualified personnel to fill
FOR FURTHER INFORMATION CONTACT: agency concerned, makes such the covered positions. Furthermore, the
Christopher J. Swartz, Assistant additions and deletions as are SEC indicated that discontinuing the
Counsel, Ethics Law & Policy Branch, necessary. As specified in 5 CFR exemptions would create parity between
Office of Government Ethics; telephone: [phone]())(3)(ii), the Director must SEC employees occupying the covered
202-482-9300; TTY: 800-877-8339; respond to exemption and revocation positions and employees in similar
FAX: [phone]. requests from agency ethics officials and positions at other financial regulatory
SUPPLEMENTARY INFORMATION: maintain a compilation of all exempted agencies who are currently subject to
positions or categories of positions. the one year cooling-off prohibitions of
1. Substantive Discussion: Background
Once an exemption has been granted, 18 U.S.C. 207(c) and (f). For these
and Revocation of Exemptions for
the Designated Agency Ethics Official at reasons, the SEC no longer believed
Certain Positions
the relevant agency may, at any time, these exemptions to be necessary or
18 U.S.C. 207(c) prohibits a former request that the exemption be revoked. desirable. Therefore, pursuant to 5 CFR
“senior employee” for a period of one See 5 CFR 2641.301(j)(3)(i). Under 5 2641.301(j), OGE granted SEC’s request,
year from knowingly making, with the CFR 2641.301(j)(4), the revocation of a and on October 3, 2013, published
intent to influence, any communication waiver becomes effective 90 days after notice in the Federal Register, at 78 FR
to or appearance before an employee of OGE has published notice of the 61153, revoking those exemptions and
the department or agency in which he revocation in the Federal Register. If a amending the listing of exempted
served in any capacity dming the one- revocation is granted, all employees positions maintained by OGE in
year period prior to termination from occupying positions covered by the Appendix A to part 2641 of title 5.
senior service, if that communication or exemption will become subject to the Following publication, but prior to
appearance is made on behalf of any prohibitions of 18 U.S.C. 207(c) and (f) the effective date, the SEC requested
other person, except the United States. as of the effective date. However, any that OGE withdraw and rescind its
For purposes of 18 U.S.C. 207(c), a “[ijndividual who formerly served in a publication of October 3, 2013, to allow
“senior employee” includes, inter alia, position for which a waiver of the SEC more time to effectively educate
any employee (other than an individual restrictions was applicable will not affected employees before the
covered by the “very senior employee” become subject to 18 U.S.C. 207(c) (or exemption revocation took effect. OGE
one-year restriction in 18 U.S.C. 207(d)) section 207(f)) if the waiver is revoked agreed, and on November 25, 2013, OGE
2 Federal Register/Vol. 79, No. 1/Thursday, January 2, 2014/Rules and Regulations
withdrew and rescinded the notice of chapter 6) that this final rule would not 12674, 54 FR 15159, 3 CFR, 1989 Comp., p.
revocation and final rule amending have a significant economic impact on 215, as modified by E.O. 12731, 55 FR 42547,
Appendix A to part 2641 of title 5. See a substantial number of small entities 3 CFR, 1990 Comp., p. 306.
78 FR 70191. In the withdrawal notice, because it primarily affects current and Appendix A to Part 2641 [Amended]
OGE indicated that it planned to former Federal executive branch
republish this notice and final rule in employees. * ■ 2. Appendix A to part 2641 is
January 2014. amended by removing the listing for the
Paperwork Reduction Act
Accordingly, OGE is now Securities and Exchange Commission
republishing that notice and final rule. The Paperwork Reduction Act (44 (and all positions thereunder).
OGE hereby gives notice that the above- U.S.C. chapter 35) does not apply IFR Doc. 2013-30668 Filed 12-31-13; 8:45 am]
referenced post-employment because this regulation does not contain BILLING CODE 6345-03-P
exemptions, granted on October 29, information collection requirements that
1991; November 10, 2003; and require approval of the Office of
December 4, 2003, respectively, will Management and Budget. DEPARTMENT OF HOMELAND
expire and are revoked effective on Unfunded Mandates Reform Act SECURITY
April 2, 2014. As of the effective date,
For purposes of the Unfunded
a person occupying any one of these Office of the Secretary
Mandates Reform Act of 1995 (2 U.S.C.
positions will become subject to the
chapter 5, subchapter II), this final rule
post-employment restrictions of 18 6 CFR Part 5
would not significantly or uniquely
U.S.C. 207(c) and (f) if the rate of basic
affect small governments and will not [Docket No. DHS-2013-0041]
pay for the position is equal to or greater
result in increased expenditures by
than 86.5 percent of the rate of basic pay State, local, and tribal governments, in Privacy Act of 1974: Implementation of
payable for level II of the Executive the aggregate, or by the private sector, of Exemptions; Department of Homeland
Schedule. $100 million or more (as adjusted for Security Transportation Security
As stated in 5 CFR 2641.301(j)(3)(ii), inflation) in any one year. Administration, DHS/TSA-021, TSA
the Director of OGE is required to Pre/T^ Appiication Program System
“maintain a listing of positions or Executive Order 12866 of Records
categories of positions in Appendix A to In promulgating this final rule, the
[5 CFR part 2641] for which the 18 Office of Government Ethics has AGENCY: Department of Homeland
U.S.C. 207(c) restriction has been adhered to the regulatory philosophy Security.
waived.” As such. Appendix A of this and the applicable principles of ACTION: Final rule.
part is being amended to remove regulation set forth in section 1 of
references to those SEC positions that Executive Order 12866, Regulatory SUMMARY: The Department of Homeland
Security is issuing a final rule to amend
are no longer exempt from the Planning and Review. This rule has not
its regulations to exempt portions of a
restrictions of 18 U.S.C. 207(c) and (f). been reviewed by the Office of
newly established system of records
These positions include: Solicitor, Management and Budget under that
titled, “Department of Homeland
Office of General Counsel; Chief Executive order since it is not
Litigation Counsel, Division of "significant” under the order. Security/Transportation Security
Enforcement; Deputy Chief Litigation Administration-021, TSA Pre/™
Executive Order 12988 Application Program System of
Counsel, Division of Enforcement; SK-
17 Positions; SK-16 and lower-graded As Director of the Office of Records,” from one or more provisions
SK positions supervised by employees Government Ethics, I have reviewed this of the Privacy Act because of criminal,
in SK-17 positions; and SK-16 and final rule in light of section 3 of civil, and administrative enforcement
lower-graded SK positions not Executive Order 12988, Civil Justice requirements.
supervised by employees in SK-17 Reform, and certify that it meets the DATES: Effective January 2, 2014.
positions. applicable standards provided therein. FOR FURTHER INFORMATION CONTACT: For
II. Matters of Regulatory Procedure List of Subjects in 5 CFR Part 2641 general questions please contact: Peter
Pietra, TSA Privacy Officer, TSA-036,
Administrative Procedure Act Conflict of interests. Government 601 South 12th Street, Arlington, VA
employees.
Pursuant to the Administrative 20598-6036; or email at TSAprivacy®
Procedure Act (APA), 5 U.S.C. 553(b), Approved: December 18, 2013. dhs.gov. For privacy questions, please
OGE finds good cause to waive the Walter M. Shaub, Jr., contact: Karen L. Neuman, (202) 343-
notice-and-comment requirements of Director, Office of Government Ethics. 1717, Chief Privacy Officer, Privacy
the APA, as the codification of OGE’s Accordingly, for the reasons set forth Office, Department of Homeland
revocation of exempted positions is in the preamble, the Office of Security, Washington, DC 20528.
technical in nature, and it is important Government Ethics is amending part SUPPLEMENTARY INFORMATION:
and in the public interest that the 2641 of subchapter B of chapter XVI of Background
codification of OGE’s revocation of title 5 of the Code of Federal
exempted positions be published in the Regulations as follows: The Department of Homeland
Federal Register as promptly as Security (DHS)/Transportation Security
possible. For these reasons, OGE is PART 2641—POST-EMPLOYEMENT Administration (TSA) published a
issuing this regulation as a final rule CONFLICT OF INTEREST Notice of Proposed Rulemaking (NPRM)
effective 90 days after publication. RESTRICTIONS in the Federal Register, 78 FR 55657
(Sept. 11, 2013), proposing to exempt
Regulatory Flexibility Act ■ 1. The authority citation for part 2641 portions of the newly established “DHS/
As Director of the Office of continues to read as follows: TSA-021, TSA Pre/™ Application
Government Ethics, I certify under the Authority: 5 U.S.C. App. (Ethics in Program System of Records” from one
Regulatory Flexibility Act (5 U.S.C. Government Act of 1978); 18 U.S.C. 207; E.O. or more provisions of the Privacy Act
Federal Register/Vol. 79, No. 1/Thursday, January 2, 2014/Rules and Regulations 3
because of criminal, civil, and DHS/TSA received one comment from protect the identities of witnesses and
administrative enforcement a private individual recommending that informants. This commenter stated that
requirements. The DHS/TSA-021 TSA foreign service employees and their such post-investigation disclosures
Pre/TM Application Program System of families be automatically included this would provide individuals with the
Records Notice (SORN) was published program. The comment misapprehends ability to address potential inaccuracies
in the Federal Register, 78 FR 55274 the program for which the NPRM was in these records, and noted that the TSA
(Sept. 10, 2013), and comments were published. The NPRM was published in Pre/™ Application Program will
invited on both the NPRM and SORN. association with the SORN for the TSA provide applicants an opportunity to
Pre/TM Application program, which is correct inaccurate or incomplete
Public Comments
designed to allow individuals to apply criminal records or immigration records.
DHS received 12 comments on the to be included in the program. As stated above, DHS will consider
NPRM and five comments on the SORN. Separately, DHS/TSA continues to requests on a case-by-case basis, and in
evaluate populations that may otherwise certain instances may waive applicable
NPRM
be eligible for TSA Pre/™ screening. exemptions and release material that
Several comments exceeded the scope DHS/TSA received one comment from otherwise would be withheld. However,
of the exemption rulemaking and chose a private individual concerned that certain information gathered in the
instead to comment on TSA security exemptions under the Privacy Act course of law enforcement or national
measures. DHS/TSA will not respond to would allow TSA to engage in security investigations or encounters,
those comments. discriminatory conduct based on race and created or recompiled from
DHS/TSA received a few comments and appearance, and that an individual information contained in other exempt
that objected to the proposal to claim whose application is denied would have systems of records, will continue to be
any exemptions from the Privacy Act for limited recourse because TSA would exempted from disclosure. Some of
the release of information collected not provide enough information. The these records would reveal investigative
pursuant to the SORN. As stated in the security threat assessment involves techniques, sensitive security
NPRM, no exemption will be asserted recurrent checks against law information, and classified information,
regarding information in the system that enforcement, immigration, and or permit the subjects of investigations
is submitted by a person if that person, intelligence databases. TSA does not to interfere with related investigations.
or his or her agent, seeks access to or make decisions regarding eligibility for Continuing to exempt these sensitive
amendment of such information. the TSA Pre/™ Application Program records from disclosure is consistent
However, this system may contain based on race or appearance. Eligibility with the intent and spirit of the Privacy
records or information created or for the TSA Pre/™ Application Act. This information contained in a
recompiled from information contained Program is within the sole discretion of document qualifying for exemption does
in other systems of records that are TSA, which will notify individuals who not lose its exempt status when
exempt from certain provisions of the are denied eligibility in writing of the recompiled in another record if the
Privacy Act, such as law enforcement or reasons for the denial. If initially purposes underlying the exemption of
national security investigation or deemed ineligible, applicants will have the original document pertain to the
encounter records, or terrorist screening an opportunity to correct cases of recompilation as well.
records. Disclosure of these records misidentification or inaccurate criminal While access under the Privacy Act
from other systems, as noted in the or immigration records. Individuals may be withheld under an appropriate
NPRM, could compromise investigatory whom TSA determines are ineligible for exemption, the DHS Traveler Redress
material compiled for law enforcement the TSA Pre/™ Application Program Inquiry Program (DHS TRIP) is a single
or national security purposes. DHS will will continue to be screened at airport point of contact for individuals who
examine each request on a case-by-case security checkpoints according to TSA have inquiries or seek resolution
basis and, after conferring with the standard screening protocols. regarding difficulties they experienced
DHS/TSA received one comment from during their travel screening at
appropriate component or agency, may
a public interest research center that transportation hubs, and has been used
waive applicable exemptions in
asserting Privacy Act exemptions by individuals whose names are the
appropriate circumstances and when it
contravenes the intent of the Privacy same or similar to those of individuals
would not appear to interfere with or
Act. DHS does not agree that asserting on watch lists. See http://www.dhs.gov/
adversely affect the investigatory
exemptions provided within the Privacy dhs-trip.
purposes of the systems from which the
Act contravenes the Privacy Act. As
information is recompiled or in which SORN
reflected in the 0MB Privacy Act
it is contained.^
Implementation Guidelines, “the DHS/TSA received five comments on
drafters of the Act recognized that the SORN. One commenter asked if TSA
’ The TSA Pre/'*'''’ Application Program performs application of all the requirements of Pre/™ Application Program applicants
checks that are very similar to those performed for
populations such as TSA Transportation Worker the Act to certain categories of records would be advised as to the reasons for
Identification Credential (TWIC) and Hazardous would have had undesirable and often a denial of that application. As
Material Endorsement (HME) programs. unacceptable effects upon agencies in explained in the SORN and NPRM, TSA
Accordingly, TSA proposed most of the same
the conduct of necessary public will notify applicants who are denied
Privacy Act exemptions for the TSA Pre/™
Application Program that are claimed for the business.” 40 FR 28948, 28971 (July 9, eligibility in writing of the reasons for
applicable System of Records Notice for the TWIC 1975). the denial. If initially deemed ineligible,
and HME programs. The Privacy Act exemptions The same commenter recognized the applicants will have an opportunity to
claimed from the Transportation Security Threat need to withhold information pursuant correct cases of misidentification or
Assessment System of Records strike the right
balance of permitting TWIC and HME applicants to to Privacy Act exemptions during the inaccurate criminal or immigration
correct errors or incomplete information in other period of the investigation, but also records.
systems of records that may affect their ability to stated that individuals should be able to Consistent with 28 CFR 50.12 in cases
receive one of these credentials, while also receive such information after an involving criminal records, and before
protecting sensitive law enforcement or national
investigation is completed or made making a final eligibility decision, TSA
security information that may be included in other
systems of records. public, with appropriate redactions to will advise the applicant that the FBI
4 Federal Register/Vol. 79, No. 1/Thursday, January 2, 2014/Rules and Regulations
criminal record discloses information individuals “for whom the Federal Nov. 19, 2001, codified at 49 U.S.C. 114
that would disqualify him or her from government has already conducted a note).
the TSA /™ Application Program. terrorist security threat assessment and TSA promulgated the Secure Flight
Within 30 days after being advised that has determined does not pose a terrorist rule under the Administrative
the criminal record received from the security threat.” See 73 FR 64018, 64034 Procedure Act (APA), 5 U.S.C. 553, and
FBI discloses a disqualifying criminal (Oct. 28, 2008). clearly indicated that TSA was still
offense, the applicant must notify TSA TSA will compare TSA Pre/™ developing its KTN program. The
in writing of his or her intent to correct Application Program applicants to method that TSA selected to determine
any information he or she believes to be terrorist watch lists to determine who receives KTNs under the TSA
inaccurate. The applicant must provide whether the individuals pose a terrorist Pre/TM Application Program does not
a certified revised record, or the threat, but its threat assessment also will substantively affect the public to a
appropriate court must forw^ard a include law enforcement records checks degree sufficient to implicate the policy
certified true copy of the information, to determine whether applicants in interests underlying notice-and-
prior to TSA approving eligibility of the other ways pose a security threat.^ comment rulemaking requirements. As
applicant for the TSA Application Applicants who are found to present a noted in the SORN, the TSA Pre/™
Program. With respect to immigration low risk to security, i.e., they do not Application Program does not impose
records, within 30 days after being pose either a terrorist security threat nor any impediment on any individual
advised that the immigration records a more general security threat, will be traveler that is different from that
indicate that the applicant is ineligible provided a KTN.^ experienced by the general traveling
for the TSA Pre/™ Application The use of the phrase “low risk” is public, and individuals who TSA
Program, the applicant must notify TSA neither an expansion nor a contraction determines to be ineligible for the
in writing of his or her intent to correct of the population that was anticipated to program will continue to be screened at
any information believed to be receive KTNs under the Secure Flight airport security checkpoints according
inaccurate. TSA will review any rule; rather, as the TSA Pre/™ program to TSA standard screening protocols.
information submitted and make a final was developed, the use of the term “low See 78 FR 55274, 55275. Specifically, a
decision. If neither notification nor a risk” was employed to more accurately traveler denied admission into a TSA
corrected record is received by TSA, describe who will receive a KTN. The Pre/TM lang because he or she does not
TSA may make a final determination to TSA Pre/™ Application Program is a have a KTN will face no greater
deny eligibility. trusted traveler program, not a program screening impediment than anyone in
One advocacy group stated that open to all except those who present a the standard screening lane. Thus,
records of travel itineraries should be terrorist threat. This standard also is notice-and-comment rulemaking is not
expunged because, as the commenter consistent with the statutory required because the Secure Flight
claimed, they are records of how authorization TSA received from the regulation notified the public that TSA
individuals exercise their First Congress to “[ejstablish requirements to would retain the ability to determine
Amendment rights. The TSA Pre/™ implement trusted passenger programs who might receive a KTN, and also
Application Program neither requests and use available technologies to because no new substantive burden or
nor maintains applicant travel itinerary expedite security screening of impediment for any traveler has been
records, so this comment is passengers who participate in such created. As such, the use of the phrase
inapplicable. programs, thereby allowing security “low risk” does not constitute an
Contrary to some commenters’ screening personnel to focus on those amendment to the Secure Flight
assertion that the TSA Pre/™ passengers who should be subject to regulation.
Application Program infringes upon an more extensive screening.” See sec. The same commenter also suggested
individual’s right to travel, this program 109(a)(3) of the Aviation and that TSA should make public its
will provide an added convenience to Transportation Security Act (ATSA), algorithms or thresholds for determining
the majority of the traveling public. Public Law 107-71 (115 Stat. 597, 613, which TSA Pre/™; Application
A public interest research center Program applicants are approved. If
noted that according to the SORN, ^ As TSA developed its known traveler program TSA were to make its algorithms public,
Known Traveler Numbers (KTNs) will under the Secure Flight rule, it determined that it it would be possible for individuals who
be granted to individuals who pose a would require a security threat assessment similar seek to disrupt civil aviation to
“low” risk to transportation seciuity, to the threat assessment used for the TWIG and circumvent the algorithms. Such
HME programs. The threat assessments for the
while the Secure Flight regulation (see TWIG and HME programs compare applicant names disclosure would be contrary to TSA’s
49 CFR 1560.3) provides that when a to watch lists and to law enforcement records to mission and might endanger the flying
known traveler program is instituted, determine whether applicants pose a terrorist threat public.
individuals for whom the Federal or other security threat. As part of this assessment, Other commenters suggested that
certain criminal convictions (e.g., espionage) are
government has conducted a security applicant information should be
determined to be permanent bars to receiving a
threat assessment and who do “not pose TWIG or HME, while other convictions (e.g., destroyed immediately after providing
a security threat” will be provided a smuggling) require a period of time to have passed eligible individuals a KTN. For those
KTN. This commenter stated that DHS post-conviction or post-imprisonment before the individuals granted KTNs, TSA will
applicant will be considered for the program. See
thus used the SORN to amend the maintain the application data while the
49 GFR 1572.103. The TWIG and HME programs
Secure Flight regulation. DHS disagrees thus consider not only whether an applicant poses KTN is valid and for one additional year
that the use of these two phrases a terrorist threat, but also whether the applicant to ensure that the security mission of
constitutes a change in the Secure Flight otherwise poses a security threat. the agency is properly protected.
regulation for who may receive a KTN. 3 In developing its known traveler program, TSA Without the application data, TSA
relied on its expertise in aviation security to
In response to comments on the Secure would be unable to identify instances of
determine that a “threat” includes a declaration of
Flight proposed rule, TSA stated that it intent to cause harm, or something likely to cause fraud, identity theft, evolving risks, and
intended “to develop and implement harm. Furthermore, TSA determined that a “risk” other security issues. Moreover,
the Known Traveler Number as part of only represents a chance of something going wTong destruction of the underlying
or a possibility of danger. Therefore, TSA deemed
the Secure Flight program. ...” and application information will hinder
that “low risk” individuals “do not pose a security
that a KTN will be assigned to threat” to aviation security. TSA’s ability to assist KTN holders who