[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Proposed Rules]
[Pages 67621-67622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28400]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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  Federal Register / Vol. 76, No. 212 / Wednesday, November 2, 2011 / 
Proposed Rules  

[[Page 67621]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2011-0103]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Customs and Border Protection DHS/CBP-003 
Credit/Debit Care Data System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/U.S. Customs and 
Border Protection-003 Credit/Debit Care Data System of Records'' and 
this proposed rulemaking. In this proposed rulemaking, the Department 
proposes to exempt portions of the system of records from one or more 
provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements.

DATES: Comments must be received on or before December 2, 2011.

ADDRESSES: You may submit comments, identified by docket number DHS-
2011-0103, by one of the following methods:
     Federal e-Rulemaking Portal:  http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: (703) 483-2999.
     Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.
     Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
     Docket: For access to the docket to read background 
documents or comments received go to http://www.regulations.gov.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Laurence E. Castelli (202) 325-0280), CBP Privacy Officer, Office of 
International Trade, U.S. Customs and Border Protection, Mint Annex, 
799 Ninth Street, NW., Washington, DC 20229. For privacy issues please 
contact: Mary Ellen Callahan (703) 235-0780), Chief Privacy Officer, 
Privacy Office, Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) U.S. Customs and Border 
Protection (CBP) proposes to establish a new DHS system of records 
notice titled, ``DHS/CBP-003 Credit/Debit Card Data System of 
Records.''
    This system collects, uses, and maintains records related to any 
credit and debit card transactions with CBP. CBP is providing notice to 
the public regarding the collection, use, and dissemination of any 
credit and debit card transaction information provided to CBP. Many 
programs administered by CBP require an individual or business to 
provide payment for various purposes, including services, applications, 
fees, and duties, among others. As CBP expands methods of payment, many 
of these transactions will permit use of credit and debit cards, which 
will require the collection of the card data, disseminating that data 
to process the transaction, and maintaining the data for recordkeeping 
purposes. Information from this system will be shared with the 
Department of Treasury, banks, and credit and debit card processors as 
necessary. The data will not be used for law enforcement or 
intelligence purposes unless the individual's underlying transaction 
becomes associated with a law enforcement or intelligence action.
    The purpose of this system is to provide payment processing and 
recordkeeping of credit and debit card transactions with CBP. Authority 
for maintenance of this system is given by The Homeland Security Act of 
2002, Public Law 107-296; 5 U.S.C. 301; 8 U.S.C. 1101, et seq.; 19 
U.S.C. 1, et seq.; Section 711 of the Implementing Recommendations of 
the 9/11 Commission Act of 2007 (9/11 Act), (Pub. L. 110-53); and the 
Travel Promotion Act (Pub. L. 111-145). This newly established system 
will allow CBP to collect credit and/or debit card payment information 
from individuals providing payment to CBP for services, applications, 
fees, duties, and other official activities. Records in this system are 
safeguarded in accordance with applicable rules and policies, including 
all applicable DHS automated systems security and access policies. 
Strict controls have been imposed to minimize the risk of compromising 
the information that is being stored. Access to the computer system 
containing the records in this system is limited to those individuals 
who have a need to know the information for the performance of their 
official duties and who have appropriate clearances or permissions. All 
routine uses proposed are compatible with the purpose for which the 
information was collected and CBP's mission.
    Consistent with DHS's information sharing mission, information 
stored in the Credit/Debit Card Data system of record may be shared 
with other DHS components, as well as appropriate Federal, State, 
local, foreign, or international or tribal government agencies. This 
sharing will only take place after DHS determines that the receiving 
component or agency has a need to know the information to carry out 
national security, law enforcement, immigration, intelligence, or other 
functions consistent with the routine uses set forth in this system of 
records notice.
    Additionally, the Department of Homeland Security is issuing a 
Notice of Proposed Rulemaking to exempt this system of records from 
certain provisions of the Privacy Act, concurrent with this system of 
records elsewhere in the Federal Register. DHS

[[Page 67622]]

is not exempting any data in the system regarding an individual's 
credit or debit card transaction. This system, however, may contain 
records or information pertaining to the accounting of disclosures made 
from this system to other law enforcement or intelligence agencies 
(federal, state, local, foreign, international or tribal) in accordance 
with the published routine uses or statutory basis for disclosure under 
5 U.S.C. 552a(b). For the accounting of these disclosures only, in 
accordance with 5 U.S.C. 552a(j)(2), and (k)(2), DHS will claim 
exemptions for these records or information.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing 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. In 
the Privacy Act, an individual is defined to encompass U.S. citizens 
and lawful permanent residents. As a matter of policy, DHS extends 
administrative Privacy Act protections to all individuals where systems 
of records maintain information on U.S. citizens, lawful permanent 
residents, and visitors.
    The Privacy Act allows government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/CBP-003 CDCDS System of Records. Some information in DHS/
CBP-003 CDCDS System of Records relates to official DHS law enforcement 
and immigration activities; specifically, records or information 
pertaining to the accounting of disclosures made from this system to 
other law enforcement or intelligence agencies (Federal, state, local, 
foreign, international or tribal) in accordance with the published 
routine uses or statutory basis for disclosure under 5 U.S.C. 552a(b). 
These exemptions are needed to protect information relating to DHS 
activities from disclosure to subjects or others related to these 
activities. Specifically, the exemptions are required to preclude 
subjects of these activities from frustrating these processes and to 
avoid disclosure of activity techniques. Disclosure of information to 
the subject of the inquiry could also permit the subject to avoid 
detection or apprehension.
    The exemptions proposed here are standard law enforcement and 
national security exemptions exercised by a large number of federal law 
enforcement and intelligence agencies. In appropriate circumstances, 
where compliance would not appear to interfere with or adversely affect 
the law enforcement purposes of this system and the overall law 
enforcement process, the applicable exemptions may be waived on a case 
by case basis.
    A notice of system of records for DHS/CBP-0 CDCDS System of Records 
is also published in this issue of the Federal Register.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

    For the reasons stated in the preamble, DHS proposes to amend 
Chapter I of Title 6, Code of Federal Regulations, as follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

    1. The authority citation for Part 5 continues to read as follows:

    Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. 
Subpart B also issued under 5 U.S.C. 552a.

    2. Add at the end of Appendix C to Part 5, the following new 
paragraph ``1'':

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    63. The DHS/CBP-003 CDCDS System of Records consists of 
electronic and paper records and will be used by DHS and its 
components. The DHS/CBP-003 CDCDS System of Records is a repository 
of information held by DHS in connection with its several and varied 
missions and functions, including, but not limited to the 
enforcement of civil and criminal laws; investigations, inquiries, 
and proceedings thereunder; national security and intelligence 
activities.. The DHS/CBP-003 CDCDS System of Records contains 
information that is collected by, on behalf of, in support of, or in 
cooperation with DHS and its components and may contain personally 
identifiable information collected by other Federal, State, local, 
tribal, foreign, or international government agencies. The Secretary 
of Homeland Security has exempted this system from the following 
provisions of the Privacy Act, subject to limitations set forth in 5 
U.S.C. 552a(c)(3) and (4), (e)(8), and (g) pursuant to 5 U.S.C. 
552a(j)(2) and (k)(2). Exemptions from these particular subsections 
are justified, on a case-by-case basis to be determined at the time 
a request is made, for the following reasons:
    (a) From subsection (c)(3) and (4) (Accounting for Disclosures) 
because release of the accounting of disclosures could alert the 
subject of an investigation of an actual or potential criminal, 
civil, or regulatory violation to the existence of that 
investigation and reveal investigative interest on the part of DHS 
as well as the recipient agency. Disclosure of the accounting would 
therefore present a serious impediment to law enforcement efforts 
and/or efforts to preserve national security. Disclosure of the 
accounting would also permit the individual who is the subject of a 
record to impede the investigation, to tamper with witnesses or 
evidence, and to avoid detection or apprehension, which would 
undermine the entire investigative process.
    (b) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with DHS's ability to obtain, serve, and 
issue subpoenas, warrants, and other law enforcement mechanisms that 
may be filed under seal and could result in disclosure of 
investigative techniques, procedures, and evidence.
    (c) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.

    Dated: October 3, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-28400 Filed 11-1-11; 8:45 am]
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