[Federal Register Volume 84, Number 124 (Thursday, June 27, 2019)]
[Proposed Rules]
[Pages 30634-30637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13647]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2018-0045]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security Department of Homeland Security (DHS)/U.S. Customs 
and Border Protection (CBP)-009 Electronic System for Travel 
Authorization (ESTA) System of Records

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS) is giving concurrent 
notice of a reissued system of records pursuant to the Privacy Act of 
1974 for the ``Department of Homeland Security/U.S. Customs and Border 
Protection (CBP)-009 Electronic System for Travel Authorization (ESTA) 
System of Records and this proposed rulemaking. DHS/CBP previously 
issued a Final Rule to exempt this system of records from certain 
provisions of the Privacy Act on August 31, 2009, and codified in the 
Code of Federal Regulations. This Final Rule remains in effect until a 
new Final Rule becomes effective. DHS/CBP is reissuing a Notice of 
Proposed Rulemaking to expand the applicability of the previously 
issued exemptions from the Privacy Act to account for the expanded 
categories of individuals and record source categories described in the 
concurrently issued SORN.

DATES: Comments must be received on or before July 29, 2019.

ADDRESSES: You may submit comments, identified by docket number DHS-
2018-0045, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-343-4010.
     Mail: Jonathan R. Cantor, Acting 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 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.

[[Page 30635]]


FOR FURTHER INFORMATION CONTACT:
    For general questions please contact: Debra L. Danisek, (202) 344-
1610, [email protected], CBP Privacy Officer, Privacy and 
Diversity Office, 1300 Pennsylvania Ave. NW, Washington, DC 20229.
    For privacy issues please contact: Jonathan R. Cantor, (202-343-
1717), [email protected], Acting 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, DHS/CBP 
proposes to concurrently modify the DHS System of Records titled, 
``DHS/CBP-009 Electronic System for Travel Authorization (ESTA) System 
of Records'' and issue this notice of proposed rulemaking to exempt 
portions of the system of records from one or more provision of the 
Privacy Act because of criminal, civil, and administrative enforcement 
requirements. This system of records notice (SORN) describes DHS/CBP's 
collection and maintenance of records that pertain to eligible 
international travelers who wish to travel to the United States under 
the Visa Waiver Program (VWP) and have applied for an ESTA travel 
authorization and persons whose information is provided in response to 
an ESTA application or Form I-94W questions. DHS/CBP developed ESTA, a 
web-based system, in 2008 to determine the eligibility of foreign 
nationals to travel to the United States under the VWP. Using the ESTA 
website, applicants submit biographic information and answer questions 
that permit DHS to determine eligibility for travel under the VWP, 
including whether the applicant poses a law enforcement or security 
risk.
    DHS/CBP vets the ESTA applicant's information against selected DHS 
and other Federal agency databases to enhance DHS's ability to 
determine whether the applicant poses a security risk to the United 
States or is otherwise eligible to travel to and enter the United 
States under the VWP. The ESTA eligibility determination is made prior 
to an alien arriving for inspection in the United States. All ESTA 
vetting results and derogatory information are stored in the Automated 
Targeting System (ATS), and covered by the ATS SORN, DHS/CBP-006 
Automated Targeting System, 77 FR 30297 (May 22, 2012). Further, as 
explained in the concurrent notice of the updated ESTA SORN, DHS/CBP is 
expanding the categories of individuals to clarify the use of ESTA at 
all ports of entry. In addition, DHS/CBP has modified the ESTA SORN to 
clarify and expand several previously issued routine uses. Thus, to 
account for the expanded categories of individuals, record source 
categories and routine uses described in the concurrently issued SORN, 
and to clarify that this system contains records or information 
recompiled from or created from information contained in other systems 
of records that are exempt from certain provision of the Privacy Act, 
DHS/CBP is reissuing a Notice of Proposed Rulemaking (NPRM) to expand 
the applicability of the previously issued exemptions from the Privacy 
Act.
    Additionally, this new NPRM makes clear that this system could 
cover law enforcement and other derogatory records or information 
recompiled from or created from information contained in other systems 
of records that are exempt from certain provisions of the Privacy Act. 
These records are exempt from 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) of the Privacy Act of 1974, as amended, pursuant 5 U.S.C. 
552a(j)(2). Additionally, the Secretary of Homeland Security has 
exempted this system from the following provisions of the Privacy Act, 
pursuant to 5 U.S.C. 552a(k)(1) and (k)(2): 5 U.S.C. 552a(c)(3); 
(d)(1), (d)(2), (d)(3), and (d)(4); (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I); and (f). Such exempt records or information may be law 
enforcement or national security investigation records, law enforcement 
activity and encounter records, or terrorist screening records. DHS 
needs these exemptions in order to protect information relating to law 
enforcement investigations from disclosure to subjects of 
investigations and others who could interfere with investigatory and 
law enforcement activities. Specifically, the exemptions are required 
to: Preclude subjects of investigations from frustrating the 
investigative process; avoid disclosure of investigative techniques; 
protect the identities and physical safety of confidential informants 
and of law enforcement personnel; ensure DHS's and other federal 
agencies' ability to obtain information from third parties and other 
sources; protect the privacy of third parties; and safeguard sensitive 
information.
    Despite the exemptions taken on this system of records, DHS/CBP is 
not taking any exemption from subsection (d) with respect to 
information maintained in the system as it relates to data submitted by 
or on behalf of a person who travels to visit the United States and 
crosses the border, nor shall an exemption be asserted with respect to 
the resulting determination (authorized to travel, pending, or not 
authorized to travel). However, pursuant to 5 U.S.C. 552a(j)(2), DHS/
CBP plans to exempt such information in this system from sections 
(c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as is 
necessary and appropriate to protect this information. Further, DHS 
will claim exemption from section (c)(3) of the Privacy Act of 1974, as 
amended, pursuant to 5 U.S.C. 552a(k)(2) as is necessary and 
appropriate to protect this information. CBP will not disclose the fact 
that a law enforcement or intelligence agency has sought particular 
records because it may affect ongoing law enforcement activities. 
Nonetheless, DHS will examine each request on a case-by-case basis, 
and, after conferring with the appropriate component or agency, may 
waive applicable exemptions in appropriate circumstances and when it 
would not appear to interfere with or adversely affect the law 
enforcement or national security investigation.
    DHS/CBP previously issued a Final Rule to exempt this system of 
records from certain provisions of the Privacy Act on August 31, 2009 
(74 FR 45069). These exemptions remain in effect until a new Final Rule 
becomes effective. Once a Final Rule becomes effective, DHS will add 
this exemption to Appendix C to 6 CFR part 5, DHS Systems of Records 
Exempt from the Privacy Act.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which Federal Government 
agencies collect, maintain, use, and disseminate individual's records. 
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. Additionally, and similarly, the Judicial Redress 
Act (JRA) provides a statutory right to covered persons to make 
requests for access and amendment to covered records, as defined by the 
JRA, along with judicial review for denials of such requests. In 
addition, the JRA prohibits disclosures of covered records, except as 
otherwise permitted by the Privacy Act.

[[Page 30636]]

    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.

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

0
1. The authority citation for part 5 is revised to read as follows:

    Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 5 U.S.C. 301.

0
2. In appendix C to part 5, revise paragraph 20 to read as follows:

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

* * * * *
    20. The Department of Homeland Security (DHS)/U.S. Customs and 
Border Protection (CBP)-009 Electronic System for Travel 
Authorization (ESTA) System of Records consists of electronic and 
paper records and will be used by DHS and its components. The DHS/
CBP-009 Electronic System for Travel Authorization (ESTA) 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 there under; national 
security and intelligence activities. This system of records covers 
information 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. As part of 
the process of determining ESTA eligibility or admissibility to the 
United States under the Visa Waiver Program, CBP collects two types 
of data for which it claims different exemptions.
    (a) CBP will not assert any exemption to limit an individual 
from accessing or amending his or her record under subsection 
552a(d) with respect to information maintained in the system as it 
relates to data submitted by or on behalf of a person who travels to 
visit the United States and crosses the border, nor shall an 
exemption be asserted with respect to the resulting determination 
(approval or denial). However, pursuant to 5 U.S.C. 552a(j)(2), CBP 
will not disclose the fact that a law enforcement or intelligence 
agency has sought particular records because it may affect ongoing 
law enforcement activities, and thus, the Secretary of Homeland 
Security has exempted such records covered by this system from 
sections (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as 
amended, as is necessary and appropriate to protect this 
information. Further, DHS will claim exemption from section (c)(3) 
of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C. 
552a(k)(2) as is necessary and appropriate to protect this 
information. 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:
    (i) From subsection (c)(3) (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.
    (ii) 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.
    (iii) From subsection (g) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.
    (b) Additionally, this system contains law enforcement and other 
derogatory records or information recompiled from or created from 
information contained in other systems of records that are exempt 
from certain provisions of the Privacy Act. For these records or 
information only, the Secretary of Homeland Security, pursuant to 5 
U.S.C. 552a(j)(2), has exempted this system from the following 
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d)(1)-
(4); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) 
and (e)(8); (f); and (g). Additionally, the Secretary of Homeland 
Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted this system 
from the following provisions of the Privacy Act, 5 U.S.C. 
552a(c)(3); (d)(1)-(4); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and 
(f). 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:
    (i) From subsection (c)(3) and (c)(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.
    (ii) From subsection (d) (Access to Records) because access to 
the records contained in this system of records could inform 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 
or another agency. Access to the records could permit the individual 
who is the subject of a record to impede the investigation, and to 
avoid detection or apprehension. From subsection (d) (Amendment to 
Records) because amendment of the records could interfere with 
ongoing investigations and law enforcement activities and would 
impose an unreasonable administrative burden by requiring 
investigations to be continually reinvestigated. In addition, 
permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to homeland 
security.
    (iii) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of federal law, the accuracy of information obtained or 
introduced occasionally may be unclear, or the information may not 
be strictly relevant or necessary to a specific investigation. In 
the interests of effective law enforcement, it is appropriate to 
retain all information that may aid in establishing patterns of 
unlawful activity.
    (iv) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from 
the subject of an investigation would alert the subject to the 
nature or existence of the investigation, thereby interfering with 
that investigation and related law enforcement activities.
    (v) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information could impede law enforcement by 
compromising the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (vi) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) 
(Agency Requirements) and (f) (Agency Rules), because portions of 
this system are exempt from the individual access provisions of 
subsection (d) for the reasons noted above, and therefore DHS is not 
required to establish requirements, rules, or procedures with 
respect to such access. Providing notice to individuals with respect 
to existence of records pertaining to them in the system of records 
or otherwise setting up procedures pursuant to which individuals may 
access and view records pertaining to themselves in the system would 
undermine investigative efforts and reveal the identities of 
witnesses, potential witnesses, and confidential informants.
    (vii) From subsection (e)(5) (Collection of Information) because 
with the collection of information for law enforcement purposes, it 
is impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with subsection (e)(5)

[[Page 30637]]

would preclude DHS agents from using their investigative training 
and exercise of good judgment to both conduct and report on 
investigations.
    (viii) 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.
    (ix) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2019-13647 Filed 6-26-19; 8:45 am]
 BILLING CODE 9111-14-P