[Federal Register Volume 85, Number 48 (Wednesday, March 11, 2020)]
[Proposed Rules]
[Pages 14176-14178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04984]


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

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. USCBP-2019-0044]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/U.S. Customs and Border Protection-002 Trusted and 
Registered Traveler Programs (TRTP) System of Records

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a modified and reissued system of records pursuant to the 
Privacy Act of 1974 for the ``Department of Homeland Security/U.S. 
Customs and Border Protection-002 Trusted and Registered Traveler 
Programs,'' previously titled ``Global Enrollment System (GES) System 
of Records,'' and this proposed rulemaking. In this proposed 
rulemaking, the Department and the U.S. Customs and Border Protection 
(CBP) 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 April 10, 2020.

ADDRESSES: You may submit comments, identified by docket number USCBP-
2019-0044, 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.

FOR FURTHER INFORMATION CONTACT: For general questions, please contact: 
Debra Danisek, (202) 344-1610, CBP Privacy Officer, U.S. Customs and 
Border Protection, 1300 Pennsylvania Ave NW, Washington, DC 20229. For 
privacy issues, please contact: Jonathan R. Cantor, [email protected], 
(202) 343-1717, Acting Chief Privacy Officer, Privacy Office, 
Department of Homeland Security, Washington, DC 20528-0655.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, DHS/CBP 
proposes to update, rename, and reissue a current DHS system of records 
newly titled, ``DHS/CBP-002 Trusted and Registered Traveler Programs 
(TRTP).'' Formerly titled the ``Global Enrollment System,'' this system 
of records allows CBP to collect and maintain records on individuals 
who voluntarily provide personally identifiable information to CBP in 
return for enrollment in a program that will make them eligible for 
dedicated CBP processing at designated U.S. border ports of entry. This 
system of records includes information on individuals who participate 
in trusted traveler and registered traveler programs. This system of 
records notice (SORN) is being re-published under the new name, with a 
more comprehensive description of these programs, and the removal of 
references to the CBP Trusted Worker Programs, which are covered under 
the DHS/CBP-010 Persons Engaged in International Trade in Customs and 
Border Protection Licensed/Regulated Activities System of Records 
Notice (December 19, 2008, 73 FR 77753). A fuller description of this 
revised SORN can be found herein the Federal Register.
    Trusted traveler programs facilitate processing for pre-approved 
members, permitting more efficient inspections, and helping move 
participants through the lines at the port of entry or other designated 
locations more expeditiously. CBP's trusted traveler programs include:
     Global Entry,\1\ which enables CBP to provide U.S. 
citizens, lawful permanent residents (LPRs), and citizens of certain 
foreign countries dedicated processing when arriving at airports with 
designated Global Entry kiosks.
---------------------------------------------------------------------------

    \1\ Final Rule, Establishment of Global Entry Program (77 FR 
5681, Feb. 6, 2012).
---------------------------------------------------------------------------

     NEXUS, which allows pre-screened travelers dedicated 
processing when entering the United States and Canada. Program members 
use specific processing lanes at designated U.S.-Canada border ports of 
entry, NEXUS kiosks when entering Canada by air, and Global Entry 
kiosks when entering the United States via Canadian Preclearance 
airports. NEXUS members also receive dedicated processing at marine 
reporting locations.
     Secure Electronic Network for Travelers Rapid Inspection 
(SENTRI), which provides dedicated processing clearance for pre-
approved travelers using designated primary lanes entering the United 
States at land border ports of entry along the U.S.-Mexico border.
     The Free and Secure Trade (FAST) program, which provides 
dedicated processing for pre-approved commercial truck drivers from the 
United States, Canada, and Mexico. Members may use dedicated FAST lanes 
at both northern and southern border ports.
     The U.S.-Asia Economic Cooperation (APEC) Business Travel 
Card (ABTC) Program, which allows for U.S. business travelers or 
government officials engaged in business in the APEC region dedicated 
screening at participating airports.
    Individuals who apply for enrollment in a trusted traveler program 
must provide biographic and certain biometric information to CBP, as 
described in the system of records notice. CBP screens this information 
against databases to verify eligibility for trusted traveler program 
participation. Once an applicant is approved and enrolls in the trusted 
traveler program, his or her information is vetted by CBP on a 
recurrent basis to ensure continued eligibility.
    CBP also sponsors registered traveler programs that, like trusted 
traveler programs, allow individuals to provide their information to 
CBP voluntarily prior to travel in order to qualify for dedicated 
processing. Unlike trusted travelers, registered travelers are not 
subject to vetting, but rather maintain information on file with CBP to 
better facilitate their arrival at ports of entry.
    Registered traveler programs include:
     Decal and Transponder Online Procurement System (DTOPS), 
which allows individuals registered to eligible commercial vehicles to 
pay their annual user fees in advance online and cross the border using 
decals or transponders that facilitate CBP inspection.
     Pleasure boat reporting options, which allow operators of 
small vessels arriving in the United States from a foreign location to 
report their arrival to CBP remotely instead of in person as

[[Page 14177]]

required under 19 U.S.C. 1433. Travelers who are members of another CBP 
trusted traveler program, who hold an I-68 Canadian Border boat landing 
permit, or who participate in the Local Border Option (LBO) may be 
eligible for remote arrival reporting.
    CBP has signed a number of joint statements with foreign partners 
to permit citizens of certain foreign countries to apply for Global 
Entry. Some of these joint statements also permit Global Entry members 
to apply for trusted traveler programs operated by foreign partners. 
CBP continues to work with government border authorities in various 
countries to create this growing international network. As part of the 
procedure for implementing a joint statement, and adding foreign 
partners to Global Entry, CBP and each foreign partner execute parallel 
procedures that incorporate privacy protections. A more in-depth 
discussion of the arrangements by country is made available in DHS/CBP/
PIA-002(b) GES Privacy Impact Assessment and Appendix A ``CBP Global 
Entry Expansion: Joint Statements.''
    The authority for TRTP derives from CBP's mandate to secure the 
borders of the United States, and to facilitate legitimate trade and 
travel. The statutes that permit and define these programs include:
     Section 7208 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (IRTPA), as amended, 8 U.S.C. 1365b(k);
     Section 215 of the Immigration and Nationality Act, as 
amended, 8 U.S.C. 1185;
     Section 402 of the Homeland Security Act of 2002, as 
amended, 6 U.S.C. 202;
     Section 404 of the Enhanced Border Security and Visa 
Reform Act of 2002, 8 U.S.C. 1753; and
     Section 433 of the Tariff Act of 1930, as amended, 19 
U.S.C. 1433.
    The Regulations that permit and define TRTP include Parts 103 and 
235 of Title 8 of the Code of Federal Regulations. See, especially, 8 
CFR 103.2, 103.7, 103.16, 235.1, 235.2, 235.7, and 235.12. Pursuant to 
the Independent Offices Appropriations Act of 1952, 31 U.S.C. 9701, 
individuals seeking to enroll in trusted traveler or registered 
traveler programs must pay a fee when they apply or renew their 
membership. See 8 CFR 103.7(b)(1)(ii)(M).
    Participation in these programs is entirely voluntary. Joint 
Statements with foreign partners establish that each country's use of 
GES information for vetting will be consistent with applicable domestic 
laws and policies. Participants should be aware that when they submit 
their information to a foreign country or agree to share their 
information with a foreign partner, the foreign country uses, 
maintains, retains, or disseminates their information in accordance 
with that foreign country's laws and privacy protections.
    Consistent with DHS's information sharing mission, GES information 
may be shared with other DHS components whose personnel have a need to 
know the information to carry out their national security, law 
enforcement, immigration, intelligence, or other homeland security 
functions. In addition, information may be shared with appropriate 
federal, state, local, tribal, territorial, foreign, or international 
government agencies consistent with the routine uses set forth in this 
system of records notice.

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 individuals' 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. 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. 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 and provide an opportunity for public comment.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/CBP-002 TRTP System of Records. Some information in DHS/
CBP-002 TRTP System of Records relates to official DHS national 
security, law enforcement, and immigration activities. 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 or 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.
    In appropriate circumstances, when 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/DHS/CBP-002 TRTP 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

0
1. The general 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.
* * * * *
0
2. Add, at the end of Appendix C to Part 5, paragraph ``82'' to read as 
follows:

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

* * * * *
    82. The DHS/U.S. Customs and Border Protection (CBP)-002 Trusted 
and Registered Traveler Program (TRTP) System of Records consists of 
electronic and paper records and will be used by DHS and its 
components. The DHS/CBP-002 TRTP System of Records collects and 
maintains records on individuals who voluntarily provide personally 
identifiable information to U.S. Customs and Border Protection in 
return for enrollment in a program that will make them eligible for 
dedicated CBP processing at designated U.S. border ports of entry 
and foreign preclearance facilities. The DHS/CBP-002 TRTP system of 
records contains personally identifiable information in biographic 
application data, biometric information, conveyance information, 
pointer information to other law enforcement databases that support 
the DHS/CBP membership decision, Law Enforcement risk assessment 
worksheets, payment tracking numbers, and U.S. or foreign trusted 
traveler membership decisions in the form of a ``pass/fail.''
    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);

[[Page 14178]]

(d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), 
(e)(5), (e)(8); (f); and (g)(1). Additionally, the Secretary of 
Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted 
records created during the background check and vetting process from 
the following provisions of the Privacy Act 5 U.S.C. 552a(c)(3); 
(d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f).
    Also, the Privacy Act requires DHS maintain an accounting of 
such disclosures made pursuant to all routine uses. However, 
disclosing the fact that CBP has disclosed records to an external 
law enforcement and/or intelligence agency may affect ongoing law 
enforcement, intelligence, or national security activity. As such, 
the Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(j)(2) 
and (k)(2) has exempted these records from (c)(3), (e)(8), and 
(g)(1) of the Privacy Act, as is necessary and appropriate to 
protect this information.
    In addition, when a record received from another system has been 
exempted in that source system under 5 U.S.C. 552a(j)(2), DHS will 
claim the same exemptions for those records that are claimed for the 
original primary systems of records from which they originated and 
claims any additional exemptions set forth here.
    Finally, in its discretion, CBP may not assert any exemptions 
with regard to accessing or amending an individual's application 
data in a trusted or registered traveler program or accessing their 
final membership determination in the trusted or registered traveler 
programs.
    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 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. When an investigation 
has been completed, information on disclosures made may continue to 
be exempted if the fact that an investigation occurred remains 
sensitive after completion.
    (b) From subsection (d) (Access and Amendment 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, to tamper with witnesses or evidence, and to avoid 
detection or apprehension. 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.
    (c) 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.
    (d) 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.
    (e) 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.
    (f) 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, and potential witnesses, and confidential informants.
    (g) 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) 
would preclude DHS agents from using their investigative training 
and exercise of good judgment to both conduct and report on 
investigations.
    (h) 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.
    (i) From subsection (g)(1) (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. 2020-04984 Filed 3-10-20; 8:45 am]
 BILLING CODE 9111-14-P