[Federal Register Volume 85, Number 51 (Monday, March 16, 2020)]
[Rules and Regulations]
[Pages 14733-14734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04987]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 
 ========================================================================
 

  Federal Register / Vol. 85, No. 51 / Monday, March 16, 2020 / Rules 
and Regulations  

[[Page 14733]]



DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 5

[Docket No. USCBP-2019-0040]


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

AGENCY: U.S. Customs and Border Protection, U.S. Department of Homeland 
Security.

ACTION: Final rule.

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

SUMMARY: The Department of Homeland Security (DHS) is issuing a final 
rule to amend its regulations to exempt portions of a newly updated 
system of records titled, ``Department of Homeland Security/U.S. 
Customs and Border Protection-009 Electronic System for Travel 
Authorization (ESTA) System of Records'' from certain provisions of the 
Privacy Act. Specifically, the Department exempts portions of this 
system of records from one or more provisions of the Privacy Act 
because of criminal, civil, and administrative enforcement 
requirements.

DATES: This final rule is effective March 16, 2020.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Debra L. Danisek (202) 344-1610, 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, 
Acting Chief Privacy Officer, Privacy Office, Department of Homeland 
Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    The Department of Homeland Security (DHS) U.S. Customs and Border 
Protection (CBP) published a notice of proposed rulemaking in the 
Federal Register, (84 FR 30634 June 27, 2019), proposing 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. DHS issued the ``DHS/CBP-009 Electronic System for Travel 
Authorization (ESTA) System of Records'' in the Federal Register at 84 
FR 30746 on June 27, 2019, to provide notice to the public that (1) 
DHS/CBP is expanding the categories of individuals to clarify the use 
of ESTA at all ports of entry; (2) to clarify that this system covers 
records obtained on the Form I-94W ``Nonimmigrant Visa Waiver Arrival/
Departure Record,'' the paper version of ESTA; (3) to clarify that the 
ESTA application includes questions about travel to any Department of 
State-designated state sponsor of terrorism, and that DHS/CBP will no 
longer list the specific countries; (4) to specify that all ESTA 
vetting results and derogatory information in the Automated Targeting 
System (ATS); (5) to clarify and expand several previously issued 
routine uses; (6) 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; and (7) to expand the applicability of the previously 
issued exemptions from the Privacy Act.
    DHS/CBP invited comments on both the Notice of Proposed Rulemaking 
(NPRM) and System of Records Notice (SORN).

Public Comments

    DHS received one comment on the NPRM and no comments on the SORN.

NPRM

    CBP received one comment on the published NPRM regarding the 
collection of biometrics by the U.S. Government generally, and not 
specific to the ESTA system of records. CBP appreciates the public 
comment and strives to be transparent regarding all traveler 
operations. After consideration of the public comment, CBP has 
determined that the exemptions should remain in place and will 
implement the rulemaking as proposed.

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 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.


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 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

[[Page 14734]]

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.
    (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 
cited above under (a) and (b) 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 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.
    (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) 
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. 2020-04987 Filed 3-13-20; 8:45 am]
 BILLING CODE 9111-14-P