[Federal Register Volume 86, Number 53 (Monday, March 22, 2021)]
[Proposed Rules]
[Pages 15136-15138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05650]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. USCBP-2020-0051]
RIN 1651-AB30


Privacy Act of 1974: Implementation of Exemptions; U.S. 
Department of Homeland Security/U.S. Customs and Border Protection-018 
Customs Trade Partnership Against Terrorism System of Records

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Homeland Security (DHS) is giving 
concurrent notice of a modified and reissued system of records pursuant 
to the Privacy Act of 1974 for the ``DHS/U.S. Customs and Border 
Protection (CBP)-018 Customs Trade Partnership Against Terrorism System 
of Records,'' and this proposed rulemaking. In this proposed 
rulemaking, the Department and 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 21, 2021.

ADDRESSES: You may submit comments, identified by docket number USCBP-
2020-0051, 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: James Holzer, 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, [email protected], (202) 344-1610, CBP Privacy 
Officer, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue 
NW, Washington, DC 20229. For privacy issues, please contact: James 
Holzer, [email protected], (202) 343-1717, Acting Chief Privacy 
Officer, Privacy Office, U.S. 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, the U.S. 
Department of Homeland Security (DHS), U.S. Customs and Border 
Protection (CBP) proposes to modify and reissue a current DHS system of 
records titled, ``DHS/CBP-018 Customs Trade Partnership Against 
Terrorism System of Records.'' DHS/CBP is reissuing this modified 
system of records notice to update its description of how CBP collects 
and maintains information pertaining to prospective, ineligible, 
current, or former trade partners in the CTPAT Program; other entities 
and individuals in their supply chains; and members of foreign 
governments' secure supply chain programs that have been recognized by 
CBP, through a mutual recognition arrangement or comparable 
arrangement, as being compatible with CTPAT. DHS/CBP is updating this 
system of records notice to clarify that CTPAT Program members may also 
submit information to DHS/CBP under the CTPAT Trade Compliance program, 
to include importer self-assessments and other documentation.
    CBP uses the information collected and maintained through the CTPAT 
security and trade compliance programs to carry out its trade 
facilitation, law enforcement, and national security missions. In 
direct response to 9/11, CBP challenged the trade community to partner 
with the government to design a new approach to supply chain security--
one that protects the United States from acts of terrorism by improving 
security while facilitating the flow of compliant cargo and 
conveyances. The result was the CTPAT Program--a voluntary government/
private sector partnership program in which certain types of businesses 
agree to cooperate with CBP in the analysis, measurement, monitoring, 
reporting, and enhancement of their supply chains.
    Businesses accepted into the CTPAT Program are called partners and 
agree to take actions to protect their supply chain, identify security 
gaps, and implement specific security measures and best practices in 
return for facilitated processing of their shipments by CBP. The CTPAT 
Program focuses on improving security from the point of origin 
(including manufacturer, supplier, or vendor) through a point of 
distribution to the destination. The current security guidelines for 
CTPAT Program members address a broad range of topics including 
personnel, physical, and procedural security; access controls; 
education, training, and awareness; manifest procedures; conveyance 
security; threat awareness; and documentation processing. These 
guidelines offer a customized solution for the members, while providing 
a clear minimum standard that approved companies must meet.
    Businesses eligible to fully participate in the CTPAT Program 
include U.S. importers; exporters; U.S./Canada highway carriers; U.S./
Mexico highway carriers; rail and sea carriers; licensed U.S. Customs 
brokers; U.S. marine port authority/terminal operators; U.S. freight 
consolidators; ocean transportation intermediaries and non-operating 
common carriers; Mexican and Canadian manufacturers; and Mexican long-
haul carriers.

[[Page 15137]]

    CTPAT Program members in good standing may optionally participate 
in the CTPAT Trade Compliance program. Beginning in March 2020, the 
former Importer-Self Assessment (ISA) Program was integrated into the 
CTPAT Program as CTPAT Trade Compliance. DHS/CBP is updating this SORN 
to clarify the additional records collected as part of the CTPAT Trade 
Compliance program, which is limited to existing CTPAT Program members. 
To qualify for the CTPAT Trade Compliance program, an importer must 
submit an additional application via the CTPAT web portal and (a) be a 
Member of the CTPAT Security Program and in good standing, (b) meet the 
eligibility criteria laid out in the Eligibility Questions, and (c) 
complete a Memorandum of Understanding (MOU) and Program Questionnaire.
    To participate in the CTPAT Program, a company is required to 
submit a confidential, on-line application using the CTPAT Security 
Link Portal, https://ctpat.cbp.dhs.gov. The CTPAT Security Link Portal 
is the public-facing portion of the CTPAT system used by applicants to 
submit the information in their company and supply chain security 
profiles.
    Additionally, the applicant business must complete a Supply Chain 
Security Profile (SCSP). The information provided in the SCSP is a 
narrative description of the procedures the applicant business uses to 
adhere to each CTPAT Security Criteria or Guideline articulated for 
their particular business type (e.g., importer, customs broker, freight 
forwarder, air, sea, and land carriers, contract logistics providers) 
together with any supporting documentation. Data elements entered by 
the applicant business are accessible for update or revision through 
the CTPAT Security Link Portal. An applicant's SCSP must provide supply 
chain security procedures for each business in the applicant's supply 
chain, even if those businesses are not, or do not desire to become, 
partners of CTPAT separately. This information is focused on the 
security procedures of those businesses (e.g., whether the business 
conducts background investigations on employees), rather than the 
individuals related to those businesses (e.g., a list of employee 
names).
    A fuller description of this modified SORN can be found herein the 
Federal Register.
    Consistent with DHS's information sharing mission, information 
stored in the DHS/CBP-018 Customs-Trade Partnership Against Terrorism 
(CTPAT) system of records may be shared with other DHS Components that 
have a need to know the information to carry out their national 
security, law enforcement, immigration, intelligence, or other homeland 
security functions. In addition, DHS/CBP may share information 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 the DHS/CBP-018 CTPAT System of Records. Some information in 
the DHS/CBP-018 CTPAT 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 system of records notice for the DHS/CBP-018 CTPAT 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. Amend the authority citation for Part 5 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, add paragraph 84 to read as follows:

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

* * * * *
    84. The DHS/CBP-018 Customs Trade Partnership Against Terrorism 
(CTPAT) System of Records consists of electronic and paper records 
and will be used by DHS and its components. The DHS/CBP-018 CTPAT 
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; and 
national security activities. The DHS/CBP-018 CTPAT 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.
    No exemption shall be asserted with respect to information 
requested from and provided by the CTPAT Program applicant 
including, but not limited to, company profile, supply chain 
information, and other information provided during the application 
and validation process. CBP will not assert any exemptions for an 
individual's application data and final membership determination in 
response to an access request from that individual. However, the 
Privacy Act requires DHS to maintain an accounting of the 
disclosures made pursuant to all routines uses. Disclosing the fact 
that a law enforcement agency has sought particular records may 
affect ongoing law enforcement activities. As such, pursuant to 5 
U.S.C. 552a(j)(2), DHS will claim exemption 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

[[Page 15138]]

Act of 1974, as amended, pursuant to 5 U.S.C. 552a(k)(2), as is 
necessary and appropriate to protect this information.
    Pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, 
all other CTPAT Program data, including information regarding the 
possible ineligibility of an applicant for CTPAT Program membership 
discovered during the vetting process and any resulting issue 
papers, is exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5) and (e)(8); 
(f); and (g). Pursuant to 5 U.S.C. 552a(k)(2), information regarding 
the possible ineligibility of an applicant for CTPAT Program 
membership discovered during the vetting process and any resulting 
issue papers are exempt from 5 U.S. 552a(c)(3); (d); (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). In addition, to the extent 
a record contains information from other exempt systems of records, 
CBP will rely on the exemptions claimed for those systems.
    Finally, in its discretion, CBP may not assert any exemptions 
with regard to accessing or amending an individual's application 
data in the CTPAT Program or accessing their final membership 
determination in the CTPAT 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.
    (j) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

James Holzer,
Acting Chief Privacy Officer, U.S. Department of Homeland Security.
[FR Doc. 2021-05650 Filed 3-19-21; 8:45 am]
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