[Federal Register Volume 86, Number 173 (Friday, September 10, 2021)]
[Rules and Regulations]
[Pages 50603-50604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19472]



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 Rules and Regulations
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  Federal Register / Vol. 86, No. 173 / Friday, September 10, 2021 / 
Rules and Regulations  

[[Page 50603]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. USCBP-2021-0031]


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

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Homeland Security (DHS) is issuing a 
final rule to amend its regulations to exempt portions of a newly 
updated and reissued system of records titled, ``DHS/U.S. Customs and 
Border Protection-002 Trusted and Registered Traveler Programs (TRTP) 
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 September 10, 2021.

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: Lynn 
Parker Dupree, (202) 343-1717, Chief Privacy Officer, Privacy Office, 
U.S. Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    The U.S. Department of Homeland Security (DHS) U.S. Customs and 
Border Protection (CBP) published a notice of proposed rulemaking in 
the Federal Register, 85 FR 14176 (March 11, 2020), 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-002 Trusted and Registered 
Traveler Programs System of Records'' in the Federal Register at 85 FR 
14214 (March 11, 2020), to provide notice to the public that (1) DHS/
CBP updated the name of the system of records from Global Enrollment 
System (GES); (2) DHS/CBP provided a more comprehensive description of 
the trusted and registered traveler programs to include Global Entry, 
NEXUS, Secure Electronic Network for Travelers Rapid Inspection 
(SENTRI), Free and Secure Trade (FAST) program, and U.S.-Asia Economic 
Cooperation (APEC) Business Travel Card (ABTC) Program; and (3) DHS/CBP 
removed references to CBP Trusted Worker Programs which are covered by 
the DHS/CBP-010 Persons Engaged in International Trade in Customs and 
Border Protection Licensed/Regulated Activities System of Records 
Notice, 73 FR 77753 (December 19, 2008).
    DHS/CBP invited comments on both the notice of proposed rulemaking 
(NPRM) and System of Records Notice (SORN).

II. Public Comments

    DHS received no comments on the NPRM and one non-substantive 
comment on the SORN. After full consideration of the public comment, 
the Department 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 amends 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. Amend appendix C to part 5 by adding paragraph 84 to read as 
follows:

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

* * * * *
    84. The U.S. Department of Homeland Security (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: 552a(c)(3), (c)(4); (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.

[[Page 50604]]

    Finally, in its discretion, CBP will 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/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. 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 certain 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 certain records could 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. Amendment of certain records could 
interfere with ongoing investigations and law enforcement 
activities. Further, permitting amendment to counterintelligence 
records after an investigation has been completed would impose an 
unmanageable administrative burden. 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.
    (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.

Lynn Parker Dupree,
Chief Privacy Officer, U.S. Department of Homeland Security.
[FR Doc. 2021-19472 Filed 9-9-21; 8:45 am]
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