[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Notices]
[Pages 67751-67755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28405]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
[Docket No. DHS-2011-0104]
Privacy Act of 1974; Department of Homeland Security, U.S.
Customs and Border Protection, DHS/CBP-009--Electronic System for
Travel Authorization (ESTA) System of Records
AGENCY: Privacy Office, DHS.
ACTION: Notice of Privacy Act system of records.
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SUMMARY: In accordance with the Privacy Act of 1974, the Department of
Homeland Security proposes to update an existing Department of Homeland
Security system of records notice titled ``Department of Homeland
Security/U.S. Customs and Border Protection-009 Electronic System for
Travel Authorization System of Records.'' This system collects and
maintains a record of nonimmigrant aliens who want to travel to the
United States under the Visa Waiver Program, and is used to determine
whether the applicant is eligible to travel to the United States under
the Visa Waiver Program by screening his or her information against
various security and law enforcement databases. DHS/CBP is updating
this system of records notice to reflect: (1) Updated categories of
records to include payment information, including credit card number,
Pay.gov tracking number, billing name, billing address, and the
applicant's country of birth (to reduce the number of false matches);
(2) updated routine uses to allow DHS/CBP to share payment information
with Department of Treasury's Pay.gov for processing; and (3) updated
routine uses to allow sharing of the ESTA application data (which
excludes payment information) with federal, state, local, tribal,
foreign, or international government agencies (including intelligence
agencies) once they have established that they will use the information
for a purpose which is compatible with the purpose of the original
collection. This newly updated system will be included in the
Department of Homeland Security's inventory of record systems.
DATES: Submit comments on or before December 2, 2011. This new system
will be effective December 2, 2011.
ADDRESSES: You may submit comments, identified by docket number DHS-
2011-0104 by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: (703) 483-2999.
Mail: Mary Ellen Callahan, 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 rulemaking. 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:
Laurence E. Castelli (202) 325-0280), CBP Privacy Officer, Office of
International Trade, U.S. Customs and Border Protection, Mint Annex,
799 Ninth Street NW., Washington, DC 20229. For privacy issues please
contact: Mary Ellen Callahan (703) 235-0780), Chief Privacy Officer,
Privacy Office, U.S. Department of Homeland Security, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
[[Page 67752]]
I. Background
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the
Department of Homeland Security proposes to update an existing
Department of Homeland Security system of records notice titled, DHS/
CBP-009--Electronic System for Travel Authorization (ESTA) June 10,
2008, 73 FR 32720. This system collects and maintains records of
nonimmigrant aliens who want to travel to the United States under VWP
and is used to determine whether the applicant is eligible to travel to
the United States by screening his or her information against various
security and law enforcement databases.
In 2008, a web-based system called the Electronic System for Travel
Authorization (ESTA) was developed to determine the eligibility of
visitors to travel to the United States by air or sea under the Visa
Waiver Program (VWP), prior to boarding a carrier en route to the
United States, and whether such travel poses a law enforcement or
security risk by screening the information provided against selected
security and law enforcement databases.
Pursuant to Section 711(d)(1)(E) of the Implementing the
Recommendations of the 9/11 Commission Act, CBP amended its regulations
to include the collection of an application fee for each application
submitted as required by the Travel Promotion Act (TPA), which was
signed into law on March 4, 2010.
In addition to the application fee, TPA also mandates that CBP
collect $10 from each approved applicant, effective six months from the
date the legislation was signed. CBP must transfer these funds
quarterly to the Travel Promotion Fund for use by the Corporation for
Travel Promotion. CBP published regulations instituting the fee on
August, 9, 2010 (75 FR 47701).
Through the ESTA web-based interface, the user will be prompted
through several screens to capture the required application
information. Once the applicant has entered all required application
information, ESTA will take the applicant through a series of screens
where he/she enters his/her billing name, billing address, and credit
card information. ESTA forwards all of this payment information to
Pay.gov for payment processing and the applicant name and an ESTA
tracking number to the DHS/CBP-018 Credit/Debit Card Data System
(CDCDS) System of Records for payment reconciliation. Pay.gov sends a
nightly activity file, including the last four digits of the credit
card, authorization number, billing name, billing address, ESTA
tracking number, and Pay.gov tracking numbers, to CDCDS. Pay.gov also
sends a daily batch file with the necessary payment information to
Fifth Third Bank for settlement processing. After processing, Fifth
Third Bank sends a settlement file, including the full credit card
number, authorization number, card type, transaction date, amount, and
ESTA tracking number to CDCDS. Once ESTA receives confirmation from
Pay.gov that the payment has been processed successfully, ESTA will
retain the Pay.gov tracking number for payment reconciliation purposes.
As CBP enhances and updates ESTA, CBP anticipates amending its
application to include the applicant's country of birth, which will
assist in reducing false matches during the vetting process.
DHS is updating the categories of records and routine uses for this
system of records notice to permit the collection and use of a Pay.gov
tracking number associated with the applicant's payment information,
including billing name, billing address, and credit card information
for the newly-required application fee, and the applicant's country of
birth, which will assist in reducing false matches during the vetting
process. Additionally, this update includes a routine use permitting
the sharing of payment information with the Department of the
Treasury's Pay.gov Web site.
DHS changed the order of routine uses to be consistent across all
DHS SORNs and for ease of use by DHS personnel. This change impacts the
following uses, which were not substantially changed. Former routine
use G, which addressed certain governmental agencies' responsibility
for, in part, investigating and enforcing civil or criminal laws, was
eliminated because of redundancy. Former routine use L is now routine
use K, which clarifies the sharing that takes place with the
intelligence community. The TPA requires CBP to include the collection
of an application fee for each application submitted. Accordingly,
routine use P was added to explicitly allow for payment processing and
reconciliation activities. Routine use Q was also added.
The Department of Homeland Security issued a Final Rule for this
system of records in the Federal Register (74 FR 45069) on August 31,
2009. This SORN update does not change the nature of reasons for this
system of records or the need for the exemptions to certain aspects of
the Privacy Act. This newly-updated system will be included in the
Department of Homeland Security's inventory of record systems.
The purpose of this system of records is to determine the
eligibility of aliens to travel to the U.S. by air or sea under the
VWP. DHS/CBP has authority to operate this system under the Homeland
Security Act of 2002, Public Law 107-296; 5 U.S.C. 301 and Section 711
of the Implementing Recommendations of the 9/11 Commission Act of 2007
(9/11 Act) (Pub. L. 110-53); and the Travel Promotion Act (Pub. L. 111-
145). Updates to this system include the collection of additional
information, and DHS/CBP has set in place processes and agreements to
safeguard the additional data collected. New routine uses included in
this update primarily relate to the addition of payment information and
allow for processing of such information, which is directly compatible
with the purpose for which the information was collected. Additional
routine uses were edited to align with standards across DHS SORNs for
ease of use and understanding by DHS personnel.
Consistent with DHS's information sharing mission, information
stored in ESTA may be shared with other DHS components, as well as
appropriate Federal, state, local, tribal, foreign, or international
government agencies. This sharing will only take place after DHS
determines that the receiving component or agency has a need to know
the information to carry out national security, law enforcement,
immigration, intelligence, or other functions consistent with the
routine uses set forth in this system of records notice.
II. Privacy Act
The Privacy Act embodies fair information principles in a statutory
framework governing the means by which the United States Government
collects, maintains, uses, and disseminates 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 for which information is retrieved by the name of
an 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 United States citizens and lawful
permanent residents. As a matter of policy, DHS extends administrative
Privacy Act protections to all individuals where systems of records
maintain information on U.S. citizens, lawful permanent residents, and
visitors. Individuals may request access to their own records that are
maintained in a system of records in the possession
[[Page 67753]]
or under the control of DHS by complying with DHS Privacy Act
regulations, 6 CFR part 5.
The Privacy Act requires each agency to publish in the Federal
Register a description denoting the type and character of each system
of records that the agency maintains, and the routine uses that are
contained in each system in order to make agency record keeping
practices transparent, to notify individuals regarding the uses to
which their records are put, and to assist individuals to more easily
find such files within the agency. Below is the description of the
Department of Homeland Security, U.S. Customs and Border Protection,
DHS/CBP-009--Electronic System for Travel Authorization (ESTA) system
of records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of
this system of records to the Office of Management and Budget and to
Congress.
System of Records
Department of Homeland Security (DHS)/Customs and Border Protection
(CBP)-009
System name:
DHS/CBP-009 Electronic System for Travel Authorization (ESTA).
Security classification:
Unclassified.
System location:
Records are maintained in the ESTA system at the U.S. Customs and
Border Protection (CBP) Headquarters in Washington, DC and field
offices.
Categories of individuals covered by the system:
Categories of individuals covered by this system include foreign
nationals from VWP countries who are seeking to enter the United States
by air or sea under the VWP. Under the Immigration and Nationality Act
(INA), title 8 of the United States Code, these persons are required to
report their arrival and departure to and from the United States. This
system only collects information pertaining to persons in nonimmigrant
status, that is, persons who are not covered by the protections of the
Privacy Act at the time they provide their information. However, given
the importance of providing privacy protections to international
travelers, DHS has decided to apply the privacy protections and
safeguards outlined in this notice to all international travelers
subject to ESTA.
Categories of records in the system:
Categories of records in this system include:
Full Name (First, Middle, and Last)
Date of birth
Gender
Email Address
Phone Number
Travel document type (e.g., passport), number, issuance
date, expiration date and issuing country
Country of Citizenship
ESTA Application Number
Pay.gov Payment Tracking Number (i.e., confirmation of
payment; absence of payment confirmation will result in a ``not
cleared'' determination)
Country of Birth
Date of Anticipated Crossing
Airline and Flight Number
City of Embarkation
Address while visiting the United States (Number, Street,
City, State)
Whether the individual has a communicable disease,
physical or mental disorder, or is a drug abuser or addict
Whether the individual has been arrested or convicted for
a moral turpitude crime, drug possession or use, or has been sentenced
for a period longer than five years
Whether the individual has engaged in espionage, sabotage,
terrorism or Nazi activity between 1933 and 1945
Whether the individual is seeking work in the U.S.
Whether the individual has been excluded or deported, or
attempted to obtain a visa or enter U.S. by fraud or misrepresentation
Whether the individual has ever detained, retained, or
withheld custody of a child from a U.S. citizen granted custody of the
child
Whether the individual has ever been denied a U.S. visa or
entry into the U.S., or had a visa cancelled. (If yes, when and where)
Whether the individual has ever asserted immunity from
prosecution
Any change of address while in the U.S.
Authority for maintenance of the system:
The Homeland Security Act of 2002, Public Law 107-296; 5 U.S.C. 301
and Section 711 of the Implementing Recommendations of the 9/11
Commission Act of 2007 (9/11 Act), (Pub. L. 110-53); and the Travel
Promotion Act (Pub. L. 111-145).
Purpose(s):
The purpose of this system is to collect and maintain a record of
nonimmigrant aliens who want to travel to the United States under the
Visa Waiver Program, and to determine whether applicants are eligible
to travel to the United States under the VWP by screening their
information against various security and law enforcement databases.
The Pay.gov tracking number (associated with the payment
information provided to Pay.gov and stored in CDCDS) will be used to
process ESTA and TPA fees and to reconcile issues regarding payment
between ESTA, CDCDS, and Pay.gov. Payment information will not be used
for vetting purposes and is stored in a separate system (CDCDS) from
the ESTA application data.
Routine uses of records maintained in the system, including categories
of users and the purposes of such uses:
In addition to those disclosures generally permitted under 5 U.S.C.
552a(b) of the Privacy Act, all or a portion of the records or
information contained in this system may be disclosed outside DHS as a
routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (including United States Attorney
Offices) or other Federal agency conducting litigation or in
proceedings before any court, adjudicative or administrative body, when
it is necessary to the litigation and one of the following is a party
to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee of DHS in his/her official capacity;
3. Any employee of DHS in his/her individual capacity where DOJ or
DHS has agreed to represent the employee; or
4. The United States or any agency thereof, is a party to the
litigation or has an interest in such litigation, and DHS determines
that the records are both relevant and necessary to the litigation and
the use of such records is compatible with the purpose for which DHS
collected the records.
B. To a congressional office from the record of an individual in
response to an inquiry from that congressional office made at the
request of the individual to whom the record pertains.
C. To the National Archives and Records Administration or other
Federal government agencies pursuant to records management inspections
being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of
performing audit or oversight operations as authorized by law, but only
such information as is necessary and relevant to such audit or
oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or
confidentiality of
[[Page 67754]]
information in the system of records has been compromised;
2. The Department has determined that as a result of the suspected
or confirmed compromise there is a risk of harm to economic or property
interests, identity theft or fraud, or harm to the security or
integrity of this system or other systems or programs (whether
maintained by DHS or another agency or entity) or harm to the
individual that rely upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is
reasonably necessary to assist in connection with DHS's efforts to
respond to the suspected or confirmed compromise and prevent, minimize,
or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants,
and others performing or working on a contract, service, grant,
cooperative agreement, or other assignment for DHS, when necessary to
accomplish an agency function related to this system of records.
Individuals provided information under this routine use are subject to
the same Privacy Act requirements and limitations on disclosure as are
applicable to DHS officers and employees.
G. To an appropriate Federal, state, tribal, local, international,
or foreign law enforcement agency or other appropriate authority
charged with investigating or prosecuting a violation or enforcing or
implementing a law, rule, regulation, or order, where a record, either
on its face or in conjunction with other information, indicates a
violation or potential violation of law, which includes criminal,
civil, or regulatory violations and such disclosure is proper and
consistent with the official duties of the person making the
disclosure.
H. To appropriate Federal, state, local, tribal, or foreign
governmental agencies or multilateral governmental organizations for
the purpose of protecting the vital health interests of a data subject
or other persons (e.g.; to assist such agencies or organizations in
preventing exposure to or transmission of a communicable or
quarantinable disease or to combat other significant public health
threats; appropriate notice will be provided of any identified health
threat or risk);
I. To third parties during the course of a law enforcement
investigation to the extent necessary to obtain information pertinent
to the investigation, provided disclosure is appropriate to the proper
performance of the official duties of the officer making the
disclosure;
J. To a Federal, state, tribal, local, international, or foreign
government agency or entity for the purpose of consulting with that
agency or entity: (1) To assist in making a determination regarding
redress for an individual in connection with the operations of a DHS
component or program; (2) for the purpose of verifying the identity of
an individual seeking redress in connection with the operations of a
DHS component or program; or (3) for the purpose of verifying the
accuracy of information submitted by an individual who has requested
such redress on behalf of another individual;
K. To Federal and foreign government intelligence or
counterterrorism agencies when DHS reasonably believes such use is to
assist in counterterrorism efforts, and disclosure is appropriate to
the proper performance of the official duties of the person making the
disclosure;
L. To the Department of State in the processing of petitions or
applications for benefits under the Immigration and Nationality Act,
and all other immigration and nationality laws including treaties and
reciprocal agreements;
M. To an organization or individual in either the public or private
sector, either foreign or domestic, where there is a reason to believe
that the recipient is or could become the target of a particular
terrorist activity or conspiracy, to the extent the information is
relevant to the protection of life or property and disclosure is
appropriate to the proper performance of the official duties of the
person making the disclosure;
N. To the carrier transporting an individual to the United States,
but only to the extent that CBP provides information that the ESTA
status is not applicable to the traveler, or, if applicable, that the
individual is authorized to travel, not authorized to travel, pending,
or has not applied.
O. To Pay.gov, for payment processing and payment reconciliation
purposes.
P. To the news media and the public, with the approval of the Chief
Privacy Officer in consultation with counsel, when there exists a
legitimate public interest in the disclosure of the information or when
disclosure is necessary to preserve confidence in the integrity of DHS
or is necessary to demonstrate the accountability of DHS's officers,
employees, or individuals covered by the system, except to the extent
it is determined that release of the specific information in the
context of a particular case would constitute an unwarranted invasion
of personal privacy.
Disclosure to consumer reporting agencies:
None.
Policies and practices for storing, retrieving, accessing, retaining,
and disposing of records in the system:
Storage:
Records in this system are stored electronically or on paper in
secure facilities in a locked drawer behind a locked door. The records
are stored on magnetic disc, tape, digital media, and CD-ROM.
Retrievability:
These records may be retrieved by any of the data elements supplied
by the applicant. The payment information and Pay.gov payment tracking
number may be used to track the amount of payment associated with an
ESTA application and to reconcile payment discrepancies. As CBP updates
and enhances ESTA, applicants will be able to access their ESTA
information to view and amend their applications by providing their
ESTA number and passport number. Once they have provided their ESTA
number and passport number, applicants may view their ESTA status
(authorized to travel, not authorized to travel, pending) and submit
limited updates to their travel itinerary information. If an applicant
does not know his/her application number, he/she can provide his or her
passport number, date of birth, and passport issuing country to
retrieve his/her application number.
Safeguards:
Records in this system are safeguarded in accordance with
applicable rules and policies, including all applicable DHS automated
systems security and access policies. Strict controls have been imposed
to minimize the risk of compromising the information that is being
stored. Access to the computer system containing the records in this
system is limited to those individuals who have a need to know the
information for the performance of their official duties and who have
appropriate clearances or permissions.
Retention and disposal:
Application information submitted to ESTA generally expires and is
deemed ``inactive'' two years after the initial submission of
information by the applicant. In the event that a traveler's passport
remains valid for less than two years from the date of the ESTA
approval, the ESTA will expire concurrently with the passport.
Information in ESTA will be retained for one year after the ESTA
expires. After
[[Page 67755]]
this period, the inactive account information will be purged from
online access and archived for 12 years. Data linked at any time during
the 15 year retention period (3 years active, 12 years archived), to
active law enforcement lookout records, CBP matches to enforcement
activities, and/or investigations or cases, including applications for
ESTA that are denied, will remain accessible for the life of the law
enforcement activities to which they may become related. NARA
guidelines for retention and archiving of data will apply to ESTA and
CBP is in negotiation with NARA for approval of the ESTA data retention
and archiving plan.
Payment information is not stored in ESTA, but is forwarded to
Pay.gov and stored in CBP's financial processing system, CDCDS,
pursuant to the DHS/CBP-018, CDCDS system of records notice.
The ESTA has allowed for the automation of the paper I-94W form in
the air and sea environment. In those instances where a VWP traveler is
admitted using the automated process, the corresponding admission
record will be maintained in accordance with the retention schedule for
I-94W, which is 75 years. I-94W and I-94 data are maintained for this
period of time in order to ensure that the information related to a
particular admission to the United States is available for providing
any applicable benefits related to immigration or other enforcement
purposes.
System Manager and address:
Director, Office of Automated Systems, U.S. Customs and Border
Protection Headquarters, 1300 Pennsylvania Avenue NW., Washington, DC
20229.
Notification procedure:
The Secretary of Homeland Security has exempted portions of this
system from the notification, access, and amendment procedures of the
Privacy Act because it is a law enforcement system. However, CBP will
consider individual requests to determine whether or not information
may be released. Thus, individuals seeking notification of and access
to any record contained in this system of records, or seeking to
contest its content, may submit a request in writing to the
Headquarters or component's FOIA Officer, whose contact information can
be found at http://www.dhs.gov/foia under ``contacts.'' If an
individual believes more than one component maintains Privacy Act
records concerning him or her the individual may submit the request to
the Chief Privacy Officer, Department of Homeland Security, 245 Murray
Drive SW., Building 410, STOP-0655, Washington, DC 20528.
When seeking records about yourself from this system of records or
any other Departmental system of records your request must conform with
the Privacy Act regulations set forth in 6 CFR part 5. You must first
verify your identity, meaning that you must provide your full name,
current address and date and place of birth. You must sign your
request, and your signature must either be notarized or submitted under
28 U.S.C. 1746, a law that permits statements to be made under penalty
of perjury as a substitute for notarization. While no specific form is
required, you may obtain forms for this purpose from the Director,
Disclosure and FOIA, http://www.dhs.gov or 1 (866) 431-0486. In
addition you should provide the following:
An explanation of why you believe the Department would
have information on you,
Identify which component(s) of the Department you believe
may have the information about you,
Specify when you believe the records would have been
created,
Provide any other information that will help the FOIA
staff determine which DHS component agency may have responsive records,
If your request is seeking records pertaining to another
living individual, you must include a statement from that individual
certifying his/her agreement for you to access his/her records.
Without this bulleted information, the component(s) may not be able
to conduct an effective search, and your request may be denied due to
lack of specificity or lack of compliance with applicable regulations.
Record access procedures:
See ``Notification procedure'' above.
Contesting record procedures:
See ``Notification procedure'' above.
Record source categories:
The system obtains information from the online ESTA application
submitted by the applicant. This information is processed by the
Automated Targeting System (ATS) to screen for terrorists or threats to
aviation and border security and TECS (for matches to persons
identified to be of law enforcement interest), and result of
``authorized to travel,'' ``not authorized to travel,'' or ``pending''
is maintained in ESTA. ``Pending'' will be resolved to ``authorized to
travel'' or ``not authorized to travel'' based on further research by
CBP. Pay.gov provides the Pay.gov tracking number once payment
information has been forwarded to it and processed. It is used to
reconcile payments between ESTA, CDCDS, and Pay.gov.
Exemptions claimed for the system:
No exemption shall be asserted 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). Information in the system may be shared with law
enforcement and/or intelligence agencies pursuant to the above routine
uses. 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 or intelligence agencies has sought particular
records may affect ongoing law enforcement or intelligence activity. As
such, pursuant to 5 U.S.C. 552a(j)(2) and (k)(2), DHS will claim
exemption from (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as
amended, as is necessary and appropriate to protect this information.
Dated: October 3, 2011.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2011-28405 Filed 11-1-11; 8:45 am]
BILLING CODE 9110-06-P