[Federal Register Volume 78, Number 13 (Friday, January 18, 2013)]
[Proposed Rules]
[Pages 4079-4081]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00800]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 78, No. 13 / Friday, January 18, 2013 / 
Proposed Rules

[[Page 4079]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS 2012-0076]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Customs and Border Protection--002 Global 
Enrollment System (GES), System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Department of Homeland Security is giving concurrent 
notice of an updated 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 Global Enrollment System (GES), 
System of Records'' and this proposed rulemaking. In this proposed 
rulemaking, the Department 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 February 19, 2013.

ADDRESSES: You may submit comments, identified by docket number DHS 
2012-0076, 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: 
Laurence Castelli, (202) 325-0280, CBP Privacy Officer, U.S. Customs 
and Border Protection, Mint Annex, 799 Ninth Street 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

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) U.S. Customs and Border 
Protection (CBP) proposes to exempt portions of a current DHS system of 
records titled, ``DHS/CBP-002 Global Enrollment System (GES)'' system 
of records.
    Global Entry (GE) is the DHS/CBP program that enables CBP to 
expedite the inspection and security process for lower risk travelers 
and allows more scrutiny for those travelers who present an unknown 
risk. GE, previously a pilot program, is now a permanent trusted 
traveler program (77 FR 5681 (Feb. 6, 2012)). Under GE, expedited 
processing into the United States and certain foreign countries will be 
expanded through a growing number of participating U.S. and foreign 
international airports and foreign partnerships. Through such 
partnerships, U.S. citizens and citizens of certain foreign countries 
will be able to apply for expedited processing at their respective 
airports.
    CBP has signed a number of joint statements with foreign partners 
that provide the basic framework for allowing U.S. citizens and 
citizens of the applicable foreign countries to apply for expedited 
processing at their respective airports. The general purpose of the 
joint statement is to offer expedited processing to U.S. citizens and 
the citizens of the foreign country that is party to that joint 
statement, based on a mutually determined set of vetting criteria and 
standards. CBP continues to work with government border authorities in 
various countries to create this growing international network in 
which, once individuals are screened and deemed trusted by the 
authorities in their own country, the other country in the alliance 
will accept them in their respective national trusted traveler 
programs.
    In addition to new foreign partners, CBP has consolidated the 
registered traveler programs under GES to include the Small Vessel 
Reporting System (SVRS) and the Decal and Transponder Online 
Procurement System (DTOPS). SVRS, as an enhancement to the Local Boater 
Option (LBO) pilot program, allows individuals with advance submission 
and CBP approval of float plans to use a designated telephone line to 
notify a CBP officer of their arrival to the United States. DTOPS is a 
registered traveler program that allows individuals to purchase, renew, 
or transfer user fees related to the transponders/Radio Frequency 
Identification (RFID) tags for their commercial vehicles or to the 
decals for their private aircraft or vessels in advance of crossing a 
U.S. border.
    The system of records notice is being re-published to update the 
categories of records, authorities, purposes, routine uses, 
retrievability, retention and disposal, notification procedures, record 
sources, and Privacy Act exemptions for the system of records. 
Specifically, DHS is updating the category of records to clarify that 
GES maintains limited law enforcement information, consisting of the 
case number references to law enforcement databases used to support or 
deny the membership decision for GES trusted traveler programs, as well 
as the membership decision for trusted traveler programs with foreign 
partners. These results were previously covered by the DHS/CBP-011 TECS 
SORN (73 FR 77778 (Dec. 19, 2008.) DHS/CBP is also retaining the fact 
of the other foreign governments' decisions either to approve or deny 
an application, pursuant to the applicable joint statements.
    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.

[[Page 4080]]

    The Secretary of Homeland Security, pursuant to 5 U.S.C. 
552a(j)(2), has exempted the law enforcement related records, including 
the pointer information to other law enforcement databases that support 
the DHS/CBP membership decision, and the law enforcement risk 
assessment worksheet that have been created during the background check 
and vetting process, from the following provisions of the Privacy Act: 
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)(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). In 
addition, when a record contains information from other exempt systems 
of records, DHS/CBP will claim the same exemptions for that record as 
are claimed for the original systems of records, and will claim any 
additional exemptions provided here.
    CBP will not assert any exemptions with regard to accessing or 
amending an individual's application data and final membership 
determination in the trusted traveler program. However, this data may 
be shared with law enforcement and/or intelligence agencies pursuant to 
the routine uses identified in this SORN. The Privacy Act requires DHS 
maintain an accounting of such disclosures made pursuant to all routine 
uses. Disclosing the fact that a law enforcement and/or intelligence 
agency has sought particular records may affect ongoing law enforcement 
activity. As such, the Secretary of Homeland Security pursuant to 5 
U.S.C. 552a (j)(2) and (k)(2), will claim an exemption from (c)(3), 
(e)(8), and (g)(1) of the Privacy Act, as is necessary and appropriate 
to protect this information. The updated system will be included in 
DHS's inventory of record systems.

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 personally 
identifiable information. 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. As a matter of 
policy, DHS extends administrative Privacy Act protections to all 
individuals when systems of records maintain information on U.S. 
citizens, lawful permanent residents, and visitors.
    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.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/CBP--002 GES. Some information in DHS/CBP--002 GES 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/CBP--002 GES 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 authority citation for Part 5 continues to read as follows:

    Authority: Pub. L. 107-296, 116 Stat. 2135; (6 U.S.C. 101 et 
seq.); 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 ``68'', to read as 
follows:

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

* * * * *
    68. The DHS/U.S. Customs and Border Protection (CBP)--002 Global 
Enrollment System (GES) system of records consists of electronic and 
paper records and will be used by DHS and its components. The DHS/
CBP-002 GES 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 expedited 
processing at designated U.S. border ports of entry. The DHS/CBP-002 
GES 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 the law enforcement related records, 
including the pointer information to other law enforcement databases 
that support the DHS/CBP membership decision, and the law 
enforcement risk assessment worksheet that have been created during 
the background check and vetting process from the following 
provisions of the Privacy Act: 5 U.S.C. 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).
    CBP will not assert any exemptions with regard to accessing or 
amending an individual's application data in a trusted or registered 
traveler program and/or final membership determination in the 
trusted traveler programs. However, this data may be shared with law 
enforcement and/or intelligence agencies pursuant to the published 
routine uses in the system of records notice, DHS/CBP-002 GES. The 
Privacy Act requires DHS maintain an accounting of such disclosures 
made pursuant to all routine uses. Disclosing the fact that a law 
enforcement and/or intelligence agency has sought particular records 
may affect ongoing law enforcement 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. When a record received from another system has been 
exempted in that source system, 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.
    Exemptions from these particular subsections are justified, on a 
case-by-case

[[Page 4081]]

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.
    (b) From subsection (d) (Access 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)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.
* * * * *

    Dated: December 31, 2012.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2013-00800 Filed 1-17-13; 8:45 am]
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