E8-29839. Privacy Act of 1974: Implementation of Exemptions; U.S. Customs and Border Protection-015 Automated Commercial System

AGENCY:

Privacy Office, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Homeland Security is amending its regulations to exempt portions of a system of records from certain provisions of the Privacy Act. Specifically, the Department proposes to exempt portions of the CBP Automated Commercial System (ACS) from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

DATES:

The public is invited to submit comments by January 20, 2009.

ADDRESSES:

You may submit comments, identified by docket number DHS-2008-0195 by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: [phone].
• Mail: Hugo Teufel III, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT:

For general questions please contact: Laurence E. Castelli (202-325-0280), Chief, Privacy Act Policy and Procedures Branch, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 1300 Pennsylvania Ave., NW., Washington, DC 20229. For privacy issues please contact: Hugo Teufel III (703-235-0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

Background

The Department of Homeland Security (DHS), elsewhere in this edition of the Federal Register, published a Privacy Act system of records notice describing records in the Automated Commercial System (ACS).

To help prevent terrorist weapons from being transported to the United States, vessel carriers bringing cargo to the United States are required to transmit certain information to Customs and Border Protection (CBP) about the cargo they are transporting prior to lading that cargo at foreign ports of entry. CBP is issuing an interim final rule that requires both importers and carriers to submit additional information pertaining to cargo to CBP before the cargo is brought into the United States by vessel. This information must be submitted to CBP by way of a CBP-approved electronic data interchange system. The required information is necessary to improve CBP's ability to identify high-risk shipments so as to prevent smuggling and ensure cargo safety and security, as required by section 203 of the Security and Accountability for Every (SAFE) Port Act of 2006 and section 343(a) of the Trade Act of 2002, as amended by the Maritime Transportation Security Act of 2002.

The proposed rule was known to the trade as both the “Importer Security Filing proposal” and the “10 + 2 proposal.” The name “10 + 2” is shorthand for the number of advance data elements CBP was proposing to collect. Carriers would be generally required to submit two additional data elements—a vessel stow plan and container status messages regarding certain events relating to containers loaded on vessels destined to the United States—to the elements they are already required to electronically transmit in advance (the “2” of “10 + 2”); and importers, as defined in the proposed regulations, would be required to submit ten data elements—an Importer Security Filing containing ten data elements (the “10” of “10 + 2”).

The Automated Commercial System (ACS) is the comprehensive system used by U.S. Customs and Border Protection to track, control, and process all commercial goods imported into the United States. ACS is a sophisticated and integrated large-scale business-oriented system which employs multiple modules to perform discrete aspects of its functionality: including receiving data transmissions from a variety of parties involved in international commercial transactions, and providing CBP with the capability to track both the transport transactions and the financial transactions associated with the movement of merchandise through international commerce. Through the use of Electronic Data Interchange (EDI), ACS facilitates merchandise processing, significantly cuts costs, and reduces paperwork requirements for both Customs and the importing community.

ACS has two principal methods for electronic data interchange, the Automated Broker Interface (ABI) and the Automated Manifest System (AMS). Under the “10 + 2” program, importers who submit the Importer Security Filing (ISF), will use either ABI or Vessel AMS to provide their information to CBP. ACS, upon receipt of the ISF, will transfer the data to the Automated Targeting System (ATS) for screening and targeting purposes. Once screened the ISF data will be returned with embedded targeting links to ACS to be maintained in accordance with the ACS stated retention policy.

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, nor shall an exemption be asserted with respect to the resulting determination (authorized to travel, not authorized to travel, pending).

This system may contain records or information pertaining to the accounting of disclosures made from ACS to other law enforcement agencies (Federal, State, local, foreign, international, or tribal) in accordance with the published routine uses. For the accounting of these disclosures only, in accordance with 5 U.S.C. 552a(j)(2) and (k)(2), DHS will claim the original exemptions for these records or information from subsection (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as necessary and appropriate to protect such information. Moreover, DHS will add this exemption to Appendix C to 6 CFR part 5, DHS Systems of Records Exempt from the Privacy Act. Such exempt records or information may be law enforcement or national security investigation records, law enforcement activity and encounter records, or terrorist screening records.

DHS needs these exemptions in order to protect information relating to law enforcement investigations from disclosure to subjects of investigations and others who could interfere with investigatory and law enforcement activities. Specifically, the exemptions are required to: Preclude subjects of investigations from frustrating the investigative process; avoid disclosure of investigative techniques; protect the identities and physical safety of confidential informants and of law enforcement personnel; ensure DHS's and other federal agencies' ability to obtain information from third parties and other sources; protect the privacy of third parties; and safeguard sensitive information.

Nonetheless, DHS will examine each request on a case-by-case basis, and, after conferring with the appropriate component or agency, may waive applicable exemptions in appropriate circumstances and where it would not appear to interfere with or adversely affect the law enforcement or national security investigation.

Again, DHS will not assert any exemption with respect to information maintained in the system that is collected from a person and submitted by that person's air or vessel carrier, if that person, or his or her agent, seeks access or amendment of such information.

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

1. The authority citation for Part 5 continues to read as follows:

Authority: Public Law 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.

2. At the end of Appendix C to Part 5, add the following new paragraph “14”:

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

* * * * *

14. DHS/CBP-015, Automated Commercial System (ACS). A portion of the following system of records is exempt from 5 U.S.C. 552a(c)(3), (e)(8), and (g) pursuant to 5 U.S.C. 552a(j)(2) and (k)(2). Further, 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 (approval or denial). After conferring with the appropriate component or agency, DHS may waive applicable exemptions in appropriate circumstances and where it would not appear to interfere with or adversely affect the law enforcement purposes of the systems from which the information is recompiled or in which it is contained. Exemptions from the above particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, when information in this system of records may impede a law enforcement or national security investigation:

(a) From subsection (c)(3) (Accounting for Disclosure) because making available to a record subject the accounting of disclosures from records concerning him or her would specifically reveal any investigative interest in the individual. Revealing this information could reasonably be expected to compromise ongoing efforts to investigate a violation of U.S. law, including investigations of a known or suspected terrorist, by notifying the record subject that he or she is under investigation. This information could also permit the record subject to take measures to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid or impede the investigation.

(b) From subsection (e)(8) (Notice on Individuals) because to require individual notice of disclosure of information due to compulsory legal process would pose an impossible administrative burden on DHS and other agencies and could alert the subjects of counterterrorism or law enforcement investigations to the fact of those investigations when not previously known.

(c) From subsection (g) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.

Dated: December 10, 2008.

Hugo Teufel III,

Chief Privacy Officer, Department of Homeland Security.