80 FR 53019 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security U.S. Customs and Border Protection-DHS/CBP-020 Export Information System (EIS) System of Records System of Records

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary

Federal Register Volume 80, Issue 170 (September 2, 2015)

The Department of Homeland Security is giving concurrent notice for the newly established ``Department of Homeland Security/U.S. Customs and Border Protection--DHS/CBP-020, Export Information System, System of Records'' and this proposed rulemaking. This system of records will collect and maintain records on cargo exported from the United States, as well as information pertaining to the filer, transmitter, exporter, U.S. Principal Party in Interest (USPPI), freight forwarder, shipper, consignee, other U.S. authorized agent filing for the USPPI, and individuals related to the specific cargo that is the subject of the export transaction. In accordance with the Privacy Act of 1974 and this proposed rulemaking, the Department of Homeland Security concurrently 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.

[Federal Register Volume 80, Number 170 (Wednesday, September 2, 2015)]
[Proposed Rules]
[Pages 53019-53021]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-21674]


========================================================================
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. 80, No. 170 / Wednesday, September 2, 2015 / 
Proposed Rules

[[Page 53019]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2015-0053]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security U.S. Customs and Border Protection--DHS/CBP-020 
Export Information System (EIS) System of Records System of Records

AGENCY: Privacy Office, Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice for the newly established ``Department of Homeland Security/U.S. 
Customs and Border Protection--DHS/CBP-020, Export Information System, 
System of Records'' and this proposed rulemaking. This system of 
records will collect and maintain records on cargo exported from the 
United States, as well as information pertaining to the filer, 
transmitter, exporter, U.S. Principal Party in Interest (USPPI), 
freight forwarder, shipper, consignee, other U.S. authorized agent 
filing for the USPPI, and individuals related to the specific cargo 
that is the subject of the export transaction. In accordance with the 
Privacy Act of 1974 and this proposed rulemaking, the Department of 
Homeland Security concurrently 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 October 2, 2015.

ADDRESSES: You may submit comments, identified by docket number DHS-
2015-0053, 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: Karen L. Neuman, 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: 
John Connors (202-344-1610), CBP Privacy Officer, U.S. Customs and 
Border Protection, Department of Homeland Security, Washington, DC 
20229. For privacy issues please contact: Karen L. Neuman, (202-343-
1717), 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 establish a new DHS system of records 
titled, ``DHS/CBP-020 Export Information System (EIS) System of 
Records.'' The system of records is used by DHS/CBP to collect, use, 
and maintain paper and electronic records required to track, control, 
and process cargo exported from the United States. EIS allows CBP to 
enhance national security, enforce U.S. law, and facilitate legitimate 
international trade.
    DHS is issuing this Notice of Proposed Rulemaking to exempt this 
system of records from certain provisions of the Privacy Act. This 
system will be included in DHS's inventory of record systems. Elsewhere 
in the Federal Register, CBP is publishing a system of records notice 
(SORN) for EIS because the exporting community must report export data 
that contains personally identifiable information (PII) to CBP.
    Subsection (a) of Section 343 of the Trade Act of 2002 (19 U.S.C. 
2071) mandates that the Secretary of Homeland Security (formerly the 
Secretary of Treasury) collect cargo information ``through an 
electronic data interchange system,'' prior to the departure of the 
cargo from the United States by any mode of commercial transportation 
(see 19 U.S.C. 2071 note.) Pursuant to statute, CBP promulgated a 
regulation requiring pre-departure filing of electronic information to 
allow CBP to examine the data before cargo leaves the United States 
(see Electronic Information for Outward Cargo Required in Advance of 
Departure (19 CFR 192.14)). CBP required exporters to provide 
electronic cargo information through the Automated Export System (AES) 
to avoid redundancy as specifically mandated by Congress (see Mandatory 
Pre-Departure Filing of Export Cargo Information Through the Automated 
Export System, 73 FR 32466 (June 9, 2008)).
    To comply with the regulation, exporters must file the Electronic 
Export Information (EEI), formerly the Shipper's Export Declaration 
(SED) \1\ when the value of the commodity classified under each 
individual Schedule B number is over $2,500 or if a validated export 
license is required to export the commodity. The exporter is 
responsible for preparing the EEI and the carrier files it with CBP 
through the AES or AES Direct (operated by the U.S. Census Bureau). 
Cargo information collected by CBP includes PII such as a shipper's 
name, address, and Taxpayer Identification Number (TIN). According to 
the U.S. Census Bureau, in a standard export transaction, it is the 
U.S. Principal Party In Interest's (USPPI) responsibility to prepare 
the EEI. However, the USPPI can give the freight forwarder a power of 
attorney (POA) or written statement (WA) authorizing them to prepare 
and file the EEI on their behalf. In a routed export transaction, 
however, the Foreign Principal Party in Interest (FPPI) must provide a 
POA or WA to prepare the EEI to either the USPPI or a U.S. Authorized 
Agent.
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    \1\ 13 U.S.C. 301 (The Census Bureau root authority to collect 
the SED, now EEI); pursuant to section 303, CBP (then U.S. Customs 
Service, Dept. of Treasury) is required to develop an automated 
system for collecting this export data. Through title 13, the Census 
Bureau holds stewardship of export data. Under the Trade Act of 2002 
(19 U.S.C. 2071 note), CBP is required to collect an export manifest 
containing a declaration identifying the parties to the transaction, 
a physical description of the commodity, its quantity, mode of 
conveyance, and ports of origin and destination. Through title 19, 
CBP, similarly, holds stewardship of export data.

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[[Page 53020]]

    The Internal Transaction Number (ITN) or exemption citation must be 
provided by the EEI filer to the carrier when the goods are presented 
for export. The carrier is responsible for providing the ITN or 
exemption citation to CBP. CBP Officers will verify that the ITN or 
exemption citations clearly stated on export documents and provided to 
the carrier(s) within the prescribed timeframes. The procedures for 
filing vary by cargo type (vessel, truck, air, or rail). The timeframes 
for filing varies according to the method of transportation for pre-
departure filing (State Department United States Munitions List (USML) 
shipments, and non-USML shipments).
    DHS/CBP is publishing this system of records notice to provide 
notice of the records maintained by CBP concerning individuals who 
participate in exporting goods from the United States. CBP previously 
published a Privacy Impact Assessment (PIA) for EIS last year.\2\
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    \2\ http://www.dhs.gov/publication/export-information-system-eis.
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    Consistent with DHS's information-sharing mission, information 
stored in the DHS/CBP-020 EIS 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, 
information may be shared with appropriate federal, state, local, 
tribal, territorial, foreign, or international government agencies or 
other parties consistent with the routine uses set forth in this SORN. 
In particular, information may be shared with the Department of 
Commerce, Bureau of Industry and Science, and the Department of State, 
Office of Defense Trade Controls, relating to compliance and 
enforcement of licenses issued by these respective agencies concerning 
the controlled nature or sensitive technology present in the exported 
commodities (e.g., certain central processing unit designs, weapons 
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 
persons where systems of records maintain information on U.S. citizens, 
lawful permanent residents, and non-immigrant aliens.
    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-020 Export Information System, System of Records.
    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 from the United States, nor shall an 
exemption be asserted with respect to the resulting determination 
(authorized to travel, not authorized to travel, pending).
    Some information in DHS/CBP-020 EIS System of Records relates to 
official DHS national security, law enforcement, and intelligence 
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 for 
information pertaining to the accounting of disclosures made from this 
system to other law enforcement or intelligence agencies (federal, 
state, local, foreign, international, or tribal) in accordance with the 
published routine uses or statutory basis for disclosure pursuant to 5 
U.S.C. 552a(b). The exemptions will preclude subjects from frustrating 
official national security, law enforcement, or intelligence processes. 
Disclosure of information to the subject of the inquiry could also 
permit the subject to avoid detection or apprehension.
    In appropriate circumstances, where 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-020 EIS 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. Add, at the end of appendix C to part 5, paragraph 74 to read as 
follows:

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

* * * * *
    74. DHS/CBP-020 Export Information System (EIS). A portion of 
the following system of records is exempt from 5 U.S.C. 552a(c)(3), 
(e)(8), and (g)(1) pursuant to 5 U.S.C. 552a(j)(2), and from 5 
U.S.C. 552a(c)(3) pursuant to 5 U.S.C. 552a(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 from 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 is may 
impede a law enforcement, intelligence activities and national 
security investigation:
    (a) From subsection (c)(3) (Accounting for Disclosures) 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

[[Page 53021]]

those investigations when not previously known.
    (c) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.

    Dated: August 19, 2015.
Karen L. Neuman,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2015-21674 Filed 9-1-15; 8:45 am]
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