[Federal Register: June 10, 2008 (Volume 73, Number 112)]
[Notices]
[Page 32720-32724]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn08-57]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
[DHS-2008-0052]
Privacy Act of 1974; Department of Homeland Security, U.S.
Customs and Border Protection--Electronic System for Travel
Authorization (ESTA), Systems of Records
AGENCY: Privacy Office; Office of the Secretary; DHS.
ACTION: Notice of Privacy Act system of records.
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SUMMARY: To provide notice and transparency to the public, the
Department of Homeland Security, U.S. Customs and Border Protection
announces a new Privacy Act system of records, the Electronic System
for Travel Authorization, to collect and maintain a record of
nonimmigrant aliens who want to travel to the United States under the
Visa Waiver Program (VWP). This new system will determine whether the
applicant is eligible to travel to the United States under the VWP by
checking their information against various security and law enforcement
databases. CBP is publishing a new system of records notice to permit
the traveling public greater access to individual information and to
provide a more complete understanding of how and where information
pertaining to them is collected and maintained.
DATES: In accordance with 5 U.S.C. 552a(e)(4) and (11), the public is
given a 30-day period in which to comment on this notice; and the
Office of Management and Budget (OMB), which has oversight
responsibility under the Act, requires a 40-day period in which to
conclude its review of the system. Therefore, the public, OMB, and
Congress are invited to submit comments by July 21, 2008.
ADDRESSES: You may submit comments, identified by DHS-2008-0052 by one
of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 1-866-466-5370.
Mail: Hugo Teufel III, Chief Privacy Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528.
[[Page 32721]]
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 (202-572-8790), Chief, Privacy Act Policy and
Procedures Branch, U.S. Customs and Border Protection, Office of
International Trade, Regulations & Rulings, Mint Annex, 1300
Pennsylvania Ave., NW., Washington, DC 20229. For privacy issues
contact: Hugo Teufel III (703-235-0780), Chief Privacy Officer, Privacy
Office, U.S. Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The priority mission of U.S. Customs and Border Protection (CBP) is
to prevent terrorists and terrorist weapons from entering the country
while facilitating legitimate travel and trade. Upon arrival in the
United States, all individuals crossing the border are required to
clear CBP. As part of this clearance process, CBP reserves the right to
verify the identity, nationality, and determine admissibility of
persons traveling to the United States and to create records to assist
in this process. Similarly, CBP has authority to keep records of
departures from the United States.
CBP does not require that qualifying nationals of countries
participating in the VWP present a visa upon their application for
admission at a United States port of entry as a nonimmigrant visitor
for a period of 90 days or less. As required by Section 711 of the
Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11
Act), DHS/CBP will be implementing an Electronic System for Travel
Authorization (ESTA) in order to determine, in advance of departure,
whether a traveler is eligible to travel to the United States under the
VWP and whether such travel poses a law enforcement or security risk.
Applicants under this program will electronically provide
information via an online application prior to traveling to the United
States by air or sea. ESTA will store that information in an account.
The individual will have the opportunity to verify the accuracy of the
information entered in ESTA during the application process and before
the application is submitted through ESTA. Applicants will be given a
tracking number which, combined with some personal information already
provided to the system, will allow the applicant to submit updates to
data elements that do not affect their admissibility, or apply for a
new ESTA.
Once an applicant has submitted the required information to ESTA,
the information supplied by the applicant will be used to automatically
query terrorist and law enforcement databases to determine whether the
applicant is eligible to travel to the United States under the VWP.
When possible matches to derogatory information are found, applications
will be vetted through normal CBP procedures. During this time, the
applicant will receive a ``pending'' status. If the applicant is
cleared to travel under the VWP, he or she will receive an ``authorized
to travel'' status via the ESTA Web site. If the applicant is not
cleared for travel, the applicant will receive a ``not authorized to
travel'' status and be directed to the State Department Web site to
obtain information on how to apply for a visa at a U.S. consulate or
embassy. The Department of State will have access to the information
supplied by the applicant and the ESTA results to assist in determining
whether to issue a visa.
Carriers, when querying the applicant through the Advance Passenger
Information System/APIS Quick Query (APIS/AQQ) system to determine
whether a boarding pass should be issued, will be notified whether the
applicant traveler has been authorized to travel, not authorized to
travel, pending, or has not applied for an ESTA. VWP travelers must
have an authorized ESTA or a visa to be issued a boarding pass.
In conjunction with CBP's final rule ``Advance Electronic
Transmission of Passenger and Crew Member Manifests for Commercial
Aircraft and Vessels,'' which was published in the Federal Register on
August 23, 2007 (and became effective on February 19, 2008), DHS has
been coordinating with commercial aircraft and commercial vessel
carriers on the development and implementation of messaging
capabilities for passenger data transmissions that will enable DHS to
provide the carriers with messages pertaining to a passenger's boarding
status. A prospective VWP traveler's ESTA status is a component of a
passenger's boarding status that has been introduced into the plans for
implementing messaging capabilities between DHS and the carriers.
The development and implementation of the ESTA program will
eventually allow DHS to eliminate the requirement that VWP travelers
complete an I-94W prior to being admitted to the United States. Upon
ESTA becoming mandatory, a VWP traveler with valid ESTA will not be
required to complete the paper Form I-94W when arriving on a carrier
that is capable of receiving and validating messages pertaining to the
traveler's ESTA status as part of the traveler's boarding status.
Consistent with DHS's information sharing mission, information
stored in the 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 legal
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 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 to make agency record keeping practices
transparent, to notify individuals
[[Page 32722]]
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 ESTA system of records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of
this new system/system change to the Office of Management and Budget
and to Congress.
SYSTEM OF RECORDS:
DHS/CBP-009.
SYSTEM NAME:
Electronic System for Travel Authorization (ESTA).
SYSTEM CLASSIFICATION:
Unclassified.
SYSTEM LOCATION:
This computer database is located at the U.S. Customs and Border
Protection (CBP) National Data Center. Computer terminals are located
at customhouses, border ports of entry, airport inspection facilities
under the jurisdiction of the Department of Homeland Security and other
locations at which DHS authorized personnel may be posted to facilitate
DHS's mission. Terminals may also be located at appropriate facilities
for other participating government agencies, which have obtained system
access pursuant to a Memorandum of Understanding.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Individuals covered by ESTA consist of 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 non-immigrant 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:
Full Name (First, Middle, and Last)
Date of birth
Gender
E-mail address
Phone Number
Travel document type (e.g., passport), number, issuance
date, expiration date and issuing country
Country of Citizenship
Date of 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, drugs, 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.
ESTA Tracking Number
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).
PURPOSE:
(1) To create a system where foreign nationals of VWP countries may
apply for and secure advance authorization to travel to the United
States under the VWP;
(2) to afford DHS the opportunity to fully screen (vet) the
applicant before granting the authorization to travel to the United
States under the VWP.
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 to authorized
entities, as is determined to be relevant and necessary, outside DHS as
a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. 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;
B. To appropriate agencies, entities, and persons when (1) DHS
suspects or has confirmed that the security or confidentiality of
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 the Department or another agency or entity) or 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 the Department's efforts to
respond to the suspected or confirmed compromise and prevent, minimize,
or remedy such harm;
C. 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.
D. To contractors, grantees, experts, consultants, and the agents
thereof, 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;
E. 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);
F. 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
[[Page 32723]]
appropriate to the proper performance of the official duties of the
officer making the disclosure.
G. To appropriate Federal, State, local, tribal, or foreign
governmental agencies or multilateral governmental organizations
responsible for investigating or prosecuting the violations of, or for
enforcing or implementing, a statute, rule, regulation, order, license,
or treaty where DHS determines that the information would assist in the
enforcement of civil or criminal laws;
H. 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;
I. To the Department of Justice (including U.S. Attorney offices)
or other Federal agencies 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 : (a) DHS or any
component thereof, or (b) any employee of DHS in his/her official
capacity, or (c) any employee of DHS in his/her individual capacity
where DOJ or DHS has agreed to represent the employee, or (d) 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.
J. 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;
K. 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;
L. To Federal and foreign government intelligence or
counterterrorism agencies when DHS reasonably believes there to be a
threat or potential threat to national or international security for
which the information may be useful in countering the threat or
potential threat, when DHS reasonably believes such use is to assist in
anti-terrorism efforts, and disclosure is appropriate to the proper
performance of the official duties of the person making the disclosure;
M. 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;
N. 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;
O. To the carrier transporting an individual to the United States,
but only to the extent that CBP provides information that the
individual is authorized to travel, not authorized to travel, pending,
has not applied.
Disclosure to consumer reporting agencies:
None.
POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING,
AND DISPOSING OF RECORDS IN THE SYSTEM:
STORAGE:
The data is stored electronically at the CBP Data Center for
current data and offsite at an alternative data storage facility for
historical logs and system backups. Applicants who submit their
information online through ESTA will have their information stored in
online accounts.
RETRIEVABILITY:
These records may be searched by any of the data elements supplied
by the applicant. An admission number, issued at each entry to the
United States to track the particular admission, may also be used to
identify a database record.
ESTA will not allow applicants to retrieve directly any information
from the system, except for their ESTA determination (authorized to
travel, not authorized to travel, pending), but will allow the
applicant to submit limited updates to data elements that do not affect
their admissibility.
SAFEGUARDS:
All ESTA records are protected from unauthorized access through
appropriate administrative, physical, and technical safeguards. These
safeguards include all of the following: restricting access to those
with a ``need to know''; using locks, alarm devices, and passwords;
compartmentalizing databases; auditing software; and encrypting data
communications.
ESTA information is secured in full compliance with the
requirements of the DHS IT Security Program Handbook. This handbook
establishes a comprehensive program, consistent with federal law and
policy, to provide complete information security, including directives
on roles and responsibilities, management policies, operational
policies, and application rules, which will be applied to component
systems, communications between component systems, and at interfaces
between component systems and external systems.
One aspect of the DHS comprehensive program to provide information
security involves the establishment of rules of behavior for each major
application, including ESTA. These rules of behavior require users to
be adequately trained regarding the security of their systems. These
rules also require a periodic assessment of technical, administrative
and managerial controls to enhance data integrity and accountability.
System users must sign statements acknowledging that they have been
trained and understand the security aspects of their systems. System
users must also complete annual privacy awareness training to maintain
current access.
ESTA transactions are tracked and can be monitored. This allows for
oversight and audit capabilities to ensure that the data is being
handled consistent with all applicable federal laws and regulations
regarding privacy and data integrity. Data exchange, which will take
place over an encrypted network between the applicant or a third party
submitter on behalf of the applicant, CBP, the carrier industry,
Department of State, and other DHS components that have access to the
ESTA data, is limited and confined only to those entities that have a
need for the data in the performance of official duties. These
encrypted networks comply with standards set forth in the
Interconnection Security Agreements required to be executed prior to
external access to a CBP computer system.
[[Page 32724]]
For applicants submitting information to ESTA, access is limited to
the online application and the applicant's ESTA determination
(authorized to travel, not authorized to travel, pending). Applicants
under ESTA do not have access to any other portions of ESTA.
RETENTION AND DISPOSAL:
Information submitted to ESTA generally expires and is deemed
``inactive'' two years after the last submission or change in
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 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.
The ESTA will over time replace the paper I-94W form. In those
instances where an ESTA is then used in lieu of a paper I-94W, the ESTA
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(S) AND ADDRESS:
Director, Office of Automated Systems, U.S. Customs and Border
Protection Headquarters, 1300 Pennsylvania Avenue, NW., Washington, DC
20229.
NOTIFICATION PROCEDURES:
DHS allows persons (including foreign nationals) to seek
administrative access under the Privacy Act to information maintained
in ESTA. To determine whether ESTA contains records relating to you,
write to the CBP Customer Service Center (Rosslyn VA), 1300
Pennsylvania Avenue, NW., Washington, DC 20229; Telephone (877) 227-
5511; or through the ``Questions'' tab at http://www.cbp.gov.xp.cgov/
travel/customerservice.
RECORD ACCESS PROCEDURES:
Requests for notification or access must be in writing and should
be addressed to the Customer Service Center, OPA--CSC--Rosslyn, U.S.
Customs and Border Protection, 1300 Pennsylvania Avenue, NW.,
Washington, DC 20229. Requests should conform to the requirements of 6
CFR Part 5, Subpart B, which provides the rules for requesting access
to Privacy Act records maintained by DHS and can be found at http://
www.dhs.gov. The envelope and letter should be clearly marked ``Privacy
Act Access Request.'' The request should include a general description
of the records sought and must include the requester's full name,
current address, and date and place of birth. The request must be
signed and either notarized or submitted under penalty of perjury.
Individuals may seek redress through the DHS Traveler Redress
Program (``TRIP'') (See 72 FR 2294, dated January 18, 2007).
Individuals who, for example, believe they have been improperly denied
entry, refused boarding for transportation, or identified for
additional screening by a DHS component may submit a redress request
through the TRIP. TRIP is a single point of contact for individuals who
have inquiries or seek resolution regarding difficulties they
experienced during their travel screening at transportation hubs such
as airports and train stations or when crossing U.S. borders. Through
TRIP, a traveler can correct erroneous information stored in DHS
databases through one application. Redress requests should be sent to:
DHS Traveler Redress Inquiry Program (TRIP), 601 South 12th Street,
TSA-901, Arlington, VA 22202-4220 or online at http://www.dhs.gov/trip.
CONTESTING RECORD PROCEDURES:
See the ``Record Access Procedures'' 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 the Treasury Enforcement
Communications System (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 the CBP.
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. 552 a (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: June 2, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-12789 Filed 6-6-08; 8:45 am]
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