Proposed Rule2022-15706
Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security (DHS)/U.S. Customs and Border Protection (CBP)-027 Customs Broker Management (CBM) System of Records
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 22, 2022
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security (DHS) is giving concurrent notice of a newly established system of records pursuant to the Privacy Act of 1974 for the "DHS/U.S. Customs and Border Protection (CBP)-027 Customs Broker Management (CBM) 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.
Full Text
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<title>Federal Register, Volume 87 Issue 140 (Friday, July 22, 2022)</title>
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[Federal Register Volume 87, Number 140 (Friday, July 22, 2022)]
[Proposed Rules]
[Pages 43749-43751]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-15706]
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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. 87, No. 140 / Friday, July 22, 2022 /
Proposed Rules
[[Page 43749]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. USCBP-2022-0028]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security (DHS)/U.S. Customs and Border Protection (CBP)-027
Customs Broker Management (CBM) System of Records
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security (DHS) is giving concurrent
notice of a newly established system of records pursuant to the Privacy
Act of 1974 for the ``DHS/U.S. Customs and Border Protection (CBP)-027
Customs Broker Management (CBM) 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 August 22, 2022.
ADDRESSES: You may submit comments, identified by docket number USCBP-
2022-0028, by one of the following methods:
<bullet> Federal e-Rulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Fax: 202-343-4010.
<bullet> Mail: Lynn Parker Dupree, Chief Privacy Officer, Privacy
Office, Department of Homeland Security, Washington, DC 20528-0655.
Instructions: All submissions received must include the agency name
and docket number USCBP-2022-0028. All comments received will be posted
without change to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Debra L. Danisek, (202) 344-1610, <a href="/cdn-cgi/l/email-protection#addddfc4dbccced483cecfddedcecfdd83c9c5de83cac2db"><span class="__cf_email__" data-cfemail="ec9c9e859a8d8f95c28f8e9cac8f8e9cc288849fc28b839a">[email protected]</span></a>, CBP Privacy
Officer, U.S. Customs and Border Protection, Ronald Reagan Building,
1300 Pennsylvania Avenue NW, Washington, DC 20229. For privacy
questions, please contact: Lynn Parker Dupree, (202) 343-1717,
<a href="/cdn-cgi/l/email-protection#78280a110e191b01381009561c100b561f170e"><span class="__cf_email__" data-cfemail="4b1b39223d2a28320b233a652f2338652c243d">[email protected]</span></a>, Chief Privacy Officer, Privacy Office, Department
of Homeland Security, Washington, DC, 20528-0655.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the
Department of Homeland Security (DHS) proposes to establish a new DHS
system of records titled, ``DHS/U.S. Customs and Border Protection
(CBP)-027 Customs Broker Management.'' The records in this system are
currently covered under the ``DHS/CBP-010 Persons Engaged in
International Trade in Customs and Border Protection Licensed/Regulated
Activities Systems of Records'' (73 FR 77753, December 19, 2008), and
historically under the ``Treasury/CS.069 Customs Brokers File'' (66 FR
52984, October 18, 2001). DHS/CBP is creating this new System of
Records to distinguish the Customs Broker application, exam, license,
and vetting records from the other records in ``DHS/CBP-010 Persons
Engaged in International Trade in Customs and Border Protection
Licensed/Regulated Activities Systems of Records'' (73 FR 77753,
December 19, 2008). In addition, the new System of Records provides
notice for a new collection and maintenance of information (i.e., audio
and video recordings) from individuals taking the Customs Broker
License Exam (CBLE).
Customs Brokers are private individuals, associations,
corporations, or partnerships licensed, regulated, and empowered by CBP
to assist importers and exporters in meeting federal requirements
governing imports and exports. Customs Brokers submit necessary
information and appropriate payments to DHS/CBP on behalf of their
clients and charge a fee for their service. Customs Brokers must have
expertise in the entry procedures, admissibility requirements,
classifications, valuation, and applicable rates of duties, taxes, and
fees for imported merchandise.
Pursuant to 19 CFR 111.11, an individual is eligible to qualify for
a Customs Broker license if he or she (1) is a U.S. citizen on the date
of submission of the application referred to in 19 CFR 111.12(a) (OMB
Control Number 1651-0034/CBP Form 3124) and is not an officer or
employee of the U.S. government, (2) is the age of 21 prior to the date
of submission of the application, (3) possesses good moral character,
and (4) has passed the Customs Broker License Exam, by attaining a
passing grade (75 percent or higher) on the examination taken within
the 3-year period before submission of the application.
A partnership is eligible to qualify for a Customs Broker license
if they have at least one member of the partnership who is a broker.
See 19 CFR 111.11(b). An association or corporation is eligible to
qualify for a Customs Broker license if (1) they are empowered under
its articles of association or articles of incorporation to transact
customs business as a broker, and (2) have at least one officer who is
a broker. See 19 CFR 111.11(c).
DHS/CBP manages the Customs Broker's license program and collects
information from applicants when they register to take the Customs
Broker License Exam, during the administration of the Customs Broker
License Exam, when they apply for a broker's license, throughout the
background investigation processes, through the triennial reporting
process, and through continuing education requirements.
The Customs Broker License Exam is offered to applicants twice a
year. Applicants can go to <a href="https://e.cbp.dhs.gov/ecbp/#/main">https://e.cbp.dhs.gov/ecbp/#/main</a> to
register to take the exam. In addition to providing biographic
information when registering, applicants are also required to pay a
registration fee which is completed though the eCBP portal. Applicants
can register for either an in-person or remotely proctored examination.
DHS/CBP may video and/or audio record applicants taking either in-
person or proctored exams. These recordings allow DHS/CBP to ensure a
[[Page 43750]]
fair and equitable examination and monitor compliance with examination
procedures and requirements.
Once an applicant has successfully passed the exam, the applicant
can apply for a Customs Broker license at a CBP facility near where the
applicant plans to transact business as a Broker. The Customs Broker
license package requires applicants to submit additional biographic
information, via CBP Form 3124 (OMB Control No. 1651-0034), and
fingerprints are collected at a CBP facility by a CBP Officer and sent
to the CBP Trusted Worker Program System (TWP).\1\ DHS/CBP will use
this information to conduct a thorough background investigation which
will include fingerprint analysis, review of character references, as
well as reviews of credit reports and arrest records. DHS/CBP will use
all available information to determinate whether to grant a Customs
Broker license. Additionally, DHS/CBP conducts periodic reviews of
Broker license holders to determine if a Broker's license should be
revoked.
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\1\ See U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND
BORDER PROTECTION, PRIVACY IMPACT ASSESSMENT FOR THE TRUSTED WORKER
PROGRAM SYSTEM (TWP), DHS/CBP/PIA-062, available at <a href="https://www.dhs.gov/privacy-documents-us-customs-and-border-protection">https://www.dhs.gov/privacy-documents-us-customs-and-border-protection</a>.
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DHS/CBP stores information related to Broker's licenses in the
Automated Commercial Environment system (ACE) and on designated CBP
servers. Fingerprints collected as part of the background investigation
process are stored in the DHS Office of Biometric Identity Management
(OBIM) Automatic Biometric Identification System (IDENT). In addition,
some information will be stored on DHS contractors' systems to assist
in the administration of the Customs Broker License Examination. Any
files related to appeals will be transferred to CBP and maintained on a
CBP system.
Consistent with DHS' information sharing mission, information
stored in the DHS/CBP-027 Customs Broker Management 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, DHS/CBP may share information with appropriate federal,
state, local, tribal, territorial, foreign, or international government
agencies consistent with the routine uses set forth in this system of
records notice.
On September 10, 2021, CBP published a non-Privacy Act Notice of
Proposed Rulemaking (NPRM) in the Federal Register (86 FR 50794)
proposing to amend the CBP regulations to require continuing education
for individual customs broker license holders (individual brokers) and
to create a framework for administering this requirement. The Notice of
Proposed Rulemaking provided for a 60-day comment period, which ended
on November 9, 2021. Under the notice of proposed rulemaking,
individual brokers must earn continuing education credits for a variety
of training or educational activities, whether in-person or online,
including the completion of coursework, seminars, workshops, symposia,
or conventions, and, subject to certain limitations and requirements,
the preparation and presentation of subject matter as an instructor,
discussion leader, or speaker. Individual brokers must report and
certify their compliance with the continuing broker education
requirement upon the submission of the Triennial Status Report (TSR).
CBP intends to publish a Final Rule which will effectuate the changes
described above.
II. Privacy Act
The fair information practice principles found in the Privacy Act
underpin the 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 where 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-027 Customs Broker Management System of Records. Some
information in DHS/CBP-027 Customs Broker Management System of Records
relates to official DHS national security, law enforcement,
immigration, intelligence, or other homeland security functions. 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; to avoid disclosure of
activity techniques; to protect the identities and physical safety of
confidential informants and law enforcement personnel; to ensure DHS'
ability to obtain information from third parties and other sources; to
protect the privacy of third parties; and to safeguard classified
information. 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-027 Customs Broker
Management 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: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat.
2135; 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, add paragraph 88 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
88. The DHS/CBP-027 Customs Broker Management System of Records
consists of electronic and paper records and will be used by DHS and
its components. DHS/CBP Customs Broker Management System of Records
is a repository of information held by DHS in connection with its
several and varied missions and functions, including, but not
limited to the enforcement of civil and criminal laws;
investigations, inquiries, and proceedings there under; and national
security and intelligence activities. DHS/CBP-027 Customs Broker
Management System of Records maintains information about
individuals, associations, corporations,
[[Page 43751]]
or partnerships to administer the Customs Broker License Exam,
determine suitability for providing an individual a Customs Broker
license, and determine whether a licensed Customs Broker continues
to meet the eligibility requirements to maintain a Customs Broker
license.
The Secretary of Homeland Security has exempted this system
pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act,
portions of this system are exempt from 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). Additionally, the Secretary has
exempted this system pursuant to 5 U.S.C. 552a(k)(2) of the Privacy
Act from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I), and (f). Exemptions from these particular subsections are
justified, on a case-by-case 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 when weighing and
evaluating all available information. Further, permitting amendment
to records after an investigation has been completed could impose
administrative burdens on investigators. 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.
(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.
(i) From subsection (g)(1) (Civil Remedies) to the extent that
the system is exempt from other specific subsections of the Privacy
Act.
Lynn P. Dupree,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2022-15706 Filed 7-21-22; 8:45 am]
BILLING CODE 9111-14-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.