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CBP to Implement New C-TPAT Records System and Exempt Portions from the Privacy Act

New records system and exemptions scheduled to take effect April 12

Rapid Customs Information Bulletin, March 26, 2013

The Department of Homeland Security’s (DHS) Customs and Border Protection (CBP) has given concurrent notice of a newly established system of records for the Customs-Trade Partnership Against Terrorism (C-TPAT) system pursuant to the Privacy act of 1974 and a proposed rulemaking that would exempt portions of the system of records from the Privacy Act because of criminal, civil, and administrative enforcement requirements.

Background: The C-TPAT is a voluntary government/private sector partnership created in response to the events of 9/11/01. Businesses accepted into C-TPAT agree to take actions to protect their supply chain, identify security gaps, and implement specific security measures and best practices in return for facilitated processing of their shipments by CBP.

System of Records: The newly-created system of records is called DHS/CBP-018-Customs-Trade Partnership Against Terrorism (C-TPAT) System of Records. This records system collects and manages information about prospective, ineligible, current, or former trade partners in C-TPAT, and other entities and individuals in their supply chain. The system also collects and maintains information regarding members of a foreign government secure supply chain program that have been recognized by CBP through Mutual Recognition Arrangement or a comparable arrangement. The system contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other agencies. The new system of records will be effective April 12, 2013, unless comments are received which result in a contrary determination.

Notice of Proposed Rulemaking: DHS is proposing to exempt portions of the DHS/CBP-018-Customs-Trade Partnership Against Terrorism (C-TPAT) System of Records from the Privacy Act of 1974. In general, federal agencies are not allowed to disclose information contained in a system of records unless the requester is the subject of the record or has the subject’s permission. There are exceptions, however, and one such exception is for information requested for civil or criminal law enforcement activity. The Privacy Act requires federal agencies to maintain an accounting of the disclosures it makes to law enforcement agencies regarding entities systems of records like the C-TPAT system. As written, the Privacy Act provides that the subject of a record can request this accounting of disclosures. However, with this proposed rulemaking, DHS is seeking an exemption to this requirement so that the agency does not have to give an accounting of these disclosures. DHS’ position is that giving this accounting could permit the individual who is the subject of a record to impede an investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. DHS is seeking to avoid this outcome. The other proposed exemptions have similar intentions. Specifically, the exemptions are sought in order to preclude subjects from frustrating law enforcement efforts, to avoid disclosure of law enforcement techniques, and to protect the privacy of third parties. In certain instances, when compliance would not appear to interfere with or adversely affect the law enforcement purposes of the system and the overall law enforcement process, the exemptions may be waived. Comments to this proposed rulemaking must be received on or before April 12, 2013.

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