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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: June 10, 2008 (Volume 73, Number 112)]
[Page 32720-32724]
From the Federal Register Online via GPO Access []



Office of the Secretary


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.


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: 
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, 
including any personal information provided.
     Docket: For access to the docket to read background 
documents or comments received go to

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.


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.


    Electronic System for Travel Authorization (ESTA).


    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.

    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.

     Full Name (First, Middle, and Last)
     Date of birth
     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 
     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 
     Any change of address while in the U.S.
     ESTA Tracking Number

    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).

    (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.

    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 
    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 
    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:

    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.

    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.

    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 
    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.

    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 

    Director, Office of Automated Systems, U.S. Customs and Border 
Protection Headquarters, 1300 Pennsylvania Avenue, NW., Washington, DC 

    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

    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:// 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

    See the ``Record Access Procedures'' above.

    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.

    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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