Privacy Act Exemption for AssuranceNet
| Published date | 20 February 2024 |
| Record Number | 2024-03343 |
| Citation | 89 FR 12745 |
| Court | Food Safety And Inspection Service |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 34 (Tuesday, February 20, 2024)
[Federal Register Volume 89, Number 34 (Tuesday, February 20, 2024)]
[Rules and Regulations]
[Pages 12745-12747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03343]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 34 / Tuesday, February 20, 2024 /
Rules and Regulations
[[Page 12745]]
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Part 390
[Docket Number FSIS-2019-0012]
RIN 0583-AD82
Privacy Act Exemption for AssuranceNet
AGENCY: Food Safety and Inspection Service (FSIS), U.S. Department of
Agriculture (USDA).
ACTION: Final rule.
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SUMMARY: FSIS is amending its regulations to exempt certain records
maintained by its AssuranceNet (ANet) system of records from the
notification and access provisions of the Privacy Act of 1974 (Privacy
Act). FSIS is taking this action because ANet contains information
directly associated with investigations conducted by FSIS for law
enforcement purposes.
DATES: Effective date: April 22, 2024.
FOR FURTHER INFORMATION CONTACT: Valerie Neris, AssuranceNet System
Owner/Manager, Litigation and Enforcement Programs Staff, Office of
Investigation, Enforcement and Audit; Telephone (202) 550-3562.
For Privacy Questions: Timothy Poe, Government Information
Specialist/Mission Area Privacy Officer, Freedom of Information Act
Staff, Office of Public Affairs and Consumer Education; Telephone (202)
937-4207.
SUPPLEMENTARY INFORMATION: FSIS is the public health regulatory agency
in the USDA that is responsible for ensuring that the nation's
commercial supply of meat, poultry, and egg products is safe,
wholesome, and accurately labeled. FSIS uses ANet, a management control
and performance monitoring system that gathers information from
electronic and paper-based sources, to track, measure, and monitor the
performance of its and its state partners' critical public health
functions and to alert FSIS management to areas of vulnerability or
concern. ANet tracks, measures, and monitors the performance of the key
public health functions of inspection, verification, surveillance,
enforcement, and sampling by FSIS and state meat and poultry inspection
program employees. The data and tools of ANet are used to analyze the
effectiveness of policies and procedures in meeting public health goals
and objectives and to help ensure that methods, evaluations, and
enforcement are standardized and traceable nationwide. The Agency also
uses data analysis in and through ANet to discern trends; to develop
objectives for regulatory food safety functions; to identify and focus
on areas of high-risk; and to help determine strategies to combat
threats to food safety and defense.
On March 22, 2022, FSIS published a system of records notice (SORN)
for USDA/FSIS-0005, ANet (87 FR 16163). In the same Federal Register,
FSIS published a proposed rule to exempt certain investigatory records
maintained by the ANet system of records from the notification and
access provisions of the Privacy Act under 5 U.S.C. 552a(c)(3), (d)(1)-
(4), (e)(1) (e)(4)(G)-(I), and (f) (87 FR 16105). FSIS explained in the
proposed rule that ANet includes investigatory material compiled for
law enforcement, which fall under the Privacy Act exemptions in 5
U.S.C. 552a(k). FSIS also explained that the proposed exemptions were
necessary to protect information on the methods used in law enforcement
activities from those individuals who are subjects to the investigation
and the identities and physical safety of witnesses and others who aid
in investigations. Moreover, FSIS explained that the exemptions would
ensure FSIS' ability to obtain information from third parties and
safeguard those investigatory records that are needed for litigation
(87 FR 16105-16106).
The comment period for the proposed rule ended on April 21, 2022.
After carefully considering the comments, discussed below, FSIS is
finalizing the proposal without changes.
Summary of Comments and Responses
FSIS received two comments from individuals on the proposed rule.
Comment: One commenter asked if the exempted information in ANet
will be made available once the investigation has ended.
Response: Investigative and law enforcement information in ANet may
still be exempted from release after an investigation has concluded,
because it may provide information on investigative methods and
techniques, allow violators to revise their methods to go undetected to
circumvent the law, or disclose confidential informants or sources.
Whether certain information may be releasable after an investigation
has ended will be addressed on a case-by-case basis, consistent with
the Privacy Act and the Freedom of Information Act (5 U.S.C. 552).
Comment: The other commenter argued that FSIS should withdraw the
proposal because the Agency did not define ``SORN'' in the proposed
rule.
Response: FSIS is not withdrawing the proposal. On page 16105 of
the proposed rule (87 FR 16105), the Agency explained that a SORN is a
system of records notice that informs the public of the existence of a
system of records and describes the type of information collected, why
it is being collected, what it may be used for, when it may be
disclosed to third parties, how it will be safeguarded, and how and
when it will be destroyed.
Executive Orders 12866, as Amended by 14094, and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This final rule has been designated as a ``non-significant'' regulatory
action under section 3(f) of E.O. 12866. Accordingly, the rule has not
been reviewed by the Office of Management and Budget (OMB) under E.O.
12866. While this final rule may benefit law enforcement efforts, FSIS
does not anticipate quantifiable costs or benefits accruing from this
rule.
Regulatory Flexibility Act
The FSIS Administrator certifies that, for the purposes of the
Regulatory Flexibility Act (5 U.S.C. et seq.), this final rule will not
have a significant
[[Page 12746]]
economic impact on a substantial number of small entities in the United
States. This final rule is not expected to increase costs to industry.
Paperwork Reduction Act
There are no new paperwork or recordkeeping requirements associated
with this final rule under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3520).
Executive Order 12988, Civil Justice Reform
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. Under this rule: (1) All State and local laws and
regulations that are inconsistent with this rule will be preempted; (2)
no retroactive effect will be given to this rule; and (3) no
administrative proceedings will be required before parties may file
suit in court challenging this rule.
Environmental Impact
Each USDA agency is required to comply with 7 CFR part 1b of the
Departmental regulations, which supplements the National Environmental
Policy Act regulations published by the Council on Environmental
Quality. Under these regulations, actions of certain USDA agencies and
agency units are categorically excluded from the preparation of an
Environmental Assessment (EA) or an Environmental Impact Statement
(EIS) unless the agency head determines that an action may have a
significant environmental effect (7 CFR 1b.4(b)). FSIS is among the
agencies categorically excluded from the preparation of an EA or EIS (7
CFR 1b.4(b)(6)).
FSIS has determined that this final rule, which exempts certain
records maintained by its ANet system of records from the notification
and access provisions of the Privacy Act, will not create any
extraordinary circumstances that will result in this normally excluded
action having a significant effect on the human environment. Therefore,
this action is appropriately subject to the categorical exclusion for
FSIS programs and activities under 7 CFR 1b.4.
E-Government Act
FSIS and the USDA are committed to achieving the purposes of the E-
Government Act (44 U.S.C. 3601 et seq.) by, among other things,
promoting the use of the internet and other information technologies
and providing increased opportunities for citizen access to Government
information and services, and for other purposes.
Additional Public Notification
Public awareness of all segments of rulemaking and policy
development is important. Consequently, FSIS will announce this Federal
Register publication online through the FSIS web page located at:
https://www.fsis.usda.gov/federal-register.
FSIS also will make copies of this publication available through
the FSIS Constituent Update, which is used to provide information
regarding FSIS policies, procedures, regulations, Federal Register
notices, FSIS public meetings, and other types of information that
could affect or would be of interest to our constituents and
stakeholders. The Constituent Update is available on the FSIS web page.
Through the web page, FSIS can provide information to a much broader,
more diverse audience. In addition, FSIS offers an email subscription
service which provides automatic and customized access to selected food
safety news and information. This service is available at: https://www.fsis.usda.gov/subscribe. Options range from recalls to export
information, regulations, directives, and notices. Customers can add or
delete subscriptions themselves and have the option to password protect
their accounts.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
E.O. 13175, ``Consultation and Coordination with Indian Tribal
Governments.'' E.O. 13175 requires Federal agencies to consult and
coordinate with tribes on a government-to-government basis on policies
that have tribal implications, including regulations, legislative
comments or proposed legislation, and other policy statements or
actions that have substantial direct effects on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes or on the distribution of power and responsibilities between the
Federal Government and Indian tribes.
FSIS has assessed the impact of this rule on Indian tribes and
determined that this rule does not, to our knowledge, have tribal
implications that require tribal consultation under E.O. 13175. If a
tribe requests consultation, FSIS will work with the Office of Tribal
Relations to ensure meaningful consultation is provided where changes,
additions, and modifications identified herein are not expressly
mandated by Congress.
USDA Non-Discrimination Statement
In accordance with Federal civil rights law and USDA civil rights
regulations and policies, USDA, its Mission Areas, agencies, staff
offices, employees, and institutions participating in or administering
USDA programs are prohibited from discriminating based on race, color,
national origin, religion, sex, gender identity (including gender
expression), sexual orientation, disability, age, marital status,
family/parental status, income derived from a public assistance
program, political beliefs, or reprisal or retaliation for prior civil
rights activity, in any program or activity conducted or funded by USDA
(not all bases apply to all programs). Remedies and complaint filing
deadlines vary by program or incident.
Program information may be made available in languages other than
English. Persons with disabilities who require alternative means of
communication to obtain program information (e.g., Braille, large
print, audiotape, American Sign Language) should contact the
responsible Mission Area, agency, or staff office; the USDA TARGET
Center at (202) 720-2600 (voice and TTY); or the Federal Relay Service
at (800) 877-8339.
To file a program discrimination complaint, a complainant should
complete a Form, AD-3027, USDA Program Discrimination Complaint Form,
which can be obtained online at https://www.usda.gov/forms/electronic-forms, from any USDA office, by calling (866) 632-9992, or by writing a
letter addressed to USDA. The letter must contain the complainant's
name, address, telephone number, and a written description of the
alleged discriminatory action in sufficient detail to inform the
Assistant Secretary for Civil Rights about the nature and date of an
alleged civil rights violation. The completed AD-3027 form or letter
must be submitted to USDA by: (1) Mail: U.S. Department of Agriculture,
Office of the Assistant Secretary for Civil Rights, 1400 Independence
Avenue SW, Washington, DC 20250-9410; (2) Fax: (833) 256-1665 or (202)
690-7442; or (3) Email: [email protected].
USDA is an equal opportunity provider, employer, and lender.
List of Subjects in 9 CFR Part 390
Freedom of information, Privacy.
For the reasons stated in the preamble, FSIS amends 9 CFR part 390
as follows:
PART 390--FREEDOM OF INFORMATION AND PUBLIC INFORMATION
0
1. The authority citation for part 390 is revised to read as follows:
[[Page 12747]]
Authority: 5 U.S.C. 301, 552, 552a; 21 U.S.C. 451-472, 601-695;
7 CFR 1.3, 2.7.
0
2. Add Sec. 390.11 to read as follows:
Sec. 390.11 FSIS systems of records exempt from the Privacy Act.
(a) USDA/FSIS-0005, AssuranceNet system of records, is exempt from
subsections (c)(3), (d)(1)-(4), (e)(1), (e)(4)(G)-(I), and (f) of the
Privacy Act, 5 U.S.C. 552a, to the extent it contains investigatory
material compiled for law enforcement purposes in accordance with 5
U.S.C. 552a(k)(2). Exemptions from the particular subsections are
justified for the following reasons:
(1) From subsection (c)(3) because the release of the disclosure
accounting would permit the subject of an investigation to obtain
valuable information concerning the nature of that investigation. This
would permit record subjects to impede the investigation, e.g., destroy
evidence, intimidate potential witnesses, or flee the area to avoid
inquiries or apprehension by law enforcement personnel.
(2) From subsection (d)(1) because the records contained in this
system relate to official Federal investigations and matters of law
enforcement. Individual access to these records might compromise
ongoing or impending investigations, reveal confidential informants, or
constitute unwarranted invasions of the personal privacy of third
parties who are involved in a certain investigation.
(3) From section (d)(2) because amendment of the records would
interfere with ongoing law enforcement proceedings and impose an
impossible administrative burden by requiring investigations to be
continuously reinvestigated.
(4) From subsections (d)(3) and (4) because these subsections are
inapplicable to the extent exemption is claimed from subsections (d)(1)
and (2).
(5) From subsection (e)(1) because it is often impossible to
determine in advance if investigatory information contained in this
system is accurate, relevant, timely and complete, but, in the
interests of effective law enforcement, it is necessary to retain this
information to aid in establishing patterns of activity and provide
investigative leads. Moreover, it would impede the specific
investigative process if it were necessary to assure the relevance,
accuracy, timeliness, and completeness of all information obtained.
(6) From subsections (e)(4)(G) and (H) since an exemption being
claimed for subsection (d) makes these subsections inapplicable.
(7) From subsection (e)(4)(I) because the categories of sources of
the records in this system have been published in the Federal Register
in broad generic terms in the belief that this is all that subsection
(e)(4)(I) requires. In the event, however, that subsection (e)(4)(I)
should be interpreted to require more detail as to the identity of
sources of the records in the system, exemption from this provision is
necessary in order to protect the confidentiality of the sources of
enforcement information and of witnesses and informants.
(8) From subsection (f) to the extent that the system is exempt
from other specific subsections of the Privacy Act.
(b) [Reserved]
Done in Washington, DC.
Theresa Nintemann,
Deputy Administrator.
[FR Doc. 2024-03343 Filed 2-16-24; 8:45 am]
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