[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
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 This section of the FEDERAL REGISTER contains regulatory documents 
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 to and codified in the Code of Federal Regulations, which is published 
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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.

-----------------------------------------------------------------------

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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