Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security U.S. Immigration and Customs Enforcement-016 FALCON Search and Analysis System of Records, 45641-45644 [2019-18749]
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Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations
§§ 1402.330–1402.413
[Reserved]
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§ 1402.414 What are the negotiated
indirect cost rate deviation policies?
(a) This section establishes DOI
policies, procedures, and decision
making criteria for using an indirect cost
rate that differs from the non-Federal
entity’s negotiated rate or approved rate
for DOI awards. These are established in
accordance with 2 CFR 200.414(c)(3) or
(f).
(b) DOI accepts indirect cost rates that
have been reduced or removed
voluntarily by the proposed recipient of
the award, on an award-specific basis.
(c) For all deviations to the Federal
negotiated indirect cost rate, including
statutory, regulatory, programmatic, and
voluntary, the basis of direct costs
against which the indirect cost rate is
applied must be:
(1) The same base identified in the
recipient’s negotiated indirect cost rate
agreement, if the recipient has a
federally negotiated indirect cost rate
agreement; or
(2) The Modified Total Direct Cost
(MTDC) base, in cases where the
recipient does not have a federally
negotiated indirect cost rate agreement
or, with prior approval of the awarding
bureau or office, when the recipient’s
federally negotiated indirect cost rate
agreement base is only a subset of the
MTDC (such as salaries and wages) and
the use of the MTDC still results in an
overall reduction in the total indirect
cost recovered. MTDC is the base
defined by 2 CFR 200.68, Modified
Total Direct Cost (MTDC).
(d) In cases where the recipient does
not have a federally negotiated indirect
cost rate agreement, DOI will not use a
modified rate based upon total direct
cost or other base not identified in the
federally negotiated indirect cost rate
agreement or defined within 2 CFR
200.68.
(1) Indirect cost rate deviation
required by statute or regulation. In
accordance with 2 CFR 200.414(c)(1), a
Federal agency must use a rate other
than the Federal negotiated rate where
required by Federal statute or
regulation. For such instances within
DOI, the official award file must
document the specific statute or
regulation that required the deviation.
(2) Indirect cost rate reductions used
as cost-share. Instances where the
recipient elects to use a rate lower than
the federally negotiated indirect cost
rate, and uses the balance of the
unrecovered indirect costs to meet a
cost-share or matching requirement
required by the program and/or statute,
are not considered a deviation from 2
CFR 200.414(c), as the federally
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negotiated indirect cost rate is being
applied under the agreement in order to
meet the terms and conditions of the
award.
(3) Programmatic indirect cost rate
deviation approval process. Bureaus
and offices with DOI approved
deviations in place prior to October 29,
2019 are not required to resubmit those
for reconsideration following the
procedures in this paragraph (d)(3). The
following requirements apply for
review, approval, and posting of
programmatic indirect cost rate waivers:
(i) Program qualifications. Programs
that have instituted a program-wide
requirement and governance process for
deviations from federally negotiated
indirect cost rates may qualify for a
programmatic deviation approval.
(ii) Deviation requests. Deviation
requests must be submitted by the
responsible senior program manager to
the DOI Office of Grants Management.
The request for deviation approval must
include a description of the program,
and the governance process for
negotiating and/or communicating to
recipients the indirect cost rate
requirements under the program. The
program must make its governance
documentation, rate deviations, and
other program information publicly
available.
(iii) Approvals. Programmatic
deviations must be approved, in writing,
by the Director, Office of Grants
Management. Approved deviations will
be made publicly available.
(4) Voluntary indirect cost rate
reduction. On any single award, an
applicant and/or proposed recipient
may elect to reduce or eliminate the
indirect cost rate applied to costs under
that award. The election must be
voluntary and cannot be required by the
awarding official, NOFO, program, or
other non-statutory or non-regulatory
requirements. For these award-specific
and voluntary reductions, DOI can
accept the lower rate provided the
notice of award clearly documents the
recipient’s voluntary election. Once DOI
has accepted the lower rate, that rate
will apply for the duration of the award.
(5) Unrecovered indirect costs. In
accordance with 2 CFR 200.405, indirect
costs not recovered due to deviations to
the federally negotiated rate are not
allowable for recovery via any other
means.
§§ 1402.415–1402.499
[Reserved]
Scott J. Cameron,
Principal Deputy Assistant Secretary for
Policy Management and Budget.
[FR Doc. 2019–18650 Filed 8–29–19; 8:45 am]
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45641
DEPARTMENT OF HOMELAND
SECURITY
6 CFR Part 5
[Docket No. DHS–2019–0031]
Privacy Act of 1974: Implementation of
Exemptions; Department of Homeland
Security U.S. Immigration and
Customs Enforcement–016 FALCON
Search and Analysis System of
Records
U.S. Immigration and Customs
Enforcement, U.S. Department of
Homeland Security.
ACTION: Final rule.
AGENCY:
The Department of Homeland
Security (DHS) is issuing a final rule to
amend its regulations to exempt
portions of an updated and reissued
system of records titled, ‘‘Department of
Homeland Security/U.S. Immigration
and Customs Enforcement–016
FALCON Search and Analysis System of
Records’’ from certain provisions of the
Privacy Act. Specifically, the
Department exempts portions of this
system of records from one or more
provisions of the Privacy Act because of
criminal, civil, and administrative
enforcement requirements.
DATES: This final rule is effective August
30, 2019.
FOR FURTHER INFORMATION CONTACT: For
general questions please contact: Jordan
Holz, (202) 732–3300, Acting Privacy
Officer, Immigration and Customs
Enforcement, Washington, DC 20536.
For privacy issues please contact:
Jonathan R. Cantor (202)–343–1717,
Acting Chief Privacy Officer, Privacy
Office, Department of Homeland
Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DHS U.S. Immigration and Customs
Enforcement (ICE) published a notice of
proposed rulemaking (NPRM) in the
Federal Register (82 FR 20844, May 4,
2017) proposing to exempt portions of
DHS/ICE–016 FALCON Search and
Analysis (FALCON–SA) System of
Records from one or more provisions of
the Privacy Act because of criminal,
civil, and administrative enforcement
requirements. This system of records
was published concurrently in the
Federal Register (82 FR 20905, May 4,
2017), and DHS sought comments on
both the NPRM and System of Records
Notice (SORN). It should be noted that
the NPRM was over-inclusive regarding
Privacy Act exemptions. This final rule
appropriately limits the exemptions to
what is permitted under the Privacy
Act.
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Basis and Purpose of Regulatory Action
In finalizing this rule, DHS exempts
portions of the updated and reissued
FALCON Search and Analysis
(FALCON–SA) system of records from
one or more provisions of the Privacy
Act. ICE Homeland Security
Investigations (HSI) personnel use
FALCON–SA to conduct research and
analysis using advanced analytic tools
in support of ICE’s law enforcement
mission. Providing an individual access
to FALCON–SA records pertaining to
that individual could inform the subject
of an ongoing or potential criminal,
civil, or regulatory investigation, or
reveal investigative interest on the part
of DHS or another agency. For these
reasons, DHS will exempt portions of
the FALCON–SA system of records from
certain provisions of the Privacy Act of
1974.
II. Public Comments
DHS received two substantive
comments on the NPRM and one
substantive comment on the SORN.
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NPRM
Both commenters stated that
exempting the portions of the FALCON–
SA system of records from 5 U.S.C.
552a(e)(1), which ensures that all
information collected about an
individual ‘‘is relevant and necessary,’’
risks violating an individual’s Fourth
Amendment protection from
unreasonable search and seizure.
Further, one commenter expressed
concern that ‘‘collection’’ systems like
FALCON–SA could be considered
warrantless investigations and raise
reasonable expectation of privacy
considerations. The relevance of this
objection is unclear as generally there is
no warrant requirement for an
investigation. Also, 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.
Moreover, FALCON–SA is used for
storing, searching, analyzing, and
visualizing volumes of existing
information gathered under processes
that are covered by their own standard
operating procedures, policies, and
rules of behavior where applicable. It
does not directly collect information
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from any individuals.1 Further, to
ensure that all information ingested into
FALCON–SA is collected appropriately,
all users complete FALCON–SA training
that includes rules of behavior,
appropriate use of system data,
uploading and tagging records,
disclosure and dissemination of records,
and system security. Users must
complete training in order to receive
authorization to access FALCON–SA.
All personnel who have access to the
ICE Network are also required to take
annual privacy and security training,
which emphasizes the DHS Rules of
Behavior and other legal and policy
restrictions on user behavior.
One commenter indicated that
FALCON–SA collects individuals’
information without their consent, and
therefore objected generally to Privacy
Act exemptions for the FALCON–SA
system of records. As noted above,
FALCON–SA does not directly gather
information from the individual, but
rather ingests information collected
through existing legal processes. DHS,
in exempting portions of the FALCON–
SA system of records from particular
provisions of the Privacy Act, is not
engaging in a search of any individual.
To the extent comments address
potential impacts or concerns with
collection of information by other
systems, DHS and ICE publish SORNs
and rules for all systems of records that
can be found at https://www.dhs.gov/
system-records-notices-sorns.
Another commenter stated that the
FALCON–SA System of Records allows
ICE personnel to collect ‘‘any
information [he or she] wants without
disclosing where it came from or even
acknowledging its existence.’’ While
DHS notes this concern, law
enforcement exemptions allow ICE
personnel to retain evidentiary
information in the appropriate system(s)
without public disclosure. When law
enforcement agencies share information
they collect with ICE, appropriate ICE
personnel determine whether it should
be ingested into FALCON–SA. If
information is ingested, ICE personnel
do not make any changes to the data, in
order to preserve data accuracy and
integrity. Under this final rule,
information that is or will be stored in
FALCON–SA will be exempt from
disclosure so that law enforcement
investigations are not negatively
impacted. DHS ensures that all
FALCON–SA users are trained on the
proper uses of the system. All ingests
1 For more information on ingests, including an
explanation of sources of information ingested into
FALCON–SA, see: DHS/ICE/PIA–032 FALCON
Search & Analysis System.
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performed by a FALCON–SA user
require ICE supervisory approval.
FALCON–SA also implements extensive
auditing of user actions in the system.
The system automatically maintains an
audit log, and any attempt to access
information outside of the user’s
permissions will be automatically
flagged throughout the enterprise. User
actions are recorded and stored in audit
logs accessible to supervisors and ICE IT
security personnel, which are searched
and analyzed to ensure proper use of the
system. Audit data is also available to
ICE Office of Professional Responsibility
(OPR) investigators if there is an
investigation into possible wrongdoing
by a FALCON–SA user. Additional
information on auditing and technical
controls and safeguards can be found in
the FALCON–SA Privacy Impact
Assessment (PIA), available at https://
www.dhs.gov/privacy-impactassessments. While ICE cannot disclose
the specific information collected by
FALCON–SA without compromising
individual cases, the FALCON–SA PIA
was published to transparently explain
how information is collected, stored,
protected, shared, and managed by the
system..
SORN
The comment received in regard to
the SORN can be broken down into two
main topics:
(1) The system collects too broadly,
and
(2) The routine uses for disclosure
circumvent Privacy Act safeguards and
contravene legislative intent.
Regarding the first point, the
comment suggested that FALCON–SA
collects ‘‘virtually unlimited’’ categories
of records. ICE developed FALCON–SA
to enhance ICE’s ability to identify,
apprehend, and initiate appropriate
legal proceedings against individuals
who violate criminal, civil, and
administrative laws enforced by ICE.
FALCON–SA supports the investigative
work of ICE HSI agents and criminal
research specialists by allowing them to
search, review, upload, and analyze data
pertinent to an investigative lead or an
ongoing case. While ‘‘collection’’ is not
an applicable concept in the context of
actions that are undertaken through
FALCON–SA directly, DHS
acknowledges a general risk of overcollection of information. In
circumstances when ICE directly
collects information, ICE only collects
the minimum amount relevant and
necessary to further ICE’s law
enforcement mission. To that end, ICE
maintains information about DHS
personnel, other law enforcement
personnel, victims, witnesses, and other
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associated individuals who may be
relevant in the course of an
investigation. ICE does not use
FALCON–SA to collect any information
directly from an individual or about an
individual, but rather ingests
information collected by other systems
pursuant to the limitations in their own
privacy compliance documentation. HSI
personnel determine whether the
information from other systems should
be ingested into FALCON–SA. ICE has
established system safeguards to prevent
the inclusion of data that does not serve
FALCON–SA’s intended purpose,
which is to support ICE HSI law
enforcement investigations and
analytical activities. As stated above,
before being able to access FALCON–
SA, users must first complete privacy
and information security training that
includes appropriate uses of system
data, uploading and tagging records,
disclosure and dissemination of records,
and system security to mitigate any risk
resulting from the collection of this
information. Further, as stated above,
ICE also implements extensive auditing
of user actions in the system.
The commenter expressed concerns
about disclosures pursuant to routine
uses proposed in the FALCON–SA
SORN. First, disclosures pursuant to the
routine use exception are never
mandatory, but instead are at the
discretion of the agency. Second,
FALCON–SA users have a requirement
to document all disclosures made per
these routine use exceptions as well as
disclosures made under any other
authority.
Specifically, the commenter
expressed concerns about Routine Uses
H, J, and O. Routine Use H authorizes
disclosure to federal, state, local, tribal,
territorial, foreign, or international
agencies for background investigations.
Under this Routine Use, DHS only
shares information about individuals’
criminal, civil, and administrative law
violations in response to other agencies’
background investigations. This type of
disclosure is limited to information that
was collected for law enforcement
purposes. Limited sharing to assist in
law enforcement investigations is
consistent with the purpose for
collection.
Routine Use J authorizes disclosure to
international and foreign partners in
accordance with law and formal or
informal international arrangements.
DHS enters into formal or informal
information sharing agreements that are
consistent with the system’s law
enforcement purposes. Further,
information sharing partners must
execute a Memorandum of
Understanding (MOU), Memorandum of
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Agreement (MOA), or an equivalent
agreement stipulating that they will
only use DHS information consistent
with the purposes for which the
information was collected.
Routine Use O authorizes disclosure
to the media and members of the public
with the prior approval of the Chief
Privacy Officer, if the disclosure is a
matter of legitimate public interest. Like
all Routine Uses, disclosures are not
mandatory. Media disclosures are
limited in scope and subject to
restrictions and procedures located in
the DHS Privacy Policy Guidance
Memorandum 2017–01 2 and other laws,
regulations, and policies. Absent a
waiver by the subject of the record, ICE
may only release information to the
media in those specific situations
detailed in the Routine Use. Similar to
other law enforcement agencies, for
example, ICE may release the name, age,
gender, and the summary of a criminal
charge if the subject of a record has been
charged with a crime and that
information falls within ICE’s purview.
ICE may also release limited fugitive
information, which would be beneficial
to public safety.
After consideration of public
comments, the Department will
implement the rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information, Privacy.
For the reasons stated in the
preamble, DHS amends chapter I of title
6, Code of Federal Regulations, as
follows:
PART 5—DISCLOSURE OF RECORDS
AND INFORMATION
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.
2. Amend appendix C to part 5 by
adding paragraph 81 to read as follows:
■
Appendix C to Part 5—DHS Systems of
Records Exempt From the Privacy Act
*
*
*
*
*
81. The DHS/ICE–016 FALCON Search and
Analysis (FALCON–SA) System of Records
consists of electronic and paper records and
will be used by DHS and its components. The
FALCON–SA System of Records is a
repository of information held by DHS in
connection with its several and varied
missions and functions, including the
enforcement of civil and criminal laws;
investigations, inquiries, and proceedings
2 Available at https://www.dhs.gov/publication/
dhs-privacy-policy-guidance-memorandum-201701.
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thereunder; and national security and
intelligence activities. The FALCON–SA
System of Records 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
federal, state, local, tribal, foreign, or
international government agencies. The
Secretary of Homeland Security has
exempted this system from the following
provisions of the Privacy Act, subject to
limitations set forth in 5 U.S.C. 552a(c)(3)
and (c)(4): (d); (e)(1), (e)(2), (e)(3), (e)(4)(G),
(e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f); and (g)
pursuant to 5 U.S.C. 552a(j)(2). Additionally,
the Secretary of Homeland Security has
exempted this system from the following
provisions of the Privacy Act, subject to
limitations set forth in 5 U.S.C. 552a(c)(3);
(d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f)
pursuant to 5 U.S.C. 552a(k)(2). 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. Information on a
completed investigation may be withheld
and exempt from disclosure if the fact that
an investigation occurred remains sensitive
after completion.
(b) From subsection (d) (Access and
Amendment 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 and would impose an
unreasonable administrative burden by
requiring investigations to be continually
reinvestigated. 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
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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. Compliance with subsection (e)(5)
would preclude DHS agents from using their
investigative training and exercise of good
judgment to both conduct and report on
investigations.
(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.
(j) From subsection (g) (Civil Remedies) to
the extent that the system is exempt from
other specific subsections of the Privacy Act.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of
Homeland Security.
[FR Doc. 2019–18749 Filed 8–29–19; 8:45 am]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 735
7 CFR Chapter VIII
9 CFR Chapter II
[Doc. No. AMS–FGIS–18–0073 FR]
Reorganization and Transfer of
Regulations
Agricultural Marketing Service;
Farm Service Agency; Grain Inspection,
Packers, and Stockyards
Administration; USDA.
ACTION: Final rule.
AGENCY:
This rule transfers certain
regulations under the Farm Service
Agency (FSA) and the Grain Inspection,
Packers and Stockyards Administration
(GIPSA) to the Agricultural Marketing
Service (AMS) to reflect changes in the
organizational structure and delegated
authorities within the United States
Department of Agriculture (USDA). This
rule also makes corresponding revisions
to the regulations to reflect the
organizational changes. This action is
necessary to enable the AMS
Administrator to issue, maintain, and
revise as necessary regulations related to
programs under the AMS
Administrator’s delegated authority.
DATES: Effective August 30, 2019.
FOR FURTHER INFORMATION CONTACT:
Dawana J. Clark, Legislative and
Regulatory Review Staff, Office of the
Administrator, AMS, USDA; Telephone:
(202) 720–7540, Fax: (202) 690–3767, or
Email: Dawana.Clark@usda.gov.
SUPPLEMENTARY INFORMATION: In
November 2018, the Secretary of
Agriculture directed the reorganization
of several USDA agencies. The purpose
of the reorganization was to help USDA
better meet the needs of farmers,
ranchers, and producers, while
providing improved customer service
and maximizing efficiency. A final rule
published November 29, 2018 (83 FR
61309), eliminated GIPSA as a standalone agency and amended 7 CFR part
2 to include new delegations of
authority from the Under Secretary for
Marketing and Regulatory Programs to
the AMS Administrator. Amended
§ 2.79 authorizes the AMS
Administrator to administer the United
States Grain Standards Act, as amended
(7 U.S.C. 71–87h); the Packers and
Stockyards Act, 1921 (P&S), as amended
and supplemented (7 U.S.C. 181 et seq.);
and the United States Warehouse Act
(USWA), as amended (7 U.S.C. 241–
SUMMARY:
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273). The reorganization and
redelegation of authority necessitate the
transfer of corresponding regulations to
AMS, giving the AMS Administrator
authority to issue, maintain, and revise
regulations pertaining to USWA
programs, the Federal Grain Inspection
Service (FGIS), and P&S programs. This
final rule completes the necessary
transfer.
Overview of Changes
Currently, Title 7, Chapter VII, part
735 of the Code of Federal Regulations
(CFR) contains the USWA regulations,
under FSA administration. This final
rule transfers the USWA regulations in
part 735 to Chapter VIII of Title 7 and
redesignates them as part 869. Currently
Chapter VIII is titled ‘‘Grain Inspection,
Packers and Stockyards Administration
(Federal Grain Inspection Service),
Department of Agriculture.’’ This final
rule revises the title of Chapter VIII to
read ‘‘Agricultural Marketing Service
(Federal Grain Inspection Service, Fair
Trade Practices Program), Department of
Agriculture’’ to reflect the elimination of
GIPSA and the redelegation of
administrative authority for FGIS and
USWA activities to the AMS
Administrator. The Deputy
Administrator of AMS’s Federal Grain
Inspection Service oversees FGIS
activities for the Administrator, and the
Deputy Administrator of AMS’s Fair
Trade Practices Program (FTPP)
oversees USWA activities for the
Administrator.
Currently, Title 9, Chapter II, of the
CFR, titled ‘‘Grain Inspection, Packers
and Stockyards Administration (Packers
and Stockyards Programs), Department
of Agriculture’’ contains the P&S
regulations. This final rule revises the
title of Chapter II to read ‘‘Agricultural
Marketing Service (Fair Trade Practices
Program), Department of Agriculture’’ to
reflect the elimination of GIPSA and the
redelegation of administrative authority
for P&S activities to the AMS
Administrator. The Deputy
Administrator of FTPP oversees P&S
activities for the Administrator.
This final rule makes corresponding
revisions to certain definitions,
references, addresses, and telephone
numbers in 7 CFR parts 800, 868, and
869; and 9 CFR parts 201,202, 203, and
206 to reflect redelegation to the AMS
Administrator of authority over former
GIPSA and FSA programs. This rule
replaces references to the Grain
Inspection, Packers and Stockyards
Administration, GIPSA, the Farm
Service Agency, and FSA as appropriate
with references to the Agricultural
Marketing Service and AMS. This rule
redefines the term Administrator in the
E:\FR\FM\30AUR1.SGM
30AUR1
Agencies
[Federal Register Volume 84, Number 169 (Friday, August 30, 2019)]
[Rules and Regulations]
[Pages 45641-45644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18749]
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DEPARTMENT OF HOMELAND SECURITY
6 CFR Part 5
[Docket No. DHS-2019-0031]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security U.S. Immigration and Customs Enforcement-016 FALCON
Search and Analysis System of Records
AGENCY: U.S. Immigration and Customs Enforcement, U.S. Department of
Homeland Security.
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is issuing a final
rule to amend its regulations to exempt portions of an updated and
reissued system of records titled, ``Department of Homeland Security/
U.S. Immigration and Customs Enforcement-016 FALCON Search and Analysis
System of Records'' from certain provisions of the Privacy Act.
Specifically, the Department exempts portions of this system of records
from one or more provisions of the Privacy Act because of criminal,
civil, and administrative enforcement requirements.
DATES: This final rule is effective August 30, 2019.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Jordan Holz, (202) 732-3300, Acting Privacy Officer, Immigration and
Customs Enforcement, Washington, DC 20536. For privacy issues please
contact: Jonathan R. Cantor (202)-343-1717, Acting Chief Privacy
Officer, Privacy Office, Department of Homeland Security, Washington,
DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
DHS U.S. Immigration and Customs Enforcement (ICE) published a
notice of proposed rulemaking (NPRM) in the Federal Register (82 FR
20844, May 4, 2017) proposing to exempt portions of DHS/ICE-016 FALCON
Search and Analysis (FALCON-SA) System of Records from one or more
provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements. This system of records was
published concurrently in the Federal Register (82 FR 20905, May 4,
2017), and DHS sought comments on both the NPRM and System of Records
Notice (SORN). It should be noted that the NPRM was over-inclusive
regarding Privacy Act exemptions. This final rule appropriately limits
the exemptions to what is permitted under the Privacy Act.
[[Page 45642]]
Basis and Purpose of Regulatory Action
In finalizing this rule, DHS exempts portions of the updated and
reissued FALCON Search and Analysis (FALCON-SA) system of records from
one or more provisions of the Privacy Act. ICE Homeland Security
Investigations (HSI) personnel use FALCON-SA to conduct research and
analysis using advanced analytic tools in support of ICE's law
enforcement mission. Providing an individual access to FALCON-SA
records pertaining to that individual could inform the subject of an
ongoing or potential criminal, civil, or regulatory investigation, or
reveal investigative interest on the part of DHS or another agency. For
these reasons, DHS will exempt portions of the FALCON-SA system of
records from certain provisions of the Privacy Act of 1974.
II. Public Comments
DHS received two substantive comments on the NPRM and one
substantive comment on the SORN.
NPRM
Both commenters stated that exempting the portions of the FALCON-SA
system of records from 5 U.S.C. 552a(e)(1), which ensures that all
information collected about an individual ``is relevant and
necessary,'' risks violating an individual's Fourth Amendment
protection from unreasonable search and seizure. Further, one commenter
expressed concern that ``collection'' systems like FALCON-SA could be
considered warrantless investigations and raise reasonable expectation
of privacy considerations. The relevance of this objection is unclear
as generally there is no warrant requirement for an investigation.
Also, 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.
Moreover, FALCON-SA is used for storing, searching, analyzing, and
visualizing volumes of existing information gathered under processes
that are covered by their own standard operating procedures, policies,
and rules of behavior where applicable. It does not directly collect
information from any individuals.\1\ Further, to ensure that all
information ingested into FALCON-SA is collected appropriately, all
users complete FALCON-SA training that includes rules of behavior,
appropriate use of system data, uploading and tagging records,
disclosure and dissemination of records, and system security. Users
must complete training in order to receive authorization to access
FALCON-SA. All personnel who have access to the ICE Network are also
required to take annual privacy and security training, which emphasizes
the DHS Rules of Behavior and other legal and policy restrictions on
user behavior.
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\1\ For more information on ingests, including an explanation of
sources of information ingested into FALCON-SA, see: DHS/ICE/PIA-032
FALCON Search & Analysis System.
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One commenter indicated that FALCON-SA collects individuals'
information without their consent, and therefore objected generally to
Privacy Act exemptions for the FALCON-SA system of records. As noted
above, FALCON-SA does not directly gather information from the
individual, but rather ingests information collected through existing
legal processes. DHS, in exempting portions of the FALCON-SA system of
records from particular provisions of the Privacy Act, is not engaging
in a search of any individual. To the extent comments address potential
impacts or concerns with collection of information by other systems,
DHS and ICE publish SORNs and rules for all systems of records that can
be found at https://www.dhs.gov/system-records-notices-sorns.
Another commenter stated that the FALCON-SA System of Records
allows ICE personnel to collect ``any information [he or she] wants
without disclosing where it came from or even acknowledging its
existence.'' While DHS notes this concern, law enforcement exemptions
allow ICE personnel to retain evidentiary information in the
appropriate system(s) without public disclosure. When law enforcement
agencies share information they collect with ICE, appropriate ICE
personnel determine whether it should be ingested into FALCON-SA. If
information is ingested, ICE personnel do not make any changes to the
data, in order to preserve data accuracy and integrity. Under this
final rule, information that is or will be stored in FALCON-SA will be
exempt from disclosure so that law enforcement investigations are not
negatively impacted. DHS ensures that all FALCON-SA users are trained
on the proper uses of the system. All ingests performed by a FALCON-SA
user require ICE supervisory approval. FALCON-SA also implements
extensive auditing of user actions in the system. The system
automatically maintains an audit log, and any attempt to access
information outside of the user's permissions will be automatically
flagged throughout the enterprise. User actions are recorded and stored
in audit logs accessible to supervisors and ICE IT security personnel,
which are searched and analyzed to ensure proper use of the system.
Audit data is also available to ICE Office of Professional
Responsibility (OPR) investigators if there is an investigation into
possible wrongdoing by a FALCON-SA user. Additional information on
auditing and technical controls and safeguards can be found in the
FALCON-SA Privacy Impact Assessment (PIA), available at https://www.dhs.gov/privacy-impact-assessments. While ICE cannot disclose the
specific information collected by FALCON-SA without compromising
individual cases, the FALCON-SA PIA was published to transparently
explain how information is collected, stored, protected, shared, and
managed by the system..
SORN
The comment received in regard to the SORN can be broken down into
two main topics:
(1) The system collects too broadly, and
(2) The routine uses for disclosure circumvent Privacy Act
safeguards and contravene legislative intent.
Regarding the first point, the comment suggested that FALCON-SA
collects ``virtually unlimited'' categories of records. ICE developed
FALCON-SA to enhance ICE's ability to identify, apprehend, and initiate
appropriate legal proceedings against individuals who violate criminal,
civil, and administrative laws enforced by ICE. FALCON-SA supports the
investigative work of ICE HSI agents and criminal research specialists
by allowing them to search, review, upload, and analyze data pertinent
to an investigative lead or an ongoing case. While ``collection'' is
not an applicable concept in the context of actions that are undertaken
through FALCON-SA directly, DHS acknowledges a general risk of over-
collection of information. In circumstances when ICE directly collects
information, ICE only collects the minimum amount relevant and
necessary to further ICE's law enforcement mission. To that end, ICE
maintains information about DHS personnel, other law enforcement
personnel, victims, witnesses, and other
[[Page 45643]]
associated individuals who may be relevant in the course of an
investigation. ICE does not use FALCON-SA to collect any information
directly from an individual or about an individual, but rather ingests
information collected by other systems pursuant to the limitations in
their own privacy compliance documentation. HSI personnel determine
whether the information from other systems should be ingested into
FALCON-SA. ICE has established system safeguards to prevent the
inclusion of data that does not serve FALCON-SA's intended purpose,
which is to support ICE HSI law enforcement investigations and
analytical activities. As stated above, before being able to access
FALCON-SA, users must first complete privacy and information security
training that includes appropriate uses of system data, uploading and
tagging records, disclosure and dissemination of records, and system
security to mitigate any risk resulting from the collection of this
information. Further, as stated above, ICE also implements extensive
auditing of user actions in the system.
The commenter expressed concerns about disclosures pursuant to
routine uses proposed in the FALCON-SA SORN. First, disclosures
pursuant to the routine use exception are never mandatory, but instead
are at the discretion of the agency. Second, FALCON-SA users have a
requirement to document all disclosures made per these routine use
exceptions as well as disclosures made under any other authority.
Specifically, the commenter expressed concerns about Routine Uses
H, J, and O. Routine Use H authorizes disclosure to federal, state,
local, tribal, territorial, foreign, or international agencies for
background investigations. Under this Routine Use, DHS only shares
information about individuals' criminal, civil, and administrative law
violations in response to other agencies' background investigations.
This type of disclosure is limited to information that was collected
for law enforcement purposes. Limited sharing to assist in law
enforcement investigations is consistent with the purpose for
collection.
Routine Use J authorizes disclosure to international and foreign
partners in accordance with law and formal or informal international
arrangements. DHS enters into formal or informal information sharing
agreements that are consistent with the system's law enforcement
purposes. Further, information sharing partners must execute a
Memorandum of Understanding (MOU), Memorandum of Agreement (MOA), or an
equivalent agreement stipulating that they will only use DHS
information consistent with the purposes for which the information was
collected.
Routine Use O authorizes disclosure to the media and members of the
public with the prior approval of the Chief Privacy Officer, if the
disclosure is a matter of legitimate public interest. Like all Routine
Uses, disclosures are not mandatory. Media disclosures are limited in
scope and subject to restrictions and procedures located in the DHS
Privacy Policy Guidance Memorandum 2017-01 \2\ and other laws,
regulations, and policies. Absent a waiver by the subject of the
record, ICE may only release information to the media in those specific
situations detailed in the Routine Use. Similar to other law
enforcement agencies, for example, ICE may release the name, age,
gender, and the summary of a criminal charge if the subject of a record
has been charged with a crime and that information falls within ICE's
purview. ICE may also release limited fugitive information, which would
be beneficial to public safety.
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\2\ Available at https://www.dhs.gov/publication/dhs-privacy-policy-guidance-memorandum-2017-01.
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After consideration of public comments, the Department will
implement the rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information, Privacy.
For the reasons stated in the preamble, DHS amends 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. Amend appendix C to part 5 by adding paragraph 81 to read as
follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
81. The DHS/ICE-016 FALCON Search and Analysis (FALCON-SA)
System of Records consists of electronic and paper records and will
be used by DHS and its components. The FALCON-SA System of Records
is a repository of information held by DHS in connection with its
several and varied missions and functions, including the enforcement
of civil and criminal laws; investigations, inquiries, and
proceedings thereunder; and national security and intelligence
activities. The FALCON-SA System of Records 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 federal, state, local, tribal,
foreign, or international government agencies. The Secretary of
Homeland Security has exempted this system from the following
provisions of the Privacy Act, subject to limitations set forth in 5
U.S.C. 552a(c)(3) and (c)(4): (d); (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f); and (g)
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of
Homeland Security has exempted this system from the following
provisions of the Privacy Act, subject to limitations set forth in 5
U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and
(f) pursuant to 5 U.S.C. 552a(k)(2). 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. Information on a
completed investigation may be withheld and exempt from disclosure
if the fact that an investigation occurred remains sensitive after
completion.
(b) From subsection (d) (Access and Amendment 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 and would
impose an unreasonable administrative burden by requiring
investigations to be continually reinvestigated. 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
[[Page 45644]]
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. Compliance with subsection (e)(5)
would preclude DHS agents from using their investigative training
and exercise of good judgment to both conduct and report on
investigations.
(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.
(j) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2019-18749 Filed 8-29-19; 8:45 am]
BILLING CODE 9111-28-P