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###### Department of Agriculture

###### Agricultural Marketing Service

          - [Docket No. AMS-FV-09-0034; FV-09-707]

# AGENCY:

USDA, Agricultural Marketing Service.

# ACTION:

Notice of a new system of records for information collected pursuant to the operation and enforcement of Research and Promotion programs.

# SUMMARY:

                        In accordance with the Privacy Act of 1974, as amended, the Agricultural Marketing Service (AMS) proposes to add a system of records to its inventory of records systems. The system of record will cover information collected under Research and Promotion programs in AMS. This notice is necessary to meet the requirements of the Privacy Act to publish in the                         **Federal Register**                         notice of the existence and character of record systems maintained by the agency. Although the Privacy Act requires only that the portion of the system that describes “routine uses” of the system be published for comment, we invite comment on all portions of this notice. AMS Research and Promotion branches and its components and offices have relied on preexisting Privacy Act system of records notices for the collection and maintenance of records that pertain to research and promotion program management.                    

# DATES:

The established system of records will be effective February 14, 2011 unless comments are received that would result in a contrary determination. Written comments must be submitted on or before January 14, 2011.

# ADDRESSES:

                        Interested persons are invited to submit written comments on the Internet at                         *http://www.regulations.gov*                         or to Kimberly Coy, Marketing Specialist, Research and Promotion Branch, FV, AMS, USDA, Stop 0244, Room 0634-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244; telephone (202) 720-9915 or (888) 720-9917 (toll free) or e-mail                         *kimberly.coy@ams.usda.gov.*

                        All comments received must include the agency name and docket number for this notice. All comments received will be posted without change to                         *http://www.regulations.gov,*                         including any personal information provided. For access to the docket to read background documents or comments received, go to                         *http://www.regulations.gov.*

# FOR FURTHER INFORMATION CONTACT:

                        For general questions please contact: Kimberly Coy, Marketing Specialist, Research and Promotion Branch, FV, AMS, USDA, Stop 0244, Room 0634-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244; telephone (202) 720-9915 or (888) 720-9917 (toll free) or e-mail                         *kimberly.coy@ams.usda.gov.*

# SUPPLEMENTARY INFORMATION:

## I. Background

The Department of Agriculture (USDA), through AMS, helps the agricultural industries develop and expand domestic and international markets for their commodities through self-help programs that conduct research and promotion activities. There are currently 18 Research and Promotion programs in AMS. AMS exercises its authority and oversight of these Research and Promotion programs on specific domestic and imported agricultural commodities. As part of its authority and oversight role of various Research and Promotion programs, AMS requires information and data relating to the production and the importation of those products and commodities that fall within its authority. Part of this information is maintained by U.S. Customs and Border Protection (CBP) in the Automated Commercial Environment (ACE). In support of these requirements, CBP through ACE collects and transmits the identified information as it relates to the import of various agricultural commodities and products. AMS agrees that the information obtained from CBP will only be used for the purposes of implementing AMS laws and regulations, including using this data for regulatory enforcement actions brought in USDA administrative proceedings and/or Federal courts, preparing and releasing summary and statistical market news reports on agricultural commodities and related products, verification of payment of assessments, and referendum procedures. However, any further dissemination not expressly identified here will not occur without the express written permission of CBP. AMS further agrees that any request pursuant to the FOIA (5 U.S.C. 552) for CBP information transferred to AMS will be sent to CBP by secure connectivity for response. The information will be reviewed only by authorized AMS personnel on a roll base and a need-to-know basis and will be kept secure.

In regards to the information collected from domestic production, AMS and the commodity boards or councils maintain such confidential information as required under the specific statutes and government policies relating to confidential information.

                    While an order issued under the review and guidance of AMS is in effect with respect to an agricultural commodity, assessments shall be paid by producers, first handlers, or others in the marketing chain with respect to the agricultural commodity produced and marketed in the United States and paid by importers with respect to the agricultural commodity imported into the United States, if the imported agricultural commodity is covered by the order. Assessments required under an order shall be remitted to the board established under the order at the time and in the manner prescribed by the order. Late-payment and interest charges may be levied on each person subject to an order who fails to remit an assessment. The rate for the charges shall be specified by the Secretary. The board/council, with the approval of the Secretary, may enter into agreements authorizing other organizations to collect assessments and possibly personally identifiable information in its behalf. Any such organization shall be required to maintain the confidentiality of such information as is required by the board/council for collection purposes. Persons failing to remit total assessments due in a timely manner may also be subject to actions under Federal debt collection procedures. In order to verify that assessments are indeed required to be                           ( print page 78204)                        paid, and if so, that assessments required are considered late, the Department must collect information from the board/council as well as the assessment payer.                

Each order shall establish a board/council to carry out a program of generic promotion, research, and information regarding the agricultural commodity covered by the order. Each board shall consist of the number of members as established by the order for each specific commodity. In addition to members, the Secretary may also provide for alternates on the board. The Secretary shall appoint the members and any alternates of a board from among producers of the agricultural commodity and first handlers and others in the marketing chain as appropriate. If imports of the agricultural commodity covered by an order are subject to assessment, the Secretary shall also appoint importers as members of the board and as alternates, if alternates are included on the board. The Secretary may appoint one or more members of the general public to each board. The Secretary may make appointments from nominations made pursuant to the method set forth in each commodity's respective order. In order to nominate members to the board, the department must collect information to verify identity and eligibility to serve on the boards/councils.

AMS Research and Promotion branches and its components and offices have relied on preexisting Privacy Act system of records notices for the collection and maintenance of records that pertain to research and promotion program management.

As part of its efforts to streamline and consolidate its Privacy Act record systems, AMS is establishing a new Research and Promotion program-wide system of records under the Privacy Act (5 U.S.C. 552a) for research and promotion records management. This will ensure that all AMS Research and Promotion branches follow the same privacy rules for collecting and handling individuals' security management records.

## II. Privacy Act

                    The Privacy Act of 1974, as amended (5 U.S.C. 552a) requires agencies to publish in the                     **Federal Register**                     any notice of a new or revised system of records maintained by the agency. A system of records is a group of any records under the control of any agency, from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to an individual. The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates personally identifiable information. In the Privacy Act, an individual is defined to encompass United States citizens and legal permanent residents. As a matter of policy, AMS 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 their own records that are maintained in a system of records in the possession or under the control of AMS by complying with AMS Privacy Act regulations.                

                    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 in order to make agency recordkeeping practices transparent, to notify individuals regarding the uses to which personally identifiable information is put, and to assist individuals to more easily find such files within the agency. Below is a description of the USDA Research and Promotion Programs System of Records Notice.                

## SYSTEM NUMBER:

USDA/AMS-12

### SYSTEM NAME:

USDA/Research and Promotion Programs Information Retrieval (RPPIR) (New)

### SECURITY CLASSIFICATION:

Unclassified, sensitive, for official use only, and classified.

### SYSTEM LOCATION:

Records are maintained at several USDA Headquarters locations and in Research and Promotion Boards or Councils offices in the USDA, Agricultural Marketing Service, 1400 Independence Avenue, SW., Washington, DC 20250-0244, and in field locations.

### CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

Categories of individuals covered by this system include: (1) All Research and Promotion Board or Council nominees including, but not limited to: Producers, handlers, importers, foreign producers, and at-large members; (2) importers that are self-proprietors and maintain a valid Customs importer number; (3) all individuals covered by a Research and Promotion program under AMS supervision; (4) individuals who are regulated by the subject Acts and Regulations who may be investigated for possible violations; including customers, producers, handlers, importers, plant operators, farmers, licenses, inspectors, graders, weighers, classers, collaborators, agents, appointees, samplers, and other non-Federal employees; and (5) any other individuals involved in a review or investigation as an alleged violator.

### CATEGORIES OF RECORDS IN THE SYSTEM:

The system consists of investigatory material which may include intra- and interdepartmental recommendations pertaining to an alleged violation of the subject Acts. It may include name, social security number, tax identification number, employment history, performance ratings, criminal history, financial information, background information, biographical data, customs operations, license files, bond records, commodity information, power of attorney, and case file information. The case file contains evidence gathered in the course of the review or investigations. The system will also contain the following records:
    - Records relating to nominations to the board/council including, but not limited to:

○ Individual's name;

○ Social Security number;

○ Date of birth;

○ Address;

○ Employment information;

○ Professional affiliation(s);

○ Education;

○ Tax Identification Number;

○ Income sources for amounts over $10,000; and

○ Criminal history.
    - Records relating to compliance including, but not limited to:

○  The total quantity of commodity acquired during the reporting period;

○  Total quantity handled during the period;

○  The total quantity for sale from the first handler's own production;

○  The quantity purchased from a first handler or importer responsible for paying the assessment;

○  The date assessment payments were made; and

○  The first handler's tax identification number.

○  For importers, the information may include: The total quantity imported during such reporting period;

○  A record of each lot imported during the reporting period including quantity, date, country of origin, and port of entry; and

○  The importer of record tax identification number.
    - Records relating to customs include, but not limited to:       ( print page 78205)      

○  Importer Number (tax identification number, Duns number, etc.)

○  Importer name and address (need physical address)

○  Importer contact name, phone

○  Country

○  Port

○  Collection date

○  Trans number

○  Terminal ID

○  Collection type

○  Document number

○  Quantity (volume)

○  Harmonized Tariff Schedule Code

○  Assessment collected

### AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

Privacy Act of 1974, as amended, 5 U.S.C. 552a; Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 7411-7425) (Blueberries, Honey Packers and Importers, Lamb, Mangos, Peanuts, Sorghum, and other laws, statutes, regulations or orders as designated), Beef Research and Promotion Act (7 U.S.C. 2901-2911), Cotton Research and Promotion Act (7 U.S.C. 2101-2118), Dairy Production Stabilization Act of 1983 (7 U.S.C. 4501-4514), Egg Research and Consumer Information Act of 1974 (7 U.S.C. 2701-2718), Fluid Milk Promotion Act of 1990 (7 U.S.C. 6401-6417), Hass Avocado Promotion, Research, and Information Act of 2000 (7 U.S.C. 7801-7813), Mushroom Promotion, Research, and Consumer Information Act of 1990 (7 U.S.C. 6101-6112), Popcorn Promotion, Research, and Consumer Information Act (7 U.S.C. 7481-7491), Pork Promotion, Research, and Consumer Information Act of 1985 (7 U.S.C. 4801-4819), Potato Research and Promotion Act (7 U.S.C. 2611-2627), Soybean Promotion, Research, and Consumer Information Act of 1990 (7 U.S.C. 6301-6311), Watermelon Research and Promotion Act (7 U.S.C. 4901-4916), 7 CFR Parts 1150, 1160, 1205, 1206, 1207, 1209, 1210, 1212, 1215, 1216, 1218, 1219, 1220, 1221, 1230, 1250, 1260, 1280, and all the various agricultural products and commodities in which AMS Research and Promotion has present or future statutory or regulatory interest.

### PURPOSE:

The purpose of this system is to maintain the information to verify the eligibility of persons nominated to positions to the commodity boards as well as to verify the eligibility of persons applying for exemptions or credit of assessments. The system also permits AMS to use CBP ACE DATA to ensure compliance with AMS laws and regulations, and publicly disseminate in aggregate form daily market information for various individual agricultural commodities and related products. This system also allows the collection of information related to all AMS Research and Promotion programs for referendum purposes and for compliance cases to ensure compliance with AMS laws and regulations.

### ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:

1. Routine use for disclosure to the Department of Justice for use in litigation: To the Department of Justice when: (a) The agency or any component thereof; or (b) any employee of the agency in his or her official capacity where the Department of Justice has agreed to represent the employee; (c) any employee of the agency in his or her individual capacity where the agency or the Department of Justice has agreed to represent the employee; or (d) the United States Government, is a party to litigation or has an interest in such litigation, and by careful review, the agency determines that the records are both relevant and necessary to the litigation and the use of such records by the Department of Justice is therefore deemed by the agency to be for a purpose that is compatible with the purpose for which the agency collected the records.

2. Routine use for disclosure to adjudicative body in litigation: To a court or adjudicative body in a proceeding when: (a) The agency or any component thereof; or (b) any employee of the agency in his or her official capacity; or (c) any employee of the agency in his or her individual capacity where the agency has agreed to represent the employee; or (d) the United States Government, is a party to litigation or has an interest in such litigation, and by careful review, the agency determines that the records are both relevant and necessary to the litigation and the use of such records is therefore deemed by the agency to be for a purpose that is compatible with the purpose for which the agency collected the records.

3. Routine use for law enforcement purposes: When a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto, disclosure may be made to the appropriate agency, whether Federal, foreign, State, local, or tribal, or other public authority responsible for enforcing, investigating, or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto, if the information disclosed is relevant to any enforcement, regulatory, investigative or prosecutive responsibility of the receiving entity.

4. Routine use for disclosure to a Member of Congress at the request of a constituent: To a Member of Congress or to a Congressional staff member in response to an inquiry of the Congressional office made at the written request of the constituent about whom the record is maintained.

5. Routine use for disclosure to National Archives and Records Administration (NARA): Records from this system of records may be disclosed to the National Archives and Records Administration or to the General Services Administration for records management inspections conducted under 44 U.S.C. 2904 and 2906.

6. Routine use for disclosure to contractors under section (m): To agency contractors, grantees, experts, consultants or volunteers who have been engaged by the agency to assist in the performance of a service related to this system of records and who need to have access to the records in order to perform the activity. Recipients shall be required to comply with the requirements of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C. 552a(m).

7. Routine use to HHS parent locator system for finding parents who don't pay child support: The name and current address of record of an individual may be disclosed from this system of records to the parent locator service of the Department of HHS or authorized persons defined by Public Law 93-647. 42 U.S.C. 653

8. Routine use for use in nominations, employment, clearances, licensing, contract, grant or other benefits decisions by the agency: Disclosure may be made to Federal, State, local or foreign agency maintaining civil, criminal, or other relevant enforcement records, or other pertinent records, or to another public authority or professional organization, if necessary to obtain information relevant to an investigation concerning the nomination of a board or council member, retention of an employee or other personnel action (other than hiring), the retention of a security clearance, the letting of a contract, or the issuance or retention of a grant, or other benefit.

                        9. For use in nominations, employment, clearances, licensing, contract, grant or other benefit decisions by other than the agency: Disclosure                               ( print page 78206)                            may be made to a Federal, State, local, foreign, or tribal or other public authority the fact that this system of records contains information relevant to the nomination of a board or council member, retention of an employee, the retention of a security clearance, the letting of a contract, or the issuance or retention of a license, grant, or other benefit. The other agency or licensing organization may then make a request supported by the written consent of the individual for the entire record if it so chooses. No disclosure will be made unless the information has been determined to be sufficiently reliable to support a referral to another office within the agency or to another Federal agency for criminal, civil, administrative, personnel, or regulatory action.                    

10. MANDATORY Routine Use—information security breaches: To appropriate agencies, entities, and persons when: (a) [the agency] suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) 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) that rely upon the compromised information; and (c) 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.

                        11. To comply with FFATA and similar statutory requirements for public disclosure in situations where records reflect loans, grants, or other payments to members of the public: USDA will disclose information about individuals from this system of records in accordance with the Federal Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282; codified at 31 U.S.C. 6101,                         *et seq.*); section 204 of the E-Government Act of 2002 (Pub. L. 107B347; 44 U.S.C. 3501 note), and the Office of Federal Procurement Policy Act (41 U.S.C. 403*et seq.*), or similar statutes requiring agencies to make available publicly, information concerning Federal financial assistance, including grants, sub-grants, loan awards, cooperative agreements and other financial assistance; and contracts, subcontracts, purchase orders, task orders, and delivery orders.                    

### DISCLOSURE TO CONSUMER REPORTING AGENCIES:

To a “consumer reporting agency” as defined in the Fair Credit Reporting Act (12 U.S.C. 1681a(f) or the Federal Claims Collection Reporting Act of 1966 (15 U.S.C. 3701(a)(3) in accordance with section 3711(f) of Title 31.

### POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM:

### STORAGE:

Records are stored in paper and electronic format.

### RETRIEVABILITY:

Records are retrieved by individual's name or other unique identifier.

### SAFEGUARDS:

All records containing personal information are maintained in secured file cabinets or in restricted areas, in which access is limited to authorized personnel. Access to computerized data is password-protected and under the responsibility of the system manager and subordinates. The database administrator has the ability to review audit trails, thereby permitting regular ad hoc monitoring of computer usage.

### RETENTION AND DISPOSAL:

Records are maintained for a period of 5 years, as required by 7 CFR part 6. The records are then destroyed in accordance with USDA procedures.

### SYSTEM MANAGER AND ADDRESS:

A System Manager manages the system for each of the following AMS Programs: Cotton and Tobacco, Dairy, Fruit and Vegetable, Livestock and Seed, Poultry, Science and Technology, Transportation and Marketing, Compliance and Analysis Offices, and the Information Technology Services Program. For general information, you may contact Douglas Bailey, Chief, Information Technology, USDA/ST/IT/OCIO, Mail Stop 1742, 1400 Independence Avenue, SW., Washington, DC 20250-1064.

### NOTIFICATION PROCEDURE:

Any individual may request information concerning himself/herself from this system from the Office of the System Manager having custody of his records at the system location. Individuals seeking notification to access any record contained in this system of records, or seeking to contest its contents may submit a request in writing to Douglas C. Bailey, Chief Information Officer, Department of Agriculture, Agricultural Marketing Service, Mail Stop 0244, Room 1752-S, 1400 Independence Avenue, SW., Washington, DC 20250-0244.

                        When seeking records about yourself from this system of records or any other Departmental system of records, your request must conform to the Privacy Act regulations set forth in 7 CFR part 1. You must first verify your identity, meaning that you must provide your full name, current address, and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain more information for this purpose from the Privacy Act Officer, FOIA,                         *http://www.da.usda.gov/​foia.htm,*                         or (202) 720-2498. In addition you should provide the following:                    
    - An explanation of why you believe the Department would have information on you;
    - Identify which component(s) of the Department you believe may have the information about you;
    - Specify when you believe the record would have been created;
    - Provide any other information that will help the FOIA staff determine which AMS component agency may have responsive records;

If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his or her agreement for you to access his or her records.

Without complete information, the component(s) will not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.

### RECORDS ACCESS PROCEDURE:

See the “Notification Procedure” above.

### CONTESTING RECORD PROCEDURES:

See the “Notification Procedure” above.

### RECORD SOURCE CATEGORIES:

These records contain information obtained from the individual who is the subject of these records and from CBP and information the individual provided to CBP.

### EXEMPTIONS CLAIMED FOR THE SYSTEM:

                        Pursuant to 5 U.S.C. 552a(k)(2), material in this system of records is exempt from the requirements of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) because it consists of investigatory material compiled for law enforcement purposes 7 CFR 1.123.                              ( print page 78207)    

5 U.S.C. 552a(d) requires that an individual be given access to, and the right to, amend files pertaining to him or her. Individual access to these files could impair investigations in progress and alert subjects involved in the investigations that their actions are under scrutiny, which may allow them the opportunity to alter their actions or prevent detection of any illegal actions to escape prosecution. Release of these records would also disclose investigative techniques and procedures employed by AMS and other agencies, which would hamper law enforcement activities.

5 U.S.C. 552a(c)(3) requires that an accounting of disclosures be made available to an individual. This would impair investigations by alerting subjects of investigations to the existence of those investigations. Release of the information could result in the altering or destruction of documentary evidence, improper influencing of witnesses, and other activities that could impede or compromise the investigation. 5 U.S.C. 552a(e)(1) requires that only such information as is relevant and necessary to accomplish a purpose of the agency required by statute or Executive Order can be maintained. Exemption from this provision is required because relevance and necessity can be determined only after information is evaluated. Evaluation at the time of collection is too consuming for the efficient conduct of an investigation. Further, determining relevance or necessity of specific information in the early stages of an investigation is not possible.

5 U.S.C. 552a(e)(4)(G) and (H), and (f) provides for notification and access procedures. These requirements, if followed, would necessarily alert subjects of investigations to the existence of the investigation which could impair the investigation. Access to the records likewise could interfere with investigative and enforcement proceedings; disclose confidential informants and information; constitute an unwarranted invasion of personal privacy of others; and reveal confidential investigative techniques and procedures.

5 U.S.C. 552a(e)(4)(I), requires that categories of sources of records in each system be published. Application of this provision could disclose investigative techniques and procedures and cause sources to refrain from giving such information because of fear of reprisal, or fear of breach of promises of anonymity and confidentially. This would compromise the ability to conduct investigations.

Dated: December 8, 2010.

Thomas J. Vilsack,

Secretary.

[FR Doc. 2010-31400 Filed 12-14-10; 8:45 am]

BILLING CODE 3410-02-P