This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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REGISTER issue of each week.

Rules and Regulations Federal Register

38887 

Vol. 74, No. 149 

Wednesday, August 5, 2009 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2008–0169] 

Privacy Act of 1974: Implementation of 

Exemptions; U.S. Immigration and 

Customs Enforcement–005 Trade 

Transparency Analysis and Research 

(TTAR) System 

AGENCY: Privacy Office, DHS. 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security is issuing a final rule to amend 

its regulations to exempt portions of a 

new U.S. Immigration and Customs 

Enforcement system of records entitled 

the ‘‘U.S. ICE–005 Trade Transparency 

Analysis and Research (TTAR)’’ system 

from certain provisions of the Privacy 

Act. Specifically, the Department 

exempts portions of the TTAR system 

from one or more provisions of the 

Privacy Act because of criminal, civil, 

and administrative enforcement 

requirements. 

DATES: Effective Date: This final rule is 

effective August 5, 2009. 

FOR FURTHER INFORMATION CONTACT: Lyn 

Rahilly (202–732–3300), Privacy Officer, 

U.S. Immigration and Customs 

Enforcement, 500 12th Street, SW., 

Washington, DC 20024, e-mail: 

ICEPrivacy@dhs.gov, or Mary Ellen 

Callahan (703–235–0780), Chief Privacy 

Officer, Privacy Office, U.S. Department 

of Homeland Security, Washington, DC 

20528. 

SUPPLEMENTARY INFORMATION: 

Background 

The Department of Homeland 

Security (DHS) published a notice of 

proposed rulemaking in the Federal 

Register, 73 FR 64890, Oct. 31, 2008 

proposing to exempt portions of the U.S. 

ICE–005 Trade Transparency Analysis 

and Research (TTAR) system of records 

from one or more provisions of the 

Privacy Act because of criminal, civil, 

and administrative enforcement 

requirements. The TTAR system of 

records notice (SORN) was published 

concurrently in the Federal Register, 73 

FR 64967, Oct. 31, 2008. and comments 

were invited on both the proposed rule 

and SORN. No comments were received 

from the public regarding either the 

SORN or the proposed rule. Therefore, 

no changes have been made to the rule 

or the SORN, and DHS is implementing 

the final rule as published. 

In this rule, DHS is claiming 

exemption from certain requirements of 

the Privacy Act for TTAR because 

certain information in the system may 

contain information about ongoing law 

enforcement investigations. The TTAR 

system of records is maintained for the 

purpose of enforcing criminal laws 

pertaining to trade by examining U.S. 

and foreign trade data to identify 

anomalies in patterns of trade that may 

indicate trade-based money laundering 

or other import-export crimes that ICE is 

responsible for investigating. TTAR 

contains trade data collected by other 

Federal agencies and foreign 

governments, and financial data 

collected by U.S. Customs and Border 

Protection (CBP) and the U.S. 

Department of the Treasury Financial 

Crimes Enforcement Network (FinCEN). 

These exemptions are needed to 

protect information relating to DHS 

activities from disclosure to subjects or 

others related to these activities. 

Specifically, the exemptions are 

required to preclude subjects of these 

activities from frustrating these 

processes; to avoid disclosure of activity 

techniques; to protect the identities and 

physical safety of confidential 

informants and of border management 

and law enforcement personnel; to 

ensure DHS’s ability to obtain 

information from third parties and other 

sources; to protect the privacy of third 

parties; and to safeguard classified 

information. Disclosure of information 

to the subject of the inquiry could also 

permit the subject to avoid detection or 

apprehension. 

The exemptions published here are 

standard law enforcement and national 

security exemptions exercised by a large 

number of Federal law enforcement and 

intelligence agencies. The exemptions 

do not necessarily apply to all records 

described in the TTAR SORN. In 

appropriate circumstances, where 

compliance would not appear to 

interfere with or adversely affect the law 

enforcement purposes of this system 

and the overall law enforcement 

process, the applicable exemptions may 

be waived on a case by case basis. 

Regulatory Requirements 

A. Regulatory Impact Analyses 

Changes to Federal regulations must 

undergo several analyses. In conducting 

these analyses, DHS has determined: 

1. Executive Order 12866 Assessment 

This rule is not a significant 

regulatory action under Executive Order 

12866, ‘‘Regulatory Planning and 

Review’’ (as amended). Accordingly, 

this rule has not been reviewed by the 

Office of Management and Budget 

(OMB). Nevertheless, DHS has reviewed 

this rulemaking, and concluded that 

there will not be any significant 

economic impact. 

2. Regulatory Flexibility Act Assessment 

Pursuant to section 605 of the 

Regulatory Flexibility Act (RFA), 5 

U.S.C. 605(b), as amended by the Small 

Business Regulatory Enforcement and 

Fairness Act of 1996 (SBREFA), DHS 

certifies that this rule will not have a 

significant impact on a substantial 

number of small entities. The rule 

would impose no duties or obligations 

on small entities. Further, the 

exemptions to the Privacy Act apply to 

individuals, and individuals are not 

covered entities under the RFA. 

3. International Trade Impact 

Assessment 

This rulemaking will not constitute a 

barrier to international trade. The 

exemptions relate to civil or criminal 

investigations and agency 

documentation and, therefore, do not 

create any new costs or barriers to trade. 

4. Unfunded Mandates Assessment 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), (Pub. L. 

104–4, 109 Stat. 48), requires Federal 

agencies to assess the effects of certain 

regulatory actions on State, local, and 

tribal governments, and the private 

sector. This rulemaking will not impose 

an unfunded mandate on State, local, or 


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38888 Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Rules and Regulations 

tribal governments, or on the private 

sector. 

B. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(PRA) (44 U.S.C. 3501 et seq.) requires 

that DHS consider the impact of 

paperwork and other information 

collection burdens imposed on the 

public and, under the provisions of PRA 

section 3507(d), obtain approval from 

the Office of Management and Budget 

(OMB) for each collection of 

information it conducts, sponsors, or 

requires through regulations. DHS has 

determined that there are no current or 

new information collection 

requirements associated with this rule. 

C. Executive Order 13132, Federalism 

This action will not have a substantial 

direct effect on the States, on the 

relationship between the national 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, and therefore will 

not have federalism implications. 

D. Environmental Analysis 

DHS has reviewed this action for 

purposes of the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321–4347) and has determined that 

this action will not have a significant 

effect on the human environment. 

E. Energy Impact 

The energy impact of this action has 

been assessed in accordance with the 

Energy Policy and Conservation Act 

(EPCA) Public Law 94–163, as amended 

(42 U.S.C. 6362). This rulemaking is not 

a major regulatory action under the 

provisions of the EPCA. 

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: Pub. L. 107–296, 116 Stat. 

2135, 6 U.S.C. 101 et seq.; 5 U.S.C. 301, 

subpart A also issued under 5 U.S.C. 552. 

■ 2. At the end of appendix C to part 5, 

add the following new paragraph 14 to 

read as follows: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

14. The U.S. ICE–005 Trade Transparency 

Analysis and Research (TTAR) System 

consists of electronic and paper records and 

will be used by the Department of Homeland 

Security (DHS). TTAR is a repository of 

information held by DHS in connection with 

its several and varied missions and functions, 

including, but not limited to: The 

enforcement of civil and criminal laws; 

investigations, inquiries, and proceedings 

there under; and national security and 

intelligence activities. TTAR contains 

information that is collected by other federal 

and foreign government agencies and may 

contain personally identifiable information. 

Pursuant to exemption 5 U.S.C. 552a(j)(2) of 

the Privacy Act, portions of this system are 

exempt from 5 U.S.C. 552a(c)(3) and (4); (d); 

(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) 

and (e)(8); (f), and (g). Pursuant to 5 U.S.C. 

552a(k)(2), this system is exempt from the 

following provisions of the Privacy Act, 

subject to the limitations set forth in those 

subsections: 5 U.S.C. 552a(c)(3), (d), (e)(1), 

(e)(4)(G), (e)(4)(H), and (f). 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 the 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. 

(b) From subsection (d) (Access 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 the 

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 impossible administrative burden 

by requiring investigations to be 

continuously 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 

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 an 

investigation, thereby interfering with the 

related investigation and law enforcement 

activities. 

(e) From subsection (e)(3) (Notice to 

Subjects) because providing such detailed 

information would impede law enforcement 

in that it could compromise investigations 

by: Revealing the existence of an otherwise 

confidential investigation and thereby 

provide an opportunity for the subject of an 

investigation to conceal evidence, alter 

patterns of behavior, or take other actions 

that could thwart investigative efforts; reveal 

the identity of witnesses in investigations, 

thereby providing an opportunity for the 

subjects of the investigations or others to 

harass, intimidate, or otherwise interfere 

with the collection of evidence or other 

information from such witnesses; or reveal 

the identity of confidential informants, 

which would negatively affect the 

informant’s usefulness in any ongoing or 

future investigations and discourage 

members of the public from cooperating as 

confidential informants in any future 

investigations. 

(f) From subsections (e)(4)(G) and (H) 

(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, 

potential witnesses, and confidential 

informants. 

(g) From subsection (e)(5) (Collection of 

Information) because in 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 (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. 

(i) From subsection (g) to the extent that 

the system is exempt from other specific 

subsections of the Privacy Act relating to 

individuals’ rights to access and amend their 

records contained in the system. Therefore 

DHS is not required to establish rules or 

procedures pursuant to which individuals 


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Federal Register / Vol. 74, No. 149 / Wednesday, August 5, 2009 / Rules and Regulations 38889 

may seek a civil remedy for the agency’s: 

Refusal to amend a record; refusal to comply 

with a request for access to records; failure 

to maintain accurate, relevant, timely and 

complete records; or failure to otherwise 

comply with an individual’s right to access 

or amend records. 

Dated: July 30, 2009. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. E9–18620 Filed 8–4–09; 8:45 am] 

BILLING CODE 9111–28–P 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Part 210 

[FNS–2005–0009] 

RIN 0584–AD83 

Marketing and Sale of Fluid Milk in 

Schools 

AGENCY: Food and Nutrition Service, 

USDA. 

ACTION: Final Rule. 

SUMMARY: This rule finalizes the interim 

rule that implemented the statutory 

provision to prohibit direct or indirect 

restrictions on the sale or marketing of 

fluid milk on school premises or at 

school-sponsored events, at any time or 

in any place, in schools participating in 

the National School Lunch Program. 

This rule ensures that there are no 

policies or procedures in place that have 

the effect of restricting the sale or 

marketing of fluid milk. 

DATES: Effective Date: This action is 

effective September 4, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Rothstein, Chief, Policy and 

Program Development Branch, Child 

Nutrition Division, Food and Nutrition 

Service, U.S. Department of Agriculture, 

3101 Park Center Drive, Room 640, 

Alexandria, Virginia 22302–1594; or 

(703) 305–2590; or 

CNDINTERNET@fns.usda.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 102 of the Child Nutrition and 

WIC Reauthorization Act of 2004 (Pub. 

L. 108–265) amended section 9(a)(2) of 

the Richard B. Russell National School 

Lunch Act, 42 U.S.C. 1758, by adding a 

provision that prohibits schools 

participating in the National School 

Lunch Program (NSLP), or any person 

approved by a school participating in 

the NSLP, from directly or indirectly 

restricting the sale or marketing of fluid 

milk products at any time or in any 

place on school premises or at schoolsponsored events. The Food and 

Nutrition Service (FNS) published an 

interim rule on November 21, 2005 (70 

FR 70031) to prohibit school food 

authorities (SFAs) from entering into 

contracts that restrict the sale or 

marketing of fluid milk. 

Contracts between SFAs and vendors 

can be structured to restrict the variety 

or types of food choices a school may 

offer outside of the school meal 

programs. Prior to implementation of 

the interim rule, some exclusive 

vending contracts were found to have 

the potential to limit a school’s ability 

to sell or market fluid milk on school 

premises outside of the school meal 

programs; however, very few if any were 

found to actually limit the sale or 

marketing of fluid milk. 

The intent of this rule is to ensure no 

vending contract restricts a school’s 

ability or discretion to provide children 

access to fluid milk outside of the 

school meal programs. This rule does 

not require that participating schools 

sell or market fluid milk outside of the 

NSLP, or make fluid milk available at 

school-sponsored events. Furthermore, 

this rule does not affect the 

requirements for offering fluid milk as 

part of a reimbursable lunch in the 

NSLP as described in 7 CFR 210.10(m). 

For additional background 

information, please refer to the interim 

rule. 

II. Discussion of Public Comments and 

FNS Response 

FNS received a total of eight 

comments during the 180-day comment 

period that ended on May 22, 2006. The 

commenters included representatives 

from dairy industry trade associations 

(3), a school food authority (1), a State 

agency (1), and individuals (3). 

Of the eight comments received, six of 

the commenters, including one 

individual and the representatives from 

a school food authority, a State agency, 

and the trade associations, were in 

support of finalizing the requirements as 

established by the interim rule to 

prohibit any restriction of the sale or 

marketing of fluid milk in participating 

schools. 

One commenter in support of the 

provision also felt that the Department 

should extend the rulemaking to 

prohibit or restrict all exclusive 

beverage contracts in participating 

schools. 

Under existing NSLP regulations at 7 

CFR 210.21, SFAs must comply with 

requirements intended to ensure the 

integrity of procurement practices for 

the purchase of goods and services with 

funds from the nonprofit school 

foodservice account. Furthermore, NSLP 

regulations provide SFAs with the 

flexibility to enter into vending 

contracts that best meet their needs for 

foods and beverages sold outside of the 

school meal programs. This rulemaking 

is intended to ensure vending contracts 

do not directly or indirectly restrict the 

sale or marketing of fluid milk at any 

time or in any place on school premises 

or at school-sponsored events. Other 

procurement issues regarding vending 

contracts and agreements are outside the 

scope of this rulemaking. 

Two of the individual commenters 

expressed opposition to implementing 

the rule as final because of concern that 

it favors dairy industry interests and 

inhibits schools’ ability to choose 

whether to sell or market fluid milk. 

One commenter also disapproved of 

conventional dairy production 

practices. 

This rulemaking does not require or 

promote the sale or marketing of fluid 

milk outside the school meal programs. 

SFAs retain the authority to establish 

procurement contracts in accordance 

with Program regulations for foods sold 

outside of the school meal programs that 

best meet the nutritional and 

operational needs of their students and 

schools. 

Finally, discussion of conventional 

dairy production practices is outside the 

scope of this rulemaking. 

FNS considered all comments 

received and determined that these 

comments did not warrant any changes 

to the requirements established by the 

interim rule, or were outside the scope 

of the interim rule. FNS is issuing the 

interim rule as final without revision. 

III. Procedural Matters 

Executive Order 12866 

This rule has been determined to be 

non-significant and is not subject to 

review by the Office of Management and 

Budget under Executive Order 12866. 

Regulatory Flexibility Act 

This rule has been reviewed with 

regard to the requirements of the 

Regulatory Flexibility Act (5 U.S.C. 

601–612). Implementation of this rule is 

not expected to impose a significant 

economic impact on a substantial 

number of small entities. No later than 

the beginning of School Year 2006– 

2007, SFAs were required by section 

102 of Public Law 108–265 to ensure 

that any existing or new vending 

contracts did not include provisions 

that restrict the sale or marketing of 

fluid milk. Therefore, the number of 

SFAs expected to be impacted by this 

rule is minimal. 


srobinson on DSKHWCL6B1PROD with RULES