44574 Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / Rules and Regulations 

American Rescue Plan Act (ARP) 

Programs—The audit community, 

including GAO, requested that the 

agencies provide audit guidance 

expeditiously for the programs created 

under the ARP, since funds are material 

and many have complex compliance 

and reporting requirements. OMB is 

working with Federal awarding agencies 

to identify the new ARP programs with 

special compliance and reporting 

requirements. When completed by the 

agencies and reviewed by OMB, these 

audit guides will be published on the 

CFO.gov website. 

Deidre A. Harrison, 

Deputy Controller. 

[FR Doc. 2021–17363 Filed 8–12–21; 8:45 am] 

BILLING CODE 3110–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket No. DHS–2021–0028] 

Privacy Act of 1974: Implementation of 

Exemptions; U.S. Department of 

Homeland Security/ALL–046 

Counterintelligence Program System 

of Records 

AGENCY: U.S. Department of Homeland 

Security. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Homeland Security (DHS) is issuing a 

final rule to amend its regulations to 

exempt portions of a newly established 

system of records titled, ‘‘DHS/ALL–046 

Counterintelligence Program System of 

Records’’ from certain provisions of the 

Privacy Act. Specifically, the 

Department exempts portions from one 

or more provisions of the Privacy Act 

because of criminal, civil, and 

administrative enforcement 

requirements. 

DATES: This final rule is effective August 

13, 2021. 

FOR FURTHER INFORMATION CONTACT: For 

privacy questions please contact: Lynn 

Parker Dupree, (202) 343–1756, 

Privacy@hq.dhs.gov, Chief Privacy 

Officer, Privacy Office, U.S. Department 

of Homeland Security, Washington, DC 

20528–0655. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The U.S. Department of Homeland 

Security (DHS) published a notice of 

proposed rulemaking in the Federal 

Register, 85 FR 80667 (December 14, 

2020), proposing to exempt portions of 

the system of records from one or more 

provisions of the Privacy Act because of 

criminal, civil, and administrative 

enforcement requirements. In concert 

with that rulemaking, DHS issued a new 

system of records notice, ‘‘DHS/ALL– 

046 Counterintelligence Program 

System of Records’’ in the Federal 

Register, 85 FR 80800 (December 14, 

2020), outlining that DHS will collect 

and maintain records as part of the 

unified Counterintelligence Program 

across the Department. 

DHS invited comments on both the 

Notice of Proposed Rulemaking (NPRM) 

and System of Records Notice (SORN). 

II. Public Comments 

DHS received no comments on the 

NPRM and comments from one 

organization on the SORN. 

SORN 

DHS received comments suggesting 

that (1) the scope of the proposed 

records system is broad and DHS 

components’ access to records covered 

by the Counterintelligence Program 

System of Records create the risk that 

components would use the records 

system in ways that exceed their stated 

missions; (2) the proposed routine use 

exemptions are not narrowly tailored to 

the defined purpose of the SORN for 

which the records are collected, would 

be used to disclose records to foreign 

and private entities that are not subject 

to the Privacy Act, and would create 

substantial risks for potential data 

breaches; (3) the Counterintelligence 

Program System of Records creates a 

substantial risk of data breach since the 

Federal Government has demonstrated 

it is incapable of handling and 

safeguarding sensitive information; and 

(4) the proposed exemptions are 

unnecessary and limit individuals’ 

ability to correct harmful errors, thwart 

DHS’s public notice obligations, and 

permit unlimited data collection, even if 

unnecessary and irrelevant. After full 

consideration of public comments, the 

Department will implement the 

rulemaking as proposed for the reasons 

described in the NPRM and as described 

here in the final rule. 

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 83 to read as follows: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

83. The Department of Homeland Security 

(DHS)/ALL–046 Counterintelligence Program 

System of Records consists of electronic and 

paper records and will be used by DHS and 

its components. The DHS/ALL–046 

Counterintelligence Program 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 

there under; national security and 

intelligence activities; and protection of the 

President of the U.S. or other individuals 

pursuant to Section 3056 and 3056A of Title 

18. The system of records covers 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, 

pursuant to 5 U.S.C. 552a(j)(2), has exempted 

this system from the following provisions of 

the Privacy Act, 5 U.S.C. secs. 552a(c)(3), 

(c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), 

(e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (e)(12); (f); and 

(g)(1). Additionally, the Secretary of 

Homeland Security, pursuant to 5 U.S.C. 

552a(k)(1), (k)(2), and (k)(5), has exempted 

this system from the following provisions of 

the Privacy Act: 5 U.S.C. secs. 552a(c)(3); (d); 

(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); 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 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. 

(b) From subsection (d) (Access and 

Amendment to Records) because access to 

the records contained in this system of 


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Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / Rules and Regulations 44575 

1 In fiscal year 2012, the procedures for reviewing 

cases in the negative frame, discussed later, 

changed to include the State’s procedural processes 

in determining a negative case’s validity. FNS has 

referred to the negative error rate since then as the 

case and procedural error rate, or CAPER, to reflect 

this change. 

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. Further, permitting 

amendment to counterintelligence records 

after an investigation has been completed 

would impose an unmanageable 

administrative burden. 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 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. 

(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 (e)(12) (Matching 

Agreements) because requiring DHS to 

provide notice of a new or revised matching 

agreement with a non-Federal agency, if one 

existed, would impair DHS operations by 

indicating which data elements and 

information are valuable to DHS’s analytical 

functions, thereby providing harmful 

disclosure of information to individuals who 

would seek to circumvent or interfere with 

DHS’s missions. 

(j) From subsection (g)(1) (Civil Remedies) 

to the extent that the system is exempt from 

other specific subsections of the Privacy Act. 

Lynn Parker Dupree, 

Chief Privacy Officer, U.S. Department of 

Homeland Security. 

[FR Doc. 2021–17004 Filed 8–12–21; 8:45 am] 

BILLING CODE 9110–9N–P 

DEPARTMENT OF AGRICULTURE 

Food and Nutrition Service 

7 CFR Part 275 

[FNS–2018–0043] 

RIN 0584–AE64 

Supplemental Nutrition Assistance 

Program: Non-Discretionary Quality 

Control Provisions of the Agricultural 

Improvement Act of 2018 

AGENCY: Food and Nutrition Service 

(FNS), USDA. 

ACTION: Interim final rule. 

SUMMARY: The U. S. Department of 

Agriculture (the Department) is issuing 

this interim final rule to strengthen and 

improve the integrity and accuracy of 

the Food and Nutrition Service (FNS) 

Supplemental Nutrition Assistance 

Program (SNAP) Quality Control (QC) 

system by codifying statutory 

requirements enacted by the Agriculture 

Improvement Act of 2018 (2018 Farm 

Bill) that was signed into law on 

December 20, 2018. 

DATES: 

Effective date: August 13, 2021. 

Compliance date: August 13, 2021, 

except for the Paperwork Reduction Act 

(PRA) provisions, which are delayed 

pending approval by the Office of 

Management and Budget (OMB). The 

Food and Nutrition Service will publish 

a document in the Federal Register 

announcing the compliance date. 

Comment dates: Written comments on 

this interim final rule must be received 

on or before October 12, 2021 to be 

assured of consideration. We will 

consider comments on the Paperwork 

Reduction Act that we receive by 

October 12, 2021. 

ADDRESSES: The Food and Nutrition 

Service, USDA, invites interested 

persons to submit written comments on 

this interim final rule. Comments may 

be submitted in writing by one of the 

following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Mail: Send comments to Stephanie 

Proska, Branch Chief, Quality Control 

Branch, Program Accountability and 

Administration Division; Food and 

Nutrition Service; 1320 Braddock Place, 

5th Floor; Alexandria, Virginia 22314. 

• Email: Send comments to 

SNAPQCReform@usda.gov. Include 

Docket ID Number FNS–2018–0043, 

‘‘SNAP: Non-Discretionary QC 

provisions of Title IV of PL 115–334’’ in 

the subject line of the message. 

• All written comments submitted in 

response to this interim final rule will 

be included in the record and will be 

made available to the public. Please be 

advised that the substance of the 

comments and the identity of the 

individuals or entities submitting the 

comments will be subject to public 

disclosure. FNS will make the written 

comments publicly available on the 

internet via http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Stephanie Proska, Food and Nutrition 

Service, 1320 Braddock Place, 5th Floor; 

Alexandria, Virginia 22314, 

SNAPQCReform@usda.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Pursuant to Section 16 of the Food 

and Nutrition Act of 2008, as amended 

(FNA), each State agency is responsible 

for monitoring and improving its 

administration of SNAP and providing 

information from the SNAP quality 

control (QC) system. For QC reviews, 

States conduct monthly reviews of a 

statistically representative sample of 

households participating in SNAP 

(active cases) and households for whom 

participation was denied, terminated, or 

suspended (negative cases). These 

reviews measure the accuracy of SNAP 

eligibility and benefit determinations 

and ultimately serve as the basis for the 

SNAP payment error rate (PER), as 

defined in Section 16(c)(2)(A) of the 

FNA, and case and procedural error rate 

(CAPER),1 respectively. The results of 


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