[Federal Register Volume 62, Number 221 (Monday, November 17, 1997)]
[Rules and Regulations]
[Pages 61207-61210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29606]
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Rules and Regulations
Federal Register
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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
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Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 /
Rules and Regulations
[[Page 61207]]
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DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 1
Administrative Regulations; Privacy Act Regulations
AGENCY: Office of the Secretary, Agriculture.
ACTION: Final rule.
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SUMMARY: This rule exempts four systems of records from certain
sections of the Privacy Act (5 U.S.C. 552a) pursuant to U.S.C. 552a(j).
The previous list of exempt systems published in the Federal Register
at 54 FR 39517, September 27, 1989, was omitted inadvertently from 7
CFR 1.122. In addition, this rule changes the list of Office of
Inspector General (OIG) systems of records covered under those sections
to reflect changes in the names of two of the systems of records, to
add a third system which is being split-off from one of the other
systems, and to include the investigative records portion of a fourth
system.
These amendments are being made in conjunction with the notice of
amendments to the USDA/OIG systems of records which is published
elsewhere in today's issue of the Federal Register.
DATES: Effective November 17, 1997.
FOR FURTHER INFORMATION CONTACT: Paula F. Hayes, Assistant Inspector
General for Policy Development and Resources Management, Office of
Inspector General, USDA, Washington, D.C. 20250-2310 (202-720-6979).
SUPPLEMENTARY INFORMATION: OIG has revised its systems of records in
order to more accurately meet its recordkeeping practices and needs.
The system formerly know as USDA/OIG-2, ``Intelligence Records,'' has
been redesignated as ``Informant and Undercover Agent Records.'' The
system previously designated as USDA/OIG-3 ``Investigative Files and
Subject/Title Index,'' has been divided into two systems to be known as
USDA/OIG-3, ``Investigative Files and Automated Investigative Indices
System'' and USDA/OIG-4, ``OIG Hotline Complaint Records.'' And USDA/
OIG-5, known as ``Management Information and Data Analysis System,''
has been renamed ``Consolidated Assignments, Personnel Tracking, and
Administrative Information Network (CAPTAIN).''
These changes are not considered substantive because the basic
records covered by the exemptions in 7 CFR 1.22 and 1.123 remain the
same as before. The justifications for these exemptions were published
as a proposed rule at 54 FR 11204-11206, March 17, 1989, and were
further explained in a final rule published at 54 FR 39517, September
27, 1989.
The exemption revision applies to four Privacy Act systems of
records: USDA/OIG-2, ``Informant and Undercover Agent Records;'' USDA/
OIG-3, ``Investigative Files and Automated Investigative Indices
System;'' USDA/OIG-4, ``OIG Hotline Complaint Records;'' and the
Investigations Subsystem and Investigative Employee Time Records
portions of USDA/OIG-5, ``Consolidated Assignments, Personnel Tracking,
and Administrative Information Network (CAPTAIN).''
Pursuant to 5 U.S.C. 552a(k)(2), (5) and 552a(j)(2), exemption of
records in four systems of records of OIG, USDA/OIG-2, USDA/OIG-3,
USDA/OIG-4, and the Investigations Subsystem and Investigative Employee
Time Records portions of USDA/OIG-5, is authorized to the extent that
information in the systems pertains to criminal law enforcement. This
includes, but is not limited to information complied for the purpose of
identifying criminal offenders and alleged offenders and consisting of
identifying data and notations of arrests, the nature and disposition
of criminal charges, sentencing, confinement, release, and parole and
probation status; information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, that
is associated with an identifiable individual; or reports of
enforcement of the criminal laws from arrest or indictment through
release from supervision.
The disclosure of information contained in the criminal
investigative files, including the names of persons or agencies to whom
the information has been transmitted, would substantially compromise
the effectiveness of OIG investigations. Knowledge of such
investigations could enable suspects to take such action as is
necessary to prevent detection of criminal activities, conceal or
destroy evidence, or escape prosecution. Disclosure of this information
could lead to the intimidation of, or harm to, informants, witnesses,
and their families, and could jeopardize the safety and well-being of
investigative and related personnel and their families. The imposition
of certain restrictions on the manner in which investigative
information is collected, verified, or retained would significantly
impede the effectiveness of OIG investigatory activities, and in
addition could preclude the apprehension and successful prosecution of
persons engaged in fraud or criminal activity.
Information in these systems is maintained pursuant to official
Federal law enforcement and criminal investigation functions of the
Office of Inspector General. The exemptions are needed to maintain the
integrity and confidentiality of criminal investigations, to protect
individuals from harm, and for the following reasons:
(1) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting
of each disclosure of records available to the individual named in the
record at his/her request. These accountings must state the date,
nature, and purpose of each disclosure of a record and the name and
address of the recipient. Accounting for each disclosure would alert
the subjects of an investigation to the existence of the investigation
and the fact that they are subjects of the investigation. The release
of such information to the subjects of an investigation would provide
them with significant information concerning the nature of the
investigation, and could seriously impede or compromise the
investigation, endanger the physical safety of confidential sources,
witnesses, law enforcement personnel and their families, and lead to
the improper influencing of witnesses, the destruction of evidence, or
the fabrication of testimony.
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(2) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or
other agency about any correction or notation of dispute made by the
agency in accordance with subsection (d) of the Act. Since these
systems of records are being exempted from subsection (d) of the Act,
concerning access to records, this section is inapplicable to the
extent that these systems of records will be exempted from subsection
(d) of the Act.
(3) 5 U.S.C. 552a(d) requires an agency to permit an individual to
gain access to records pertaining to him/her, to request amendment to
such records, to request a review of an agency decision not to amend
such records, and to contest the information contained in such records.
Granting access to records in these systems of records could inform the
subject of an investigation of an actual or potential criminal
violation, of the existence of that investigation, of the nature and
scope of the information and evidence obtained as to his/her
activities, or the identity of confidential sources, witnesses, and law
enforcement personnel, and could provide information to enable the
subject to avoid detection or apprehension. Granting access to such
information could seriously impede or compromise an investigation,
endanger the physical safety of confidential sources, witnesses, law
enforcement personnel and their families, lead to the improper
influencing of witnesses, the destruction of evidence, or the
fabrication of testimony, and disclose investigative techniques and
procedures. In addition, granting access to such information could
disclose classified security-sensitive, or confidential business
information and could constitute an unwarranted invasion of the
personal privacy of others.
(4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required by statute or
by executive order of the President. The application of this provision
could impair investigations and law enforcement because it is not
always possible to detect the relevance or necessity of specific
information in the early stages of an investigation. Relevance and
necessity are often questions of judgment and timing, and it is only
after the information is evaluated that the relevance and necessity of
such information can be established. In addition, during the course of
the investigation, the investigator may obtain information which is
incidental to the main purpose of the investigation but which may
relate to matters under the investigative jurisdiction of another
agency. Such information cannot readily be segregated. Furthermore,
during the course of the investigation, the investigator may obtain
information concerning the violation of laws other than those which are
within the scope of his/her jurisdiction. In the interest of effective
law enforcement, OIG investigators should retain this information,
since it can aid in establishing patterns of criminal activity and can
provide valuable leads for other law enforcement agencies.
(5) 5 U.S.C. 552a(e)(2) requires an agency to collect information
to the greatest extent practicable directly from the subject individual
when the information may result in adverse determinations about an
individual's rights, benefits, and privileges under Federal programs.
The application of this provision could impair investigations and law
enforcement by alerting the subject of an investigation or the
existence of the investigation, thereby enabling the subject to avoid
detection or apprehension, to influence witnesses improperly, to
destroy evidence, or to fabricate testimony. Moreover, in certain
circumstances the subject of an investigation cannot be required to
provide information to investigators, and information must be collected
from other sources. Furthermore, it is often necessary to collect
information from sources other than the subject of the investigation to
verify the accuracy of the evidence collected.
(6) 5 U.S.C. 552a(e)(3) requires an agency to inform each person to
whom it ask to supply information, on a form that can be retained by
the person, of the authority under which the information is sought and
whether disclosure is mandatory or voluntary; of the principal purposes
for which the information is intended to be used; of the routine uses
which may be made of the information and of the effects on the person,
if any, of not providing all or any part of the requested information.
The application of the provision could provide the subject of an
investigation with substantial information about the nature of that
investigation, which could interfere with the investigation. Moreover,
providing such a notice to the subject of an investigation could
seriously impede or compromise an undercover investigation by revealing
its existence and could endanger the physical safety of confidential
sources, witnesses, and investigators by revealing their identities.
(7) 5 U.S.C. 552a(e)(4) (G) and (H) requires an agency to publish a
Federal Register notice concerning its procedures for notifying an
individual, at his/her request, if the system of records contains a
record pertaining to him/her, how to gain access to such a record, and
how to contest its content. Since these systems of records are being
exempted from subsection (f) of the Act, concerning agency rules, and
subsection (d) of the Act, concerning access to records, these
requirements are inapplicable to the extent that these systems of
records will be exempted from subsection (f) and (d) of the Act.
Although the systems would be exempt from these requirements. OIG has
published information concerning its notification, access, and contest
procedures because, under certain circumstances, OIG could decide it is
appropriate for an individual to have access to all or a portion of
his/her records in these systems of records.
(8) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal
Register notice concerning the categories of sources of records in the
system of records. Exemption from this provision is necessary to
protect the confidentiality of the sources of information, to protect
the privacy and physical safety of confidential sources and witnesses,
and to avoid the disclosure of investigative techniques and procedures.
Although the systems will be exempt from this requirement, OIG has
published such a notice in broad generic terms.
(9) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in making any
determination about the individual. Since the Act defines ``maintain''
to include the collection of information, complying with this provision
could prevent the collection of any data not shown to be accurate,
relevant, timely, and complete at the moment it is collected. In
collecting information for criminal law enforcement purposes, it is not
possible to determine in advance what information is accurate,
relevant, timely, and complete. Facts are first gathered and placed
into a logical order to prove or disprove objectively the criminal
behavior of an individual. Material which seems unrelated, irrelevant,
or incomplete when collected can take on added meaning or significance
as the investigation progresses. The restrictions of this provision
could interfere with the preparation of a complete investigative
report, thereby impeding effective law enforcement.
(10) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to
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serve notice on an individual when any record on such individual is
made available to any person under compulsory legal process when such
process a matter of public record. Complying with this provision could
prematurely reveal an ongoing criminal investigation to the subject of
the investigation.
(11) 5 U.S.C. a(f)(1) requires an agency to promulgate rules which
shall establish procedures where by an individual can be notified in
response to his/her request if of any system of records named by the
individual contain a record pertaining to him/her. The application of
this provision could impede or compromise an investigation or
prosecution if the subject of an investigation were able to use such
rules to learn of the existence of an investigation before it could be
completed. In addition, mere notice of the fact of an investigation
could inform the subject and others that their activities are under or
may become the subject of an investigation and could enable the
subjects to avoid detection or apprehension, to influence witnesses
improperly, to destroy evidence, or to fabricate testimony. Since these
systems would be exempt from subsection (d) of the Act, concerning
access to records, the requirements of subsection (F)(2) through (5) of
the Act, concerning agency rules for obtaining access to such records,
are inapplicable to the extent that these systems of records will be
exempted from subsection (d) of the Act. Although these systems would
be exempt from the requirements of subsection (f) of the Act, OIG has
promulgated rules which establish Agency procedures because under
certain circumstances, it could be appropriate for an individual to
have access to all or a portion of his/her records in these systems of
records.
(12) 5 U.S.C. 552a(g) provides for civil remedies if an agency
fails to comply with the requirements concerning access to records
under subsections (d)(1) and (3) of the Act; maintenance of records
under subsection (e)(5) of the Act; and any other provision of the Act,
or any rule promulgated thereunder, in such a way as to have an adverse
effect on an individual. Since these systems of records would be exempt
from subsections (c)(3) and (4), d, e(1), (2), (3) and 4(G) and (H),
(e)(1) through (5) and (8) and (f) of the Act, the provisions of
subsection (g) of the Act would be inapplicable to the extent that
these systems of records will be exempted from those subsections of the
Act.
Under 5 U.S.C. 552a(j)(2), the head of any agency may by rule
exempt any system of records within the agency from certain provisions
of the Privacy Act of 1974, if the system of records is maintained by
an agency or component thereof which performs as its principal function
any activity pertaining to the enforcement of criminal laws and which
consists of:
(a) Information compiled for the purpose of identifying individual
criminal offenders and alleged offenders and consisting only of
identifying data and notations of arrests, the nature and disposition
of criminal charges, sentencing, confinement, release, and parole and
probation status;
(b) Information compiled for the purpose of a criminal
investigation including reports of informants and investigators, and
associated with an identifiable individual; or
(c) Reports identifiable to an individual compiled at any stage of
the process of enforcement of the criminal laws from arrest or
indictment through release from supervision.
Under 5 U.S.C. 552a(k) the head of an agency may exempt any system
of records if the system of records is investigatory material within
the scope of subsection (j)(2). Section 552(a)(k)(2) provides for the
exemption of investigative material compiled for law enforcement
purposes, provided however that if any individual is denied any right,
privilege, or benefit that he would otherwise be entitled to by Federal
law, or for which he could otherwise be eligible, as a result of the
maintenance of such material, such material shall be provided to such
individual, except to the extent that the disclosure of such material
would reveal the identity of a source who furnished information to the
Government under an express promise that the identity of the source
would be held in confidence. Exemption under 552a(k)(2) is necessary to
the extent the records constitute investigatory material compiled for
law enforcement purposes, to protect the investigatory process, and
protect the identity of a confidential source. 552(a)(k)(5) allows for
the exemption of investigatory material compiled solely for the purpose
of determining suitability, eligibility, or qualifications for Federal
civilian employment, military service. Exemption under 552(a)(k)(5) is
necessary to the extent that the disclosure of such material would
reveal the identity of a confidential source and to maintain access to
sources necessary in making determinations of suitability for
employment.
USDA/OIG-2, USDA/OIG-3, USDA/OIG-4, and the Investigations
Subsystem and Investigative Employee Time Records portions of USDA/OIG-
5, contain information of the type described above and are maintained
by the Office of Inspector General, a component of USDA which performs
as one of its principal functions activities pertaining to the
enforcement of criminal laws. Authority for the criminal law
enforcement activities of the Office of Inspector General is the
Inspector General Act of 1978, 5 U.S.C. app. 3. That legislation
authorizes the Office of Inspector General to conduct investigations
relating to programs and operations of the Department of Agriculture.
The list of exempt systems contained in the Federal Register
document at 54 FR 39517, September 27, 1989, and proposed at 59 FR
51389, October 11, 1994, is amended by this document.
List of Subject in 7 CFR Part 1
Privacy.
For the reasons set out in the preamble, 7 CFR, subtitle A, part 1,
subpart G is amended as follows:
PART 1--ADMINISTRATIVE REGULATIONS
Subpart G--Privacy Act Regulations
1. The authority citation for subpart G continues to read as
follows:
Authority: 5 U.S.C. 552a.
2. Sections 1.122 is amended by revising the list of exempt systems
of records for the Office of Inspector General and 1.123 by adding the
list of exempt systems of records for the Office of Inspector General
to read as follows:
Sec. 1.122 General exemptions.
* * * * *
Office of Inspector General
Informant and Undercover Agent Records, USDA/OIG-2.
Investigative Files and Automated Investigative Indices System,
USDA/OIG-3.
OIG Hotline Complaint Records, USDA/OIG-4.
Consolidated Assignments, Personnel Tracking, and Administrative
Information Network (CAPTAIN), USDA/OIG-5.
Sec. 1.123 Specific exemptions.
* * * * *
Office of Inspector General
Informant and Undercover Agent Records, USDA/OIG-2.
Investigative Files and Automated Investigative Indices System,
USDA/OIG-3.
OIG Hotline Complaint Records, USDA/OIG-4.
Consolidated Assignments, Personnel Tracking, and Administrative
Information Network (CAPTAIN), USDA/OIG-5.
* * * * *
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Done at Washington, DC., this 3rd day of November 1997.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 97-29606 Filed 11-14-97; 8:45 am]
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