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

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

61207

Vol. 62, No. 221

Monday, November 17, 1997

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.

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.
61208 Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 / Rules and Regulations

(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 securitysensitive, 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
Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 / Rules and Regulations 61209

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:

§ 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.

§ 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.

* * * * *
61210 Federal Register / Vol. 62, No. 221 / Monday, November 17, 1997 / Rules and Regulations

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]

BILLING CODE 3410–23–M

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

7 CFR Part 301

[Docket No. 96–061–2]

RIN 0579–AA85

Interstate Movement of Imported

Plants and Plant Parts

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are establishing a new

generic domestic quarantine notice.

This domestic quarantine notice

provides that, subsequent to their

importation, foreign plants and plant

parts prohibited under our foreign

quarantine notices from being imported

into certain States or areas are also

prohibited from being moved interstate

into those States or areas. This action

will clarify and strengthen our ability to

enforce restrictions on the movement in

commerce of imported plants and plant

parts that present a risk of introducing

foreign plant pests and diseases. In

conjunction with this action, we are also

removing a domestic quarantine notice

that prohibits certain interstate

movements of Unshu oranges,

subsequent to their importation into the

United States, because the new

domestic quarantine notice makes a

specific one for Unshu oranges

unnecessary.

EFFECTIVE DATE: December 17, 1997.

FOR FURTHER INFORMATION CONTACT: Mr.

Stephen Poe, Operations Officer,

Domestic and Emergency Operations,

PPQ, APHIS, 4700 River Road Unit 134,

Riverdale, MD 20737–1236, (301) 734–

8899.

SUPPLEMENTARY INFORMATION:

Background

The regulations at title 7, part 301, of

the Code of Federal Regulations (CFR)

contain domestic quarantine notices

designed to prevent the spread of

certain plant pests and diseases through

the interstate movement of regulated

articles. The regulations at 7 CFR 319

contain foreign quarantine notices

designed to prevent the introduction of

foreign plant pests and diseases through

the importation of regulated articles into

the United States.

Some of the foreign quarantine

notices in part 319 include destination

restrictions for specified imported

plants and plant parts. That is, these

notices allow specified foreign plants or

plant parts to be imported into some

parts of the United States but not into

other specified States or areas because

movement into those States or areas

could present a plant pest or disease

risk. However, only one domestic

quarantine notice (7 CFR 301.83,

‘‘Subpart-Unshu Oranges’’) prohibits the

subsequent movement of an imported

plant or plant part into or through

certain portions of the United States

based on importation restrictions

specified in a foreign quarantine notice

(7 CFR 319.28, ‘‘Subpart-Citrus Fruit’’).

On October 2, 1996, we published in

the Federal Register (61 FR 51376–

51377, Docket No. 96–061–1) a proposal

to amend the regulations in title 7 by

establishing a new generic domestic

quarantine notice in part 301. We stated

that the proposed quarantine notice

would prohibit the subsequent interstate

movement of imported plants and plant

parts into or through areas identified in

a foreign quarantine notice as being a

prohibited destination for the imported

plants and plant parts.

In conjunction with the action just

described, we also proposed to remove

the domestic quarantine notice,

‘‘Subpart-Unshu Oranges,’’ contained in

§ 301.83. As mentioned previously, that

subpart serves to reinforce the

destination restrictions for imported

Unshu oranges specified in the foreign

quarantine notice ‘‘Subpart-Citrus

Fruit.’’ The establishment of the generic

domestic quarantine notice described

above would make the prohibitions in

‘‘Subpart-Unshu Oranges’’ redundant

and, therefore, no longer necessary.

We solicited comments concerning

our proposal for 45 days ending

November 18, 1996. We received four

comments by that date. They were from

an industry group, a scientific

organization, and two State

governments.

While we will discuss specific

comments below, we believe several of

the concerns expressed in the comments

stemmed from confusion about the

language we used in the proposed

domestic quarantine notice. We regret

any misunderstanding that resulted

from the proposal as written and will

attempt to explain more clearly in this

document our goal in promulgating this

regulation. We also are revising the

proposed regulatory language to clarify

it.

To begin, we would like to emphasize

that this generic domestic quarantine

notice adds no new quarantine

restrictions; it simply reiterates in the

domestic quarantine notices (title 7, part

301) restrictions that are already stated

in the foreign quarantine notices (title 7,

part 319). Therefore, this notice will

have no effect on the legal importation

or interstate transport of foreign plants

or plant parts. What this domestic

quarantine notice will do is clarify that

shipping an imported plant or plant part

interstate to an area of the United States

that is a prohibited destination for that

plant or plant part under a foreign

quarantine notice is a violation of

Federal regulations. Because this notice

clearly states that such interstate

movement of certain imported plants

and plant parts is prohibited, we believe

that this notice strengthens our ability to

take regulatory action against persons

who engage in such prohibited

interstate transport.

This new quarantine notice logically

places any regulations setting forth

restrictions on the interstate movement

of imported plants and plant parts in the

domestic quarantine notices in part 301

of the regulations instead of in the

foreign quarantine notices in part 319.

Any member of the public who might

check the CFR to determine whether the

domestic movement of an imported

plant or plant part is prohibited or

restricted could not reasonably be

expected to look for that information in

the foreign quarantine notices. Placing

this quarantine notice and prohibition

on interstate movement in a more

logical position in the CFR will increase

public awareness of and accessibility to

these restrictions in the regulations.

Specific Concerns

One commenter expressed concern

that the language in the proposed

domestic quarantine notice was ‘‘vague

and confusing and could easily result in

misinterpretation as to its intent,

especially where it states that the

limited distribution areas are essentially

quarantined areas.’’

As our proposal was worded, areas of

the United States into which a plant or

plant part may be imported under part

319 would be quarantined with respect

to that plant or plant part; all other areas

of the United States would not be

quarantined with respect to that plant or

plant part, and movement of the plant

or plant part would be prohibited into

nonquarantined areas.

We recognize that designating as

‘‘quarantined areas’’ the States and areas

into which the foreign plants or plant

parts may move could be confusing to

some people. Under many plant pest