[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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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.

[[Page 61208]]

    (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]
BILLING CODE 3410-23-M