18036 Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Proposed Rules

Massachusetts Institute of Technology

Nuclear Fuel Services, Inc.

Pennsylvania State University

Purdue University

Seattle University

Siemens Power Corporation

University of Florida

University of Texas

Westinghouse Electric Corporation

Attendees are requested to notify Ms.

Joan Higdon at 301–415–8082 of their

planned attendance to ensure adequate

meeting room space and if any special

requirements are needed (e.g., for the

hearing-impaired).

Dated at Rockville, Maryland, this 5th day

of April, 1995.

For the Nuclear Regulatory Commission.

Robert F. Burnett,

Director, Division of Fuel Cycle Safety and

Safeguards.

[FR Doc. 95–8703 Filed 4–7–95; 8:45 am]

BILLING CODE 7590–01–M

NATIONAL CREDIT UNION

ADMINISTRATION

12 CFR Part 792

Addition of Specific Exemptions Under

the Privacy Act

AGENCY: National Credit Union

Administration.

ACTION: Proposed rule.

SUMMARY: The National Credit Union

Administration (NCUA) is proposing to

amend its regulations pertaining to

exemptions of the NCUA’s Privacy Act

Systems of Records. These amendments

are necessary to reflect the addition of

the (j)(2) and (k)(2) exemptions of the

Privacy Act to the NCUA regulations

that describe exempt systems of records,

and to clearly link the ‘‘Office of

Inspector General (OIG) Investigative

Records—NCUA,’’ system NCUA- 20, to

these Privacy Act exemptions.

DATES: Comments must be postmarked

or posted to the NCUA Electronic

Bulletin Board by May 10, 1995.

Comments postmarked or posted by

Electronic Bulletin Board after this date

will be considered if it is practical to do

so, but the NCUA is able to assure

consideration only for comments that

are received on or before this date.

ADDRESSES: Send comments to Becky

Baker, Secretary of the Board, National

Credit Union Administration, 1775

Duke Street, Alexandria, VA 22314, or

post comments to the NCUA Electronic

Bulletin Board at 800 876–1684 or 703

518–6480. Comments received may be

examined at the Office of Inspector

General, 5th floor, NCUA Building, 1775

Duke Street, Alexandria, VA.

FOR FURTHER INFORMATION CONTACT:

Alexandra B. Keith, Counsel to the

Inspector General, Office of Inspector

General, National Credit Union

Administration, 5th floor, 1775 Duke

Street, Alexandria, VA, 22314,

Telephone: 703–518–6352.

SUPPLEMENTARY INFORMATION: In 1989, in

response to the Inspector General Act

Amendments, P.L. 100–504, the

National Credit Union Administration

Board established a statutorily

designated Inspector General (IG), to

whom the functions of the former

NCUA Office of Internal Auditor, were

transferred. The functions of NCUA’s

Office of Inspector General (OIG)

include: (1) The detection and

prevention of waste, fraud, and abuse

and (2) the promotion of economy and

efficiency in NCUA programs and

operations. As one of its principal

functions, the OIG performs

investigations into alleged violations of

criminal law in connection with

NCUA’s programs and operations,

pursuant to the IG Act of 1978, as

amended. In conjunction with these

functions, OIG reports suspected

violations of criminal and civil law to

the U.S. Attorney General.

Section (j)(2) of the Privacy Act (5

U.S.C. 552a (j)(2)) permits the head of an

agency to promulgate rules to exempt a

system of records from certain

requirements if the system is

maintained by an agency component or

sub component whose principal

function pertains to the enforcement of

criminal laws and if the system of

records is compiled for a criminal law

enforcement purpose. Accordingly, to

the extent it includes this kind of

records, the OIG Investigative Records

system of records is exempt from the

following sections of 552a of Title 5

U.S.C.: (c)(3), (c)(4), (d),

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

(e)(4)(I), (e)(5), (e)(8), (f), and (g), as well

as from the corresponding regulatory

subsections.

Section (k)(2) (Title 5 USC 552a(k)(2))

permits exemption from certain

requirements if the system consists of

investigatory material compiled for law

enforcement purposes, other than

material within the scope of subsection

(j)(2); Provided however, that if any

individual is denied any right, privilege,

or benefit that he or she would

otherwise be entitled to by Federal law,

or for which he or she would 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, or

prior to January 1, 1975, under an

implied promise that the identity of the

source should be held in confidence.

Accordingly, to the extent that it

includes this kind of records, this

system of records is also exempt under

Section (k)(2) from the following

sections of 552a of Title 5 U.S.C.:

(c)(3);(d); (e)(1); (e)(4)(G), (H), and (I);

and (f), as well as from the

corresponding regulatory subsections.

This proposed rule, amending 12 CFR

792.34, would make NCUA’s regulations

consistent with those of the majority of

agencies with statutory IG’s.

Elsewhere in today’s Federal Register

there is a Notice describing this system

of records.

Exemptions from the particular

subsections are justified for the

following reasons:

Section 552a(c)(3) of title 5 U.S.C.

requires an agency to make the

accounting of each disclosure of records

available to the individual named in the

record at his/her request. This

accounting 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 could alert the subject of an

investigation to the existence and nature

of the investigation and reveal

investigative or prosecutive interest by

other agencies, especially in a joint

investigation situation. This could

seriously impede or compromise an

investigation and case preparation by

prematurely revealing its existence and

nature; compromise or interfere with

witnesses reluctant to cooperate with

the investigators; lead to suppression,

alteration, fabrication or destruction or

evidence; and endanger the physical

safety of confidential sources, witnesses,

law enforcement personnel and their

families.

Section 552a(c)(4) of title 5 U.S.C.

requires an agency to inform outside

parties of amendments to and notation

of disputes about information in a

system in accordance with subsection

(d) of the Privacy Act. Because this

system of records is exempted from the

amendment provisions of subsection (d)

of the Privacy Act by this rule, this

section is not properly applicable.

Sections 552a(d) and (f) of title 5

U.S.C. require an agency to provide

access to records, make corrections, and

amendments to records, and notify

individuals of the existence of records

upon their request. Providing

individuals with the access to records of

an investigation and the right to contest

the contents of those records and force
Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Proposed Rules 18037

changes to be made to the information

contained therein would seriously

interfere with and thwart the orderly

and unbiased conduct of the

investigation and impede case

preparation. Providing the access

normally afforded under the Privacy Act

would provide the subject with valuable

information that would allow

interference with or compromise of

witnesses or render witnesses reluctant

to cooperate with investigators; lead to

suppression, alteration, fabrication, or

destruction of evidence; endanger the

physical safety of confidential sources,

witnesses, law enforcement personnel

and their families, and result in the

secreting of or other disposition of

assets that would make them difficult or

impossible to reach to satisfy any

Government claims growing out of the

investigation.

Section 552a(e)(1) of title 5 U.S.C.

requires an agency to maintain in

agency records only ‘‘relevant and

necessary’’ information about an

individual. This provision is

inappropriate for investigations, because

it is not always possible to detect the

relevance or necessity of each piece of

information in the early stages of an

investigation. In some cases, it is only

after the information is evaluated in

light of other evidence that its relevance

and necessity will be clear. In other

cases, what may appear to be a relevant

and necessary piece of information may

become irrelevant in light of further

investigation.

In addition, during the course of an

investigation, the investigator may

obtain information that relates primarily

to matters under the investigative

jurisdiction of another agency (e.g., the

fraudulent use of Social Security

numbers) and that information may not

be reasonably segregated. In the

interests of effective law enforcement,

OIG investigators should retain this

information, because it can aid in

establishing patterns of criminal activity

and can provide valuable leads for

Federal and other law enforcement

agencies.

Section 552a(e)(2) of title 5 U.S.C.

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 general rule that information be

collected ‘‘to the greatest extent

practicable’’ from the target individual

is not appropriate in investigations. OIG

investigators should be authorized to

use their professional judgment as to the

appropriate sources and timing of an

investigation. Often it is necessary to

conduct an investigation so that the

target does not suspect that he or she is

being investigated. The requirement to

obtain the information from the targeted

individual may put the suspect on

notice of the investigation and thereby

thwart the investigation by enabling the

suspect to destroy evidence and take

other action that would impede the

investigation. This requirement may

also in some cases preclude an OIG

investigator from gathering information

and evidence before interviewing an

investigative target in order to maximize

the value of the interview by

confronting the target with evidence or

information. 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.

In addition, the statutory term, ‘‘to the

greatest extent practicable,’’ is a

subjective standard, and it is impossible

adequately to define the term so that

individual OIG investigators can

consistently apply it to the many fact

patterns encountered in OIG

investigations.

Section 552a(e)(3) of title 5 U.S.C.

requires an agency to inform each

person whom it asks 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 purpose 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 any person, if any, of not

providing all or any part of the required

information. The application of this

provision could provide the subject of

an investigation with substantial

information about the nature of that

investigation. Moreover, providing such

a notice to the subject of an

investigation could seriously impede or

compromise an investigation by

revealing its existence and could

endanger the physical safety of

confidential sources, witnesses, and

investigators by revealing their

identities.

Sections 552a(e)(4)(G) and (H) of title

5 U.S.C. require an agency to publish in

the 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 this system of

records is being exempted from

subsection (f) of the Privacy Act,

concerning agency rules, and subsection

(d) of the Act, concerning access to

records, these requirements are

inapplicable to the extent that the

system of records would be exempt from

those subsections.

Section 552a(e)(4)(I) of title 5 U.S.C.

requires an agency to publish notice of

categories of sources of records in the

system of records. To the extent that this

provision is constructed to require more

detailed disclosure than the broad

generic information currently published

in the system notice an exemption from

this provision is necessary to protect the

confidentiality of sources of

information, to protect privacy and

information, and to avoid the disclosure

of investigative techniques and

procedures.

Section 552a(e)(5) of title 5 U.S.C.

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.

Much the same rationale is applicable to

this proposed exemption as that set

forth previously in item (d) (duty to

maintain in agency records only

‘‘relevant and necessary information’’

about an individual.) While the OIG

makes every effort to maintain records

that are accurate, relevant, timely and

complete, it is not always possible in an

investigation to determine with

certainty that all the information

collected is accurate, relevant, timely,

and complete. During a thorough

investigation, a trained investigator

would be expected to collect allegations,

conflicting information, and information

that may not be based upon the personal

knowledge of the provider. At the point

of determination by OIG to refer a

matter to a prosecutive agency, for

example, that information would be in

the system of records, and it may not be

possible until further investigation is

conducted, or indeed in many cases

until a trial (if at all) to determine the

accuracy, relevance, and completeness

of some information. This requirement

would inhibit the ability of trained

investigators to exercise professional

judgment in conducting a thorough

investigation. Moreover, fairness to

affected individuals is assured by the

due process they are accorded in any

trial or other proceeding resulting from

the OIG investigation.

Section 552a(e)(8) of title 5 U.S.C.

requires an agency to make reasonable

efforts to serve notice on an individual

when any record on such individual is
18038 Federal Register / Vol. 60, No. 68 / Monday, April 10, 1995 / Proposed Rules

made available under compulsory legal

process when such process becomes a

matter of public record. Compliance

with this provision could prematurely

reveal and compromise an ongoing

criminal investigation to the target of

the investigation and reveal confidential

investigative techniques, procedures, or

evidence.

Section 552a(g) of title 5 U.S.C.

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. The system would be

exempt from many of the Act’s

requirements; it is unnecessary and

contradictory to provide for civil

remedies from violations of those

provisions in particular.

Regulatory Flexibility Certification

As required by the Regulatory

Flexibility Act (5 U.S.C. 605(b)), the

NCUA certifies that this rule does not

have a significant economic impact on

a substantial number of small entities.

The amendments to 12 CFR are

procedural in nature and will aid an

NCUA office to perform its criminal law

enforcement function.

Paperwork Reduction Act Statement

This proposed rule contains no

information collection requirements and

therefore is not subject to the

requirements of the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501

et seq.)

Executive Order 12612

This amendment to NCUA’s systems

of record notice does not affect state

regulation of credit unions.

List of Subjects in 12 CFR Part 792

Criminal penalties, Freedom of

Information, Privacy, Reporting and

record keeping requirements, Sunshine

Act.

By the National Credit Union

Administration Board on March 30, 1995.

Becky Baker,

Secretary of the Board.

For the reasons set out in the

preamble and under the authority of the

Federal Credit Union Act of 1934, as

amended; and 5 U.S.C. 552, 552a, and

553, the NCUA is proposing to adopt the

following amendments to 12 CFR part

792.

PART 792—[AMENDED]

Subpart B-The Privacy Act

1. The authority citation for Part 792

is revised to read as follows:

Authority: 12 U.S.C. 1766(a) and

1789(a)(7); 5 U.S.C. App. 3. Subpart B is also

issued under 5 U.S.C. 552a.

2. In § 792.34, a new paragraph (b)(3)

is added to read as follows:

§ 792.34 Exemptions.

* * * * *

(b) * * *

(3) System NCUA–20, entitled,

‘‘Office of Inspector General (OIG)

Investigative Records,’’ consists of OIG

records of closed and pending

investigations of individuals alleged to

have been involved in criminal

violations. The records in this system

are exempted pursuant to Sections (k)(2)

of the Privacy Act, 5 U.S.C. 552a(k)(2),

from sections (c)(3); (d); (e)(1); (e)(4)(G);

(e)(4)(H); (e)(4)(I); and (f). The records in

this system are also exempted pursuant

to section (j)(2) of the Privacy Act, 5

U.S.C. 552a(j)(2), from sections (c)(3);

(c)(4); (d); (e)(1); (e)(2); (e)(3); and (g).

[FR Doc. 95–8337 Filed 4–7–95; 8:45 am]

BILLING CODE 7535–01–U –

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Airspace Docket No. 95–ASO–10]

Proposed Amendment to Class E

Airspace; Memphis, TN

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: This notice proposes to

amend the Class E airspace area at

Memphis, TN. A VOR RWY 16 Standard

Instrument Approach Procedure (SIAP)

has been developed for General DeWitt

Spain Airport. Additional controlled

airspace extending upward from 700

feet above the surface (AGL) is needed

to accommodate this SIAP and for

instrument flight rules (IFR) operations

at the airport. If approved, the operating

status of the airport will change from

VFR to include IFR operations

concurrent with publication of the

SIAP.

DATES: Comments must be received on

or before May 23, 1995.

ADDRESSES: Send comments on the

proposal in triplicate to: Federal

Aviation Administration, Docket No.

95–ASO–10, Manager, System

Management Branch, ASO–530, P.O.

Box 20636, Atlanta, Georgia 30320.

The official docket may be examined

in the Office of the Assistant Chief

Counsel for Southern Region, Room 550,

1701 Columbia Avenue, College Park,

Georgia 30337, telephone (404) 305–

5586.

FOR FURTHER INFORMATION CONTACT:

Michael J. Powderly, System

Management Branch, Air Traffic

Division, Federal Aviation

Administration, P.O. Box 20636,

Atlanta, Georgia 30320; telephone (404)

305–5570.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested parties are invited to

participate in this proposed rulemaking

by submitting such written data, views

or arguments as they may desire.

Comments that provide the factual basis

supporting the views and suggestions

presented are particularly helpful in

developing reasoned regulatory

decisions on the proposal. Comments

are specifically invited on the overall

regulatory, aeronautical, economic,

environmental, and energy-related

aspects of the proposal.

Communications should identify the

airspace docket and be submitted in

triplicate to the address listed above.

Commenters wishing the FAA to

acknowledge receipt of their comments

on this notice must submit with those

comments a self-addressed, stamped

postcard on which the following

statement is made: ‘‘Comments to

Airspace Docket No. 95–ASO–10.’’ The

postcard will be date/time stamped and

returned to the commenter. All

communications received before the

specified closing date for comments will

be considered before taking action on

the proposed rule. The proposal

contained in this notice may be changed

in light of the comments received. All

comments submitted will be available

for examination in the Office of the

Assistant Chief Counsel for Southern

Region, Room 550, 1701 Columbia

Avenue, College Park, Georgia 30337,

both before and after the closing date for

comments. A report summarizing each

substantive public contact with FAA

personnel concerned with this

rulemaking will be filed in the docket.

Availability of NPRMs

Any person may obtain a copy of this

Notice of Proposed Rulemaking (NPRM)

by submitting a request to the Federal

Aviation Administration, Manager,

System Management Branch, ASO–530,

Air Traffic Division, P.O. Box 20636,