15730 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

proposed amendment at its own

initiative with the intention of allowing

companies in the coal industry, if they

so desired, to provide a certain amount

of their liability insurance through selfinsurance. The provision of the Utah

Coal Mining Rules that Utah proposed

to revise was Utah Administrative Rule

(Utah Admin. R.) 645–301–890.400,

Terms and Conditions for Liability

Insurance.

OSM announced receipt of the

proposed amendment in the October 21,

1994, Federal Register (59 FR 53123),

provided an opportunity for a public

hearing or meeting on its substantive

adequacy, and invited public comment

on its adequacy (administrative record

No. UT–982). Because no one requested

a public hearing or meeting, none was

held. The public comment period ended

on November 21, 1994.

During its review of the amendment,

OSM identified concerns relating to

Utah’s proposed rule and notified Utah

of the concerns by letter dated

November 30, 1994 (administrative

record No. UT–992).

In response to OSM’s concerns, Utah

by letter dated December 16, 1994,

submitted copies of the Utah Interlocal

Cooperation Act and Utah

Governmental Immunity Act that were

intended to clarify Utah’s proposed rule

revisions (administrative record No.

UT–999).

OSM announced receipt of the

additional explanatory information in

the January 10, 1995, Federal Register

(60 FR 2520), and reopened and

extended the comment period

(administrative record No. UT–1005).

The public comment period ended on

January 25, 1995.

During its review of the amendment,

OSM identified concerns relating to the

additional explanatory information as it

applied to Utah’s proposed rule and

notified Utah of the concerns by letter

dated February 14, 1995 (administrative

record No. UT–1020).

By letter dated February 24, 1995,

Utah requested that the proposed

amendment be withdrawn

(administrative record No. UT–1026).

Utah indicated that it intends to

conduct additional research on the

issues before resubmitting the

amendment at a later date for approval

as part of the Utah program.

Therefore, the proposed amendment

announced in the October 21, 1994, and

January 10, 1995, publications of the

Federal Register is withdrawn.

List of Subjects in 30 CFR Part 944

Intergovernmental relations, Surface

mining, Underground mining.

Dated: March 10, 1995.

Charles E. Sandberg,

Acting Assistant Director, Western Support

Center.

[FR Doc. 95–7438 Filed 3–24–95; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

31 CFR Part 1

[No. 94–260]

Privacy Act of 1974; Implementation

AGENCY: Office of Thrift Supervision,

Treasury.

ACTION: Proposed rule.

SUMMARY: The Office of Thrift

Supervision (OTS) is proposing to

exempt a system of records from certain

provisions of the Privacy Act of 1974, 5

U.S.C. 552a (Privacy Act), to the extent

the system contains investigatory

material pertaining to the enforcement

of laws or compiled for law enforcement

purposes. The OTS is also proposing to

add a Privacy Act exemption to an

existing exempt system.

DATES: Comments must be received no

later than April 26, 1995.

ADDRESSES: Send comments to: Director,

Information Services Division, Public

Affairs, Office of Thrift Supervision,

1700 G Street, NW., Washington, DC

20552, Attention Docket No. 94–260.

These submissions may be hand

delivered to 1700 G Street, NW., from 9

a.m. to 5 p.m. on business days; they

may be sent by facsimile transmission to

FAX number (202) 906–7753 or (202)

906–7755. Submissions must be

received by 5 p.m. on the day that they

are due in order to be considered by the

OTS. Comments will be available for

inspection at 1700 G Street, NW., from

1 p.m. until 4 p.m. on business days.

Visitors will be escorted to and from the

Public Reading Room at established

intervals.

FOR FURTHER INFORMATION CONTACT:

Mary Ann Reinhart, Chief, Disclosure

Branch, (202) 906–5896, 1700 G Street,

NW., Washington, DC 20552.

SUPPLEMENTARY INFORMATION: The OTS

is proposing to exempt the Criminal

Referral Database system of records from

specified provisions of the Privacy Act

and to add an exemption to the

Confidential Individual Information

System. Subsection (j)(2) of the Privacy

Act provides that an agency may

promulgate rules to exempt any system

of records within the agency from any

section of part 552a except subsections

(b), (c) (1) and (2), (e)(4) (A) through (F),

(e) (6), (7), (9), (10), and (11), and (i),

provided that the system of records is

maintained by ‘‘the agency or

component thereof which performs as

its principal function any activity

pertaining to enforcement of criminal

laws’’ and includes: ‘‘(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.’’ Section 552a(k) of the

Privacy Act provides that an agency

may promulgate rules to exempt any

system of records within the agency

from sections 552a (c)(3), (d), (e)(1),

(e)(4) (G) through (I), and (f) of the Act,

pursuant to 5 U.S.C. 552a(k)(2), if the

system of records is ‘‘investigatory

material compiled for the law

enforcement purposes, other than

material within the scope of subsection

(j)(2) * * *.’’

If a system of records is not exempted

from these sections, the Privacy Act

generally requires the agency to: Make

an accounting of disclosures to the

individual named in the record of their

request; permit individuals access to

their records; permit individuals to

request amendment to their records;

maintain only relevant or necessary

information in its system of records;

publish certain information in the

Federal Register; and promulgate rules

that establish procedures for notice and

disclosure of records. The exemptions

that may be asserted with respect to

investigatory systems of record permit

an agency to protect information when

disclosure would interfere with the

conduct of the agency’s investigations.

Exemptions under subsections

552a(j)(2) and (k)(2) are necessary to

maintain the integrity and

confidentiality of these investigative

files. These systems contain information

on possible criminal investigations and

may indicate current administrative

investigations by OTS. The disclosure of

this information would significantly

impair the enforcement activities and

coordinated proceedings of OTS, other

financial institution regulatory agencies,

and the Justice Department. Disclosure

form these systems would give
Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15731

individuals an opportunity to learn

whether they have been identified as

either suspects or subjects of criminal

referrals. This knowledge would

undermine the agency’s mission of

enforcing federal law, since individuals

could take steps to avoid detection;

inform associates that a referral had

been made; begin, continue, or resume

illegal conduct upon learning that they

are not identified in the system of

records; or destroy evidence needed to

prove the violation. Individuals could

alter future wrongful acts to avoid

detection by discovering the collection

of facts that would form the basis for a

criminal referral, by enabling them to

destroy or alter evidence of unlawful

conduct, and by learning that

investigators had reason to believe that

there was a violation of laws or

regulations. Disclosure could, moreover,

disclose the identity of confidential

sources and the nature of the

information supplied and thereby

endanger the physical safety of sources

of information by exposing them to

reprisals for having provided the

information. Confidential sources might

refuse to provide valuable referrals if

they could not be secure in the

knowledge that their identities would

not be revealed through disclosure of

either their names or the nature of the

information they supplied. Loss of

access to such sources would seriously

impair the OTS’s and the Justice

Department’s ability to carry out their

mandates. Additionally, disclosure

would reveal investigative techniques

and procedures, the knowledge of

which could enable individuals

planning to engage in misconduct or

crimes to structure their operations in

such a way as to avoid detection or

apprehension and thereby neutralize

established investigative tools and

procedures of both OTS and the Justice

Department. The imposition of certain

restrictions on the manner in which

information is collected, verified or

retained could significantly impede the

effectiveness of investigation and could

preclude the apprehension and

successful prosecution of persons

engaged in fraud or other unlawful

activity.

The OTS investigative files will

contain information of the type

described in the (j)(2) and (k)(2)

exemptions of the Privacy Act.

Authority for these systems are

provided by 5 U.S.C. 301; 12 U.S.C.

1464, 1818. OTS will maintain

information in these systems of records,

pursuant to its law enforcement and

investigative functions, in order to carry

out these functions and its mission.

This rule is not a ‘‘significant

regulatory action’’ under Executive

Order 12866 and will not require the

approval of the Office of Management

and Budget; therefore, does not require

a Regulatory Impact Analysis.

Pursuant to the requirements of the

Regulatory Flexibility Act, 5 U.S.C. 601–

612, it is hereby certified that this rule

will not have significant economic

impact on a substantial number of small

entities.

In accordance with the Paperwork

Reduction Act of 1980, the Department

of the Treasury has determined that this

proposed rule would not impose new

recordkeeping, application, reporting, or

other types of information collection

requirements.

List of Subjects in 31 CFR Part 1

Privacy.

Part 1 of title 31 of the Code of

Federal Regulations is amended as

follows:

PART 1—[AMENDED]

1. The authority citation for part 1

continues to read as follows:

Authority: 5 U.S.C. 301 and 31 U.S.C. 321.

Subpart A also issued under 5 U.S.C. 552 as

amended. Subpart C also issued under 5

U.S.C. 552a.

§ 1.36 [Amended]

2. Section 1.36 of subpart C is

amended by adding the following text at

the end of the section as follows:

OFFICE OF THRIFT SUPERVISION

NOTICE OF EXEMPT SYSTEMS

In accordance with 5 U.S.C. 552a (j) and

(k), general notice is hereby given of

rulemaking pursuant to the Privacy Act of

1974 by the Acting Director, Office of Thrift

Supervision, under authority delegated to

him by the Secretary of the Treasury. The

Acting Director, Office of Thrift Supervision,

exempts the systems of records identified in

the paragraphs below from certain provisions

of the Privacy Act of 1974 as set forth in such

paragraphs.

a. General exemptions under 5 U.S.C.

552a(j)(2). Pursuant to the provisions of 5

U.S.C. 552a(j)(2), the Acting Director, Office

of Thrift Supervision, hereby exempts certain

systems of records, maintained by the Office

of Thrift Supervision, from the provisions of

5 U.S.C. 552a (c) (3) and (4)(D) (1), (2), (3)

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

(5) and (8), (f) and (g).

1. Exempt systems. The following systems

of records, which contain information of the

type described in 5 U.S.C. 552a(j)(2), shall be

exempt from the provisions of 5 U.S.C. 552a

listed in paragraph a. above except as

otherwise indicated below and in the general

notice of the existence and character of

systems of records which appears elsewhere

in the Federal Register

.001—Confidential Individual Information

System

.004—Criminal Referral Database

2. Reasons for exemptions. (a) 5 U.S.C.

552a (e)(4)(G) and (f)(1) enable individuals to

be notified whether a system of records

contains records pertaining to them. The

Office of Thrift Supervision (OTS) believes

that application of these provisions to the

above-listed systems of records would give

individuals an opportunity to learn whether

they are on record either as suspects or as

suspects of an administrative investigation;

this would compromise the ability of the

OTS to complete investigations and to detect

and apprehend violators of applicable laws

in that individuals would thus be able (1) to

take steps to avoid detection, (2) to inform

co-conspirators of the fact that an

investigation is being conducted, (3) to learn

the nature of the investigation to which they

are being subjected, (4) to learn the type of

surveillance being utilized, (5) to learn

whether they are suspects or identified law

violators, (6) to continue or resume their

illegal conduct without fear of detection

upon learning that they are not in a particular

system of records, and (7) to destroy evidence

needed to prove a violation.

(b) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f) (2),

(3) and (5) enable individuals to gain access

to records pertaining to them. The OTS

believes that application of these provisions

to the above-listed systems of records would

compromise its ability to complete or

continue administrative investigations and to

detect and apprehend violators of applicable

laws. Permitting access to records contained

in the above-listed systems of records would

provide individuals with significant

information concerning the nature of the

investigation, and this could enable them to

avoid detection or apprehension in the

following ways: (1) By discovering the

collection of facts which would form the

basis of an enforcement action, and (2) by

enabling them to destroy evidence of

wrongful conduct which would form the

basis of an enforcement action. Granting

access to on-going or closed investigative

files would also reveal investigative

techniques and procedures, the knowledge of

which could enable individuals planning

illegal activity to structure their future

operations in such a way as to avoid

detection or apprehension, thereby

neutralizing established investigative

techniques and procedures. Further, granting

access to investigative files and records could

disclose the identities of confidential sources

and other informers and the nature of the

information which they supplied, thereby

exposing them to possible reprisals for

having provided information related to the

activities of those individuals who are

subjects of the investigative files and records;

confidential sources and other informers

might refuse to provide investigators with

valuable information if they could not be

secure in the knowledge that their identities

would not be revealed through disclosure of

either their names or the nature of the

information they supplied, and this would

seriously impair the ability of the OTS to
15732 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

carry out its mandate to enforce the

applicable laws. Additionally, providing

access to records contained in the abovelisted systems of records could reveal the

identities of individuals who compiled

information regarding illegal activities,

thereby exposing them to possible reprisals.

(c) 5 U.S.C. 552a(d) (2), (3) and (4),

(e)(4)(H) and (f)(4), which are dependent

upon access having been granted to records

pursuant to the provisions cited in paragraph

(b) above, enable individuals to contest (seek

amendment to) the content of records

contained in a system of records and require

an agency to note an amended record and to

provide a copy of an individual’s statement

(of disagreement with the agency’s refusal to

amend a record) to persons or other agencies

to whom the record has been disclosed. The

OTS believes that the reasons set forth in

paragraph (b) above are equally applicable to

this subparagraph and, accordingly, those

reasons are hereby incorporated herein by

reference.

(d) 5 U.S.C. 552a(c)(3) requires that an

agency make accountings of disclosures of

records available to individuals named in the

records at their request; such accountings

must state the date, nature and purpose of

each disclosure of a record and the name and

address of the recipient. The OTS believes

that application of this provision to the

above-listed systems of records would impair

the ability of other law enforcement agencies

to make effective use of information provided

by the OTS in connection with the

investigation, detection and apprehension of

violators of the laws enforced by those other

law enforcement agencies. Making

accountings of disclosure available to

violators would alert those individuals to the

fact that another agency is conducting an

investigation into their activities, and this

could reveal the nature and purpose of that

investigation, and the dates on which that

investigation was active. Violators possessing

such knowledge would thereby be able to

take appropriate measures to avoid detection

or other apprehension by altering their

operations, or by destroying or concealing

evidence which would form the basis of an

enforcement action. In addition, providing

violators with accountings of disclosure

would inform those individuals of general

information, and alert them that the OTS has

information regarding their activities; this, in

turn, would afford those individuals a better

opportunity to take appropriate steps to

avoid detection or apprehension.

(e) 5 U.S.C. 552a(c)(4) requires that an

agency inform any person or other agency

about any correction or notation of dispute

made by the agency in accordance with 5

U.S.C. 552(d) of any record that has been

disclosed to the person or agency if an

accounting of the record was made. Since

this provision is dependent on an

individual’s having been provided an

opportunity to contest (seek amendment to)

records pertaining to him, and since the

above-listed systems of records are proposed

to be exempted from those provisions of 5

U.S.C. 552a relating to amendments of

records as indicated in paragraph (c) above,

the OTS believes that this provision should

not be applicable to the above-listed systems

of records.

(f) 5 U.S.C. 552a(e)(4)(I) requires that an

agency publish a public notice listing the

categories of sources for information

contained in a system of records. The OTS

believes that application of this provision to

the above-listed systems of records could

compromise its ability to conduct

investigations and to identify, detect and

apprehend violators of the applicable laws

for the reasons that revealing sources for

information could (1) disclose investigative

techniques and procedures, (2) result in

possible reprisal directed to informers by the

subject under investigation, and (3) result in

the refusal of informers to give information

or to be candid with investigators because of

the knowledge that their identities as sources

might be disclosed.

(g) 5 U.S.C. 552a(e)(1) requires that an

agency maintain in its records only such

information about an individual as is

relevant and necessary to accomplish a

purpose of the agency required to be

accomplished by statute or executive order.

The term ‘‘maintain’’ as defined in 5 U.S.C.

552a(a)(3) includes ‘‘collect’’ and

‘‘disseminate.’’ At the time that information

is collected by the OTS, there is often

insufficient time to determine whether the

information is relevant and necessary to

accomplish a purpose of the OTS; in many

cases information collected may not be

immediately susceptible to a determination

whether the information is relevant and

necessary, particularly in the early stages of

an investigation, and in many cases

information which initially appears to be

irrelevant and unnecessary may, upon further

evaluation or upon continuation of the

investigation, prove to have particular

relevance to an enforcement program of OTS.

Further, not all violations of law discovered

during an OTS administrative investigation

fall within the investigative jurisdiction of

OTS; in order to promote effective law

enforcement, OTS is often required to

disseminate information pertaining to such

violations to other law enforcement agencies

which have jurisdiction over the offense to

which the information relates. The OTS

should not be placed in a position of having

to ignore information relating to violations of

law not within its jurisdiction where that

information comes to the attention of the

OTS through the conduct of a lawful OTS

investigation. The OTS therefore believes

that it is appropriate to exempt the abovelisted systems of records from the provisions

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

(h) 5 U.S.C. 552a(e)(2) requires that an

agency 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 OTS believes

that application of this provision to the

above-listed systems of records would impair

the ability of OTS to conduct investigations

and to identify, detect and apprehend

violators of applicable laws for the following

reasons: (1) Most information collected about

an individual under investigation is obtained

from third parties such as witnesses and

informers, and it is usually not feasible to

rely upon the target of the investigation as a

source for information regarding his

activities, (2) an attempt to obtain

information from an individual regarding an

investigation will often alert the individual to

the existence of such an investigation,

thereby affording him an opportunity to

conceal his activities so as to avoid

apprehension, (3) in certain instances

individuals are not required to supply

information to investigators as a matter of

legal duty, and (4) during investigations it is

often a matter of sound investigative

procedures to obtain information from a

variety of sources in order to verify

information already obtained.

(i) 5 U.S.C. 552a(e)(3) requires that an

agency inform each individual whom it asks

to supply information, on the form which it

uses to collect the information or on a

separate form that can be retained by the

individual, of the authority which authorizes

the solicitation of the information and

whether disclosure of such information is

mandatory or voluntary; the principal

purposes for which the information is

intended to be used; the routine uses which

may be made of the information; and the

effects on the individual of not providing all

or part of the requested information. The

OTS believes that the above-listed systems of

records should be exempted from this

provision in order to avoid adverse effects on

its ability to identify, detect and apprehend

violators of applicable laws. In many cases,

information is obtained from confidential

sources and other individuals under

circumstances where it is necessary that the

true purpose of their actions be kept secret

so as to not let it be known by the target of

the investigation or his associates that an

investigation is in progress. In many cases,

individuals for personal reasons would feel

inhibited in talking to a person representing

a law enforcement agency but would be

willing to talk to a confidential source or to

an individual whom them believed was not

involved in enforcement activity. In addition,

providing information from this system,

including written evidence of the identity of

the source, as required by this provision,

could increase the likelihood that the source

of information would be the subject of

retaliatory action by the target of the

investigation. Further, application of this

provision could result in an unwarranted

invasion of the personal privacy of the target

of the investigation, particularly where

further investigation would result in a

finding that he was not involved in unlawful

activity.

(j) 5 U.S.C. 552a(e)(5) requires that an

agency maintain all records used by the

agency in making any determination about

any individual with such accuracy,

relevance, timeliness, and completeness as is

reasonably necessary to assure fairness to the

individual in the determination. Since 5

U.S.C. 552a(a)(3) defines ‘‘maintain’’ to

include ‘‘collect’’ and ‘‘disseminate,’’

application of this provision to the abovelisted systems of records would hinder the

initial collection of any information which

could not, at the moment of collection, be

determined to be accurate, relevant, timely

and complete. Similarly, application of this

provision would seriously restrict the
Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules 15733

necessary flow of information from the OTS

to other law enforcement agencies where an

OTS investigation revealed information

pertaining to a violation of law which was

under the investigative jurisdiction of

another agency. In collecting information

during the course of an administrative

investigation, it is not possible or feasible to

determine accuracy, relevance, timeliness or

completeness prior to collection of the

information; in disseminating information to

other law enforcement agencies it is often not

possible to determine accuracy, relevance,

timeliness or completeness prior to

dissemination because the disseminating

agency may not have the expertise with

which to make such determinations. Further,

information which may initially appear

inaccurate, irrelevant, untimely or

incomplete may, when gathered, grouped,

and evaluated with other available

information, become more pertinent as an

investigation progresses. The OTS therefore

believes that it is appropriate to exempt the

above-listed systems of records from the

provisions of 5 U.S.C. 552a(e)(5).

(k) 5 U.S.C. 552a(e)(8) requires that an

agency make reasonable efforts to serve

notice on an individual when any record on

the individual is made available to any

person under compulsory legal process when

such process becomes a matter of public

record. The OTS believes that the abovelisted systems of records should be exempt

from this provision in order to avoid

revealing investigative techniques and

procedures outlined in those records and in

order to prevent revelation of the existence

of an on-going investigation where there is a

need to keep the existence of the

investigation secret.

(1) 5 U.S.C. 552a(g) provides civil remedies

to an individual for an agency refusal to

amend a record or to make a review of a

request for amendment, for an agency refusal

to grant access to a record, for an agency

failure to maintain accurate, relevant, timely

and complete records which are used to

make a determination which is adverse to the

individual, and for an agency failure to

comply with any other provision of 5 U.S.C.

552a in such a way as to have an adverse

effect on an individual. The OTS believes

that the above-listed systems of records

should be exempted from this provision to

the extent that the civil remedies provided

therein may be related to provisions of 5

U.S.C. 552a from which the above-listed

systems of records are proposed to be

exempt. Since the provisions of 5 U.S.C. 552a

enumerated in paragraph (a) through (k)

above proposed to be inapplicable to the

above-listed systems of records for the

reasons stated therein, there should be no

corresponding civil remedies for failure to

comply with the requirements of those

provisions to which the exemption is

proposed to apply. Further, the OTS believes

that the application of this provision to the

above-listed systems of records would

adversely affect its ability to conduct

investigations by exposing to civil court

actions every stage of the investigative

process in which information is compiled or

used in order to identify, detect, apprehend

and otherwise investigate persons suspected

or known to be engaged in conduct in

violation of applicable laws.

b. Specific exemptions under 5 U.S.C.

552a(k)(2). Pursuant to the provisions of 5

U.S.C. 552a(k)(2), the Office of Thrift

Supervision, hereby exempts certain systems

of records, maintained by the Office of Thrift

Supervision, from the provisions of 5 U.S.C.

552a (c)(3), (d)(1), (2), (3) and (4), (e)(1) and

(4)(G), (H), and (I) and (f).

1. Exempt systems. The following systems

of records, which contain information of the

type described in 5 U.S.C. 552a(k)(2), shall be

exempt from the provisions of 5 U.S.C. 552a

listed in paragraph b. above except as

otherwise indicated below and in the general

notice of the existence and character of

systems of records which appears elsewhere

in the Federal Register:

.001—Confidential Individual Information

System

.004—Criminal Referral Database

2. Reasons for exemptions. (a) 5 U.S.C.

552a (e)(4)(G) and (f)(1) enable individuals to

be notified whether a system of records

contains records pertaining to them. The OTS

believes that application of these provisions

(to those of the above-listed systems of

records for which no notification procedures

have been provided in the general notice of

the existence and character of systems of

records which appears elsewhere in the

Federal Register) would impair the ability of

the OTS to successfully complete

investigations and inquiries of suspected

violators of laws and regulations under its

jurisdiction. In many cases investigations and

inquiries into violations of laws and

regulations involve complex and continuing

patterns of behavior. Individuals, if informed

that they have been identified as suspected

violators of laws and regulations, would have

an opportunity to take measures to prevent

detection of illegal action so as to avoid

prosecution or the imposition of civil

sanctions. They would also be able to learn

the nature and location of the investigation

and the type of inquiry being made, and they

would be able to transmit this knowledge to

co-conspirators. Finally, violators might be

given the opportunity to destroy evidence

needed to prove the violation under

investigation or inquiry.

(b) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2),

(3) and (5) enable individuals to gain access

to records pertaining to them. The OTS

believes that application of these provisions

to the above-listed systems of records would

impair its ability to complete or continue

investigations and inquiries and to detect and

apprehend violators of the applicable laws.

Permitting access to records contained in the

above-listed systems of records would

provide violators with significant

information concerning the nature of the

investigation or inquiry. Knowledge of the

facts developed during an investigation or

inquiry would enable violators of laws and

regulations to learn the extent to which the

investigation or inquiry has progressed, and

this could provide them with an opportunity

to destroy evidence that would form the basis

for the imposition of civil sanctions. In

addition, knowledge gained through access to

investigatory material could alert a violator to

the need to temporarily postpone

commission of the violation or to change the

intended point where the violation is to be

committed so as to avoid detection or

apprehension. Further, access to

investigatory material would disclose

investigative techniques and procedures

which, if known, could enable violators to

structure their future operations in such a

way as to avoid detection or apprehension,

thereby neutralizing investigators’

established and effective investigative tools

and procedures. In addition, investigatory

material may contain the identity of

confidential sources who would not want

their identities to be disclosed for reasons of

personal privacy or for fear of reprisal at the

hands of the individual about whom they

supplied information. In some cases mere

disclosure of the information provided by a

source would reveal the identity of the

source either through the process of

elimination or by virtue of the nature of the

information supplied. If sources could not be

assured that their identities (as sources for

information) would remain confidential, they

would be very reluctant in the future to

provide information pertaining to violations

of laws and regulations, and this would

seriously compromise the ability of the OTS

to carry out its mission. Further, application

of 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3)

and (5) to the above-listed systems of records

would make available attorney’s work

product and other documents which contain

evaluations, recommendations, and

discussions of ongoing legal proceedings; the

availability of such documents could have a

chilling effect on the free flow of information

and ideas within the OTS which is vital to

the agency’s predecisional deliberative

process, could seriously prejudice the

agency’s or the Government’s position in

litigation, and could result in the disclosure

of investigatory material which should not be

disclosed for the reasons stated above. It is

the belief of the OTS that due process will

assure that individuals have a reasonable

opportunity to learn of the existence of, and

to challenge, investigatory records and

related materials which are to be used in

legal proceedings.

(c) 5 U.S.C. 552a(d) (2), (3) and (4),

(e)(4)(H) and (f)(4), which are dependent

upon access having been granted to records

pursuant to the provisions cited in

subparagraph (b) above, enable individuals to

contest (seek amendment to) the content of

records contained in a system of records and

require an agency to note an amended record

and to provide a copy of an individual’s

statement (of disagreement with the agency’s

refusal to amend a record) to persons or other

agencies to whom the record has been

disclosed. The OTS believes that the reasons

set forth in subparagraph (b) above are

equally applicable to this subparagraph, and,

accordingly, those reasons are hereby

incorporated herein by reference.

(d) 5 U.S.C. 552a(c)(3) requires that an

agency make accountings of disclosures of

records available to individuals named in the

records at their request; such accountings

must state the date, nature and purpose of

each disclosure of a record and the name and

address of the recipient. The OTS believes

that application of this provision to the
15734 Federal Register / Vol. 60, No. 58 / Monday, March 27, 1995 / Proposed Rules

above-listed systems of records would impair

the ability of the OTS and other law

enforcement agencies to conduct

investigations and inquiries into violations

under their respective jurisdictions. Making

accountings available to violators would alert

those individuals to the fact that the OTS or

another law enforcement authority is

conducting an investigation or inquiry into

their activities, and such accountings could

reveal the geographic location of the

investigation or inquiry, the nature and

purpose of the investigation or inquiry and

the nature of the information disclosed, and

dates on which that investigation or inquiry

was active. Violators possessing such

knowledge would thereby be able to take

appropriate measures to avoid detection or

apprehension by altering their operations,

transferring their activities to other locations

or destroying or concealing evidence which

would form the basis for prosecution or the

imposition of civil sanctions.

(e) 5 U.S.C. 552a(e)(1) requires that an

agency maintain in its records only such

information about an individual as is

relevant and necessary to accomplish a

purpose of the agency required to be

accomplished by statute or executive order.

The term ‘‘maintain’’ as defined in 5 U.S.C.

552a(a)(3) includes ‘‘collect’’ and

‘‘disseminate.’’ At the time that information

is collected by the OTS there is often

insufficient time to determine whether the

information is relevant and necessary to

accomplish a purpose of the OTS; in many

cases information collection may not be

immediately susceptible to a determination

of whether the information is relevant and

necessary, particularly in the early stages of

investigation or inquiry; and in many cases

information which initially appears to be

irrelevant and unnecessary may, upon further

evaluation or upon continuation of the

investigation or inquiry, prove to have

particular relevance to an enforcement

program of the OTS. Further, not all

violations of law uncovered during an OTS

investigation or inquiry fall within the

jurisdiction of the OTS; in order to promote

effective law enforcement it often becomes

necessary and desirable to disseminate

information pertaining to such violations to

other law enforcement agencies which have

jurisdiction over the offense to which the

information relates. The OTS should not be

placed in a position of having to ignore

information relating to violations of law not

within its jurisdiction where that information

comes to the attention of the OTS through the

conduct of a lawful OTS investigation or

inquiry. The OTS therefore believes that it is

appropriate to exempt the above-listed

systems of records from provisions of 5

U.S.C. 552a(e)(1).

Dated: December 15, 1994.

Jonathan L. Fiechter,

Acting Director.

Dated: March 6, 1995.

Alex Rodriguez,

Deputy Assistant Secretary (Administration).

[FR Doc. 95–7342 Filed 3–24–95; 8:45 am]

BILLING CODE 6720–01–M

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 162

[CGD09–95–002]

RIN 2115–AF04

Amendment to Inland Waterways

Navigation Regulations Establishing

Speed Limits on Connecting Waters

From Lake Huron to Lake Erie

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Coast Guard proposes to

amend the speed limits for vessels, less

than 100 gross tons, operating in the

nondisplacement mode on connecting

waters from Lake Huron to Lake Erie.

The normal speed limits in this area are

determined in large part by concerns

about wake damage. However, lesser

wakes are created by nondisplacement

vessels and it appears that the normal

speed limits unnecessarily impede their

passage. The Coast Guard allowed

nondisplacement vessels to operate at

higher speeds under similar conditions

during two temporary test periods from

April 1, 1993 to November 30, 1994,

with satisfactory results. The Coast

Guard invites public comment on this

proposed regulation.

DATES: Comments must be received on

or before May 26, 1995.

ADDRESSES: Comments and supporting

materials should be mailed or delivered

to Lieutenant Katherine E. Weathers,

Assistant Chief, Port and Environmental

Safety Branch, Ninth Coast Guard

District, Room 2069, 1240 E. Ninth

street, Cleveland, Ohio, 44199–2060.

Please reference the name of the

proposal and the docket number in the

heading above. If you wish receipt of

your mailed comment to be

acknowledged, please include a

stamped self-addressed envelope or

postcard for that purpose. Comments

and materials received will be available

for public inspection at the above

location from 9:00 a.m. to 3:00 p.m.

Monday through Friday.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Katherine E. Weathers,

Assistant Chief, Port and Environmental

Safety Branch, Ninth Coast Guard

District, Room 2069, 1240 E. Ninth

Street, Cleveland, Ohio, 44199–2060,

(216) 522–3994.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages

interested persons to participate in this

rulemaking by submitting comments

which may consist of data, views,

arguments, or proposals for

amendments to the proposed

regulations. The Coast Guard does not

currently plan to have a public hearing.

however, consideration will be given to

holding a public hearing if it is

requested. Such a request should

indicate how a public hearing would

contribute substantial information or

views which cannot be received in

written form. If it appears that a public

hearing would contribute to this

rulemaking, the Coast Guard will

announce such a hearing by a later

notice in the Federal Register. The

Coast Guard will consider all comments

received before the closing date

indicated above, and may amend or

revoke this proposal in response to such

comments.

Background and Purpose

Current regulations in 33 CFR 162.138

which apply to connecting waters from

Lake Huron to Lake Erie set the

maximum speed for vessels 20 meters or

more in length at limits ranging from 4

to 12 statute miles per hour in various

areas. One of the primary purposes of

these speed regulations is to limit wake

damage, but they were not written to

account for the substantially lesser

wake-generating characteristics of

nondisplacement vessels. In fact, certain

vessels designed for nondisplacement

operation which have conducted test

operations in the waterway would

generate larger wakes at the lower speed

now required because they would be

forced to operate in a displacement

mode. Also, the vessels which have

conducted test operations in the

waterway operate in a nondisplacement

mode by means of a planing action on

a catamaran hull, thus obtaining a

hydrodynamic lift without use of

projecting foils, and have demonstrated

their suitability for safe operation in

confined and relatively shallow areas.

During the 1993 and 1994 navigation

season, the Commander of the Ninth

Coast Guard District temporarily

amended 33 CFR 162.138 in order to

allow trial runs of these

nondisplacement vessels (33 CFR

162.T139, 58 FR 17526, April 5, 1993

and 59 FR 16563 April 7, 1994). A

corresponding exemption was granted

by the Central Region of the Canadian

Coast Guard, which has authority over

the Canadian waters in the same area.

The two year trial period has proven

successful and the Coast Guard has

therefore determined that there should

now be a permanent amendment to the

regulations in order to prevent an

unnecessary restriction on the operation

of such vessels. The trial period allowed