Rule2021-23834
Privacy Act Regulations for EPA-79
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 12, 2021
Effective
January 11, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is taking direct final action to revise the Agency's Privacy Act regulations to exempt a new system of records, EPA-79, the NEIC Master Tracking System, from certain requirements of the Privacy Act because records in EPA's National Enforcement Investigation Center (NEIC) Master Tracking System are maintained for use in civil and criminal actions.
Full Text
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<title>Federal Register, Volume 86 Issue 216 (Friday, November 12, 2021)</title>
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[Federal Register Volume 86, Number 216 (Friday, November 12, 2021)]
[Rules and Regulations]
[Pages 62729-62732]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-23834]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 16
[EPA-HQ-OECA-2021-0552; FRL-8948-02-OMS]
Privacy Act Regulations for EPA-79
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to revise the Agency's Privacy Act regulations to exempt a
new system of records, EPA-79, the NEIC Master Tracking System, from
certain requirements of the Privacy Act because records in EPA's
National Enforcement Investigation Center (NEIC) Master Tracking System
are maintained for use in civil and criminal actions.
DATES: This rule is effective on January 11, 2022 without further
notice unless EPA receives adverse comment by December 13, 2021. If EPA
receives adverse comment, it will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2021-0552, at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from <a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Michael Roach, Chief, Infrastructure
and Project Support Branch, National Enforcement Investigations Center,
Office of Criminal Enforcement, Forensics and Training, U.S.
Environmental Protection Agency, Building 25--Box 25227, Denver Federal
Center, Denver, CO 80225; <a href="/cdn-cgi/l/email-protection#a1f3cec0c2c98fecc8c2c9c0c4cde1c4d1c08fc6ced7"><span class="__cf_email__" data-cfemail="ebb9848a8883c5a68288838a8e87ab8e9b8ac58c849d">[email protected]</span></a>; (303) 462-9080.
SUPPLEMENTARY INFORMATION:
I. Why is EPA using a direct final rule?
The EPA is publishing this rule without a prior proposed rule
because we view this as a noncontroversial action and anticipate no
adverse comment. However, in the ``Proposed Rules'' section of this
issue of the Federal Register, we are publishing a separate document
that will serve as the proposed rule to exempt a new system of records,
EPA-79, the NEIC Master Tracking System, from certain requirements of
the Privacy Act if adverse comments are received on this direct final
rule. We will not institute a second comment period on this action. Any
parties interested in commenting must do so at this time. For further
information about commenting on this rule, see the ADDRESSES section of
this document.
If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. We would address all public
comments in any subsequent final rule based on the proposed rule.
II. General Information
The EPA published a Privacy Act system of records notice for
information collected using the NEIC Master Tracking System (86 FR
60033, October 29, 2021). The system supports and documents
investigations of persons or organizations alleged to have violated any
Federal environmental statute or regulation or, pursuant to a
cooperative agreement with a state, local, or tribal authority, an
environmental statute or regulation of such authority. NEIC
[[Page 62730]]
maintains information related to such investigative efforts, including
the nature of work, investigation outcomes, required resources, and
information about the supporting staff.
The EPA compiles and maintains the records in the NEIC Master
Tracking System for use in criminal and civil investigations and
actions. This system of records, EPA-79, is maintained by the Office of
Enforcement and Compliance Assurance, Office of Criminal Enforcement,
Forensics and Training, National Enforcement Investigations Center.
This component of EPA performs as its principal function, activities
pertaining to the enforcement of criminal laws.
Pursuant to the Privacy Act, when information is maintained for the
purpose of civil actions, the relevant provision of the Privacy Act is
5 U.S.C. 552a(d)(5) which states ``nothing in this [Act] shall allow an
individual access to any information compiled in reasonable
anticipation of a civil action or proceeding.'' 5 U.S.C. 552a(d)(5).
In addition, section (j)(2) of the Privacy Act provides that the
head of an agency may promulgate regulations to exempt the system from
certain provisions of the Act if the system is maintained by an agency
or component thereof which performs as its principal function any
activity pertaining to the enforcement of criminal laws, including
police efforts to prevent, control, or reduce crime or to apprehend
criminals, and the activities of prosecutors, courts, correctional,
probation, pardon, or parole authorities, 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. 5 U.S.C. 552a(j)(2). Accordingly the EPA is exempting such
records in the NEIC Master Tracking System, EPA-79, from 5 U.S.C.
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(5), (e)(8) and (f)(2)-(f)(5) and (g):
(1) From subsection (c)(3) because making available to a named
individual an accounting of disclosures of records concerning him/her/
them could reveal investigative interest on the part of EPA and/or the
Department of Justice. This could allow record subjects to impede the
investigation, e.g., destroy evidence, intimidate potential witnesses,
or flee the area to avoid inquiries or apprehension by law enforcement
personnel. Further, such a disclosure could reveal the identity of a
confidential source and hamper the Agency's investigation.
(2) From subsection (c)(4), which concerns providing notice to
others regarding corrections or disputed information in accordance with
subsection (d) of the Privacy Act, because no access to these records
is available under subsection (d) of the Act.
(3) From subsection (d), which requires an agency to permit an
individual to access, contest or request amendment of records
pertaining to him/her/them, because the records contained in this
system relate to official Federal investigations. Individual access to
these records could compromise ongoing investigations, reveal
confidential informants and/or sensitive investigative techniques used
in particular investigations, or constitute unwarranted invasions of
the personal privacy of third parties who are involved in a certain
investigation.
(4) From subsections (e)(1) and (e)(5), which require an agency to
collect/maintain only accurate and relevant information about an
individual, because the accuracy or relevance of information obtained
in the course of a law enforcement investigation is not always known
when collected. Material that may seem unrelated, irrelevant, or
incomplete when collected may take on added meaning or significance as
the investigation progresses. Also, in the interest of effective law
enforcement, it is appropriate to retain all information that may aid
in establishing patterns of criminal activity. Therefore, it would
impede the investigative process, whether civil or criminal, if it were
necessary to assure the relevance, accuracy, timeliness and
completeness of all information obtained.
(5) From subsection (e)(2), which 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 the individual's rights, benefits, or privileges
under Federal programs. Application of this provision could impair
investigations and law enforcement by alerting the subject of the
investigation to the existence of the investigation. Further,
compliance with the requirements of this subsection during the course
of an investigation could impede the information gathering process or
cause the destruction of evidence, thus hampering the investigation.
(6) From subsection (e)(3), which requires an agency to inform
those supplying information of its authority to collect the
information, its plans for using or sharing that information, and the
effects of not providing the requested information. The application of
this provision could provide the subject of the investigation with
substantial information about the nature of the investigation, which
could interfere with the investigation. To comply with the requirements
of this subsection during the course of an investigation could impede
the information gathering process especially when undercover operations
or confidential sources are used, thus hampering the investigation.
(7) From subsections (e)(4)(G) and (H), which require an agency to
publish--in the Federal Register--procedures concerning access to
records, because no access to these records is available under
subsection (d) of the Privacy Act, for the reasons explained above in
the discussion of subsection (d).
(8) From subsection (e)(8), which requires notice to an individual
whenever a record on such individual is made available to others under
compulsory legal process, because complying with this provision could
prematurely reveal an ongoing criminal investigation to the subject of
the investigation.
(9) From subsections (f)(2), (f)(3), (f)(4) and (f)(5), concerning
agency rules for obtaining access to records under subsection d,
because this system is exempt from the access and amendment provisions
of subsection (d). Since EPA is claiming that this system of records is
exempt from subsection (d) of the Act, concerning access to records,
the requirements of subsections (f)(2) through (5) of the Act,
concerning agency rules for obtaining access to such records, are
inapplicable and are exempted to the extent that this system of records
is exempted from subsection (d) of the Act.
(10) From subsection (g), which provides for civil remedies if an
agency fails to comply with certain requirements of the Act applicable
to a nonexempt system of records, because EPA is claiming that this
system of records is exempt from subsections (c)(3) and (4); (d);
(e)(1), (2), (3), (4)(G) and (H), (5), and (8); and (f)(2), through (5)
of the Act. The provisions of subsection (g) of the Act are
inapplicable to the extent that this
[[Page 62731]]
system of records is exempted from those subsections of the Act.
The EPA also compiles and maintains the records in the NEIC Master
Tracking System for use in civil investigations and actions. In those
cases, the system again is maintained by the Office of Enforcement and
Compliance Assurance, Office of Criminal Enforcement, Forensics and
Training, National Enforcement Investigations Center. 5 U.S.C.
552a(k)(2) states that the head of an agency may promulgate regulations
to exempt the system from certain provisions of the Act if the system
``contains investigatory material compiled for law enforcement purposes
other than material within the scope of subsection (j)(2)'' of 5 U.S.C.
552a. Accordingly all such records in the NEIC Master Tracking System,
EPA-79, are exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H) and (f)(2) through (f)(5):
(1) From subsection (c)(3) because making available to named
individual an accounting of disclosures of records concerning him/her/
them could reveal investigative interest on the part of EPA and/or the
Department of Justice. This could allow record subjects to impede the
investigation, e.g., destroy evidence, intimidate potential witnesses,
or flee the area to avoid inquiries or apprehension by law enforcement
personnel. Further, such a disclosure could reveal the identity of a
confidential source, and hamper the Agency's investigation.
(2) From subsection (d), which requires an agency to permit an
individual to access, contest or request amendment of records
pertaining to him/her/them, because the records contained in this
system relate to official Federal investigations. Individual access to
these records could compromise ongoing investigations, reveal
confidential informants and/or sensitive investigative techniques used
in particular investigations, or constitute unwarranted invasions of
the personal privacy of third parties who are involved in a certain
investigation.
(3) From subsection (e)(1), which requires each agency to maintain
only such information about an individual as is relevant and necessary
to accomplish a purpose of the agency, because in the course of law
enforcement investigations information may occasionally be obtained or
introduced the accuracy of which is unclear or which is not strictly
relevant or necessary to a specific investigation. In the interests of
effective law enforcement, it is appropriate to retain all information
that may aid in establishing patterns of criminal activity. Moreover,
it would impede any investigative process, whether civil or criminal,
if it were necessary to assure the relevance, accuracy, timeliness and
completeness of all information obtained.
(4) From subsections (e)(4) (G) and (H), which require an agency to
publish--in the Federal Register-- procedures concerning access to
records, because no access to these records is available under
subsection (d) of the Privacy Act, for the reasons explained above in
the discussion of subsection (d).
(5) From subsections (f)(2), (f)(3), (f)(4) and (f)(5) concerning
agency rules for obtaining access to records under subsection d,
because this system is exempt from the access and amendment provisions
of subsection (d). Since EPA is concluding that this system of records
is exempt from subsection (d) of the Act, concerning access to records,
the requirements of subsections (f)(2) through (5) of the Act,
concerning agency rules for obtaining access to such records, are
inapplicable and are exempted to the extent that this system of records
is exempted from subsection (d) of the Act.
Finally, EPA is making conforming edits to the regulations to
remove references to the prior EPA-46 OCEFT/NEIC Master Tracking
System, which EPA-79 replaces.
III. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action was submitted to the Office of Management and Budget
(OMB) for review and was reviewed without comment.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.
C. Paperwork Reduction Act
This action does not impose an information collection burden under
the Paperwork Reduction Act (PRA). This action contains no provisions
constituting a collection of information under the PRA.
D. Regulatory Flexibility Act
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (RFA). This action will not impose any requirements on
small entities.
E. Unfunded Mandates Reform Act
This action does not contain any unfunded mandate as described in
the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538, and does
not significantly or uniquely affect small governments.
F. Executive Order 13132 (Federalism)
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the National Government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
[[Page 62732]]
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
L. The Congressional Review Act
This rule is exempt from the Congressional Review Act (CRA) because
it is a rule of agency organization, procedure or practice that does
not substantially affect the rights or obligations of non-agency
parties.
List of Subjects in 40 CFR Part 16
Environmental protection, Administrative practice and procedure,
Confidential business information, Government employees, Privacy.
Lynnann Hitchens,
Principal Deputy Assistant Administrator.
For the reasons stated in the preamble, title 40, chapter I, part
16 of the Code of Federal Regulations is amended as follows:
PART 16--IMPLEMENTATION OF PRIVACY ACT OF 1974
0
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552a (as revised).
0
2. Amend Sec. 16.11 by:
0
a. Revising paragraph (a);
0
b. Removing and reserving paragraph (c)(3);
0
c. Adding paragraph (c)(5);
0
d. Revising the heading and first two sentences of paragraph (d); and
0
e. Revising the introductory text of paragraph (e).
The revisions and addition read as follows:
Sec. 16.11 General exemptions.
(a) Systems of records affected. (1) EPA-17 OCEFT Criminal
Investigative Index and Files.
(2) EPA-40 Inspector General's Operation and Reporting (IGOR)
System Investigative Files.
(3) EPA-63 eDiscovery Enterprise Tool Suite.
(4) EPA-79 NEIC Master Tracking System.
* * * * *
(c) * * *
(5) The Agency's system of records, EPA-79 system of records is
maintained by the National Enforcement and Investigations Center,
Office of Criminal Enforcement, Forensics and Training, a component of
EPA which performs as its principal function activities pertaining to
the enforcement of criminal laws. Authority for the criminal law
enforcement activities comes from Reorganization Plan No. 3 of 1970 (5
U.S.C. app. 1), effective December 2, 1970; Powers of Environmental
Protection Agency, 18 U.S.C. 3063; Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. 9603; Resource
Conservation and Recovery Act, 42 U.S.C. 6928; Federal Water Pollution
Control Act, 33 U.S.C. 1319, 1321; Toxic Substances Control Act, 15
U.S.C. 2614, 2615; Clean Air Act, 42 U.S.C. 7413; Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. 136j, 136l; Safe Drinking Water
Act, 42 U.S.C. 300h-2, 300i-1; Emergency Planning and Community Right-
To-Know Act of 1986, 42 U.S.C. 11045; and the Marine Protection,
Research, and Sanctuaries Act of 1972, 33 U.S.C. 1415.
(d) Scope of exemption. EPA systems of records 17, 40, 63, and 79
are exempted from the following provisions of the PA: 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), and (H), (5), and
(8); (f)(2) through (5); and (g). To the extent that the exemption for
EPA systems of records 17, 40, 63 and 79 claimed under 5 U.S.C.
552a(j)(2) of the Act is held to be invalid, then an exemption under 5
U.S.C. 552a(k)(2) is claimed for these systems of records from (c)(3),
(d), (e)(1), (e)(4)(G) and (H), and (f)(2) through (5). * * *
(e) Reasons for exemption. EPA systems of records 17, 40, 63, and
79 are exempted from the provisions of the PA in paragraph (d) of this
section for the following reasons:
* * * * *
0
3. Amend Sec. 16.12 by:
0
a. Revising paragraph (a)(1);
0
b. Revising the first sentence in paragraph (a)(4)(i);
0
c. Revising paragraph (a)(4)(iii); and
0
d. Revising the introductory text of paragraph (a)(5).
The revisions read as follows:
Sec. 16.12 Specific exemptions.
(a) * * *
(1) Systems of records affected. (i) EPA-17 OCEFT Criminal
Investigative Index and Files.
(ii) EPA-21 External Compliance Program Discrimination Complaint
Files.
(iii) EPA-30 OIG Hotline Allegation System.
(iv) EPA-40 Inspector General's Operation and Reporting (IGOR)
System Investigative Files.
(v) EPA-41 Inspector General's Operation and Reporting (IGOR)
System Personnel Security Files.
(vi) EPA-63 eDiscovery Enterprise Tool Suite.
(vii) EPA-79 NEIC Master Tracking System.
* * * * *
(4) * * *
(i) EPA systems of records 17, 30, 40, 41, 63, and 79 are exempted
from the following provisions of the PA, subject to the limitations set
forth in 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (4)(G)
and (4)(H); and (f)(2) through (5). * * *
* * * * *
(iii) EPA-17 OCEFT Criminal Investigative Index and Files, EPA-40
Inspector General's Operation and Reporting (IGOR) System Investigative
Files, and EPA-79 NEIC Master Tracking System are exempted under 5
U.S.C. 552a(j)(2), and these systems are exempted under 5 U.S.C.
552a(k)(2) only to the extent that the (j)(2) exemption is held to be
invalid.
(5) Reasons for exemption. EPA systems of records 17, 21, 30, 40,
41, 63, and 79 are exempted from the provisions of the PA in paragraph
(a)(4) of this section for the following reasons:
* * * * *
[FR Doc. 2021-23834 Filed 11-10-21; 8:45 am]
BILLING CODE 6560-50-P
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