[Federal Register Volume 69, Number 177 (Tuesday, September 14, 2004)]
[Proposed Rules]
[Pages 55377-55386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20678]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 16

[OEI-2002-0009; FRL-7532-2]
RIN 2025-AA13


Implementation of Privacy Act of 1974; Revision to the Privacy 
Act Regulations

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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[[Page 55378]]

SUMMARY: The Environmental Protection Agency (EPA or the Agency) 
proposes to revise its regulations implementing the Privacy Act (PA). 
In accordance with the principles of the National Performance Review, 
EPA is streamlining and condensing its regulations by removing 
superfluous language and using simpler language whenever possible. In 
addition, these regulations contain exemptions for existing systems and 
add new exempted system of records.

DATES: Comments must be received on or before October 14, 2004.

ADDRESSES: Submit your comments, identified by Docket ID No. OEI-2002-
0009, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected].
     Fax: 202 566-1753
     Mail: Office of Environmental Information Docket, 
Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.
     Hand Delivery: Public Reading Room, Room B102, EPA West 
Building, 1301 Constitution Avenue, NW., Washington, DC. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. OEI-2002-0009. 
EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal regulations.gov Web sites are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through EDOCKET or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit EDOCKET on-line or see the Federal Register of May 31, 
2002 (67 FR 38102). Docket: All documents in the docket are listed in 
the EDOCKET index at http://www.epa.gov/edocket. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically in 
EDOCKET or in hard copy at the Office of Environmental Information 
Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Avenue, NW., 
Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 
p.m. e.s.t., Monday through Friday, excluding legal holidays. The 
Docket telephone number is 202 566-1752. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Office of 
Environmental Information Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Judy E. Hutt, PA Officer, Records, 
Privacy and FOIA Branch, Collection Strategies Division, Office of 
Information Collection, Office of Environmental Information (OEI), 
(2822T), EPA, 1200 Pennsylvania Ave, NW., Washington, DC 20460; Phone 
(202) 566-1668; Fax, (202) 566-1639; [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

    1. Submitting CBI. Do not submit this information to EPA through 
EDOCKET, regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. (For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI). In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. Description of Proposed Rules

    EPA proposes to revise its PA rules. All exemptions for existing 
systems have been revised to meet statutory requirements and several 
new exempt systems are added under these rules. Other revisions are 
generally minor and include: ( 1) Making the language gender neutral; 
(2) removing language inconsistencies; (3) a statement of EPA's right 
to determine the adequacy of identification; (4) allowing the Office of 
Inspector General to make appeal determinations related to its PA 
systems of records; and (5) changing the process for submitting PA 
requests to the Agency.

III. Statutory Authority

    EPA is proposing this rule under the authority of 5 U.S.C. 301, 
552a (as revised), and 553.

[[Page 55379]]

IV. Administrative Requirements

A. Regulatory Flexibility Act, as Amended

    The Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq., 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act or any other 
statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as that term 
is defined in the Small Business Administration's regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    EPA has determined that this proposed rule will not have a 
significant economic impact on the small entities. Under the PA, no 
fees shall be charged for providing the first copy of a record or any 
portion to an individual to whom the record pertains. The fee schedule 
for reproducing other records is the same as that set forth in 40 CFR 
21.06. Therefore, under 5 U.S.C. 605(b), I certify that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities.

B. Paperwork Reduction Act

    This proposed rule does not impose any reporting or record keeping 
requirements under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
It pertains solely to the dissemination of information under the PA.

C. Environmental Impact

    This proposed rule is expected to have no environmental impact. It 
pertains solely to the dissemination of information under the PA.

D. Executive Order 12866

    Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], EPA 
must determine whether this proposed rule is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive order.
    The Agency has determined that this proposed rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and therefore not subject to OMB review.

E. Executive Order 13132 on Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive order to include regulations that 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.''
    This proposed rule 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.

F. Executive Order 13175 on Consultation With Indian Tribal Governments

    Executive Order 13175, entitled, ``A Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175.

G. Unfunded Mandates Reform Act of 1995

    Under Section 202 of the Unfunded Mandates Reform Act of 1995 
(UMRA), Pub. L. 104-4, EPA must prepare a budgetary impact statement to 
accompany any general notice of proposed rulemaking or proposed rule 
that includes a federal mandate which may result in estimated costs to 
State, local, or tribal governments in the aggregate, or to the private 
sector, of $100 million or more. Under Section 205, for any rule 
subject to Section 202, EPA generally must select the least costly, 
most cost-effective, or least burdensome alternative that achieves the 
objectives of the rule and is consistent with statutory requirements. 
Under Section 203, before establishing any regulatory requirements that 
may significantly or uniquely affect small governments, EPA must take 
steps to inform and advise small governments of the requirements and 
enable them to provide input.
    EPA has determined that this proposed rule does not include a 
Federal mandate as defined in UMRA. This proposed rule does not include 
a Federal mandate that may result in estimated annual costs to State, 
local or tribal governments in the aggregate, or to the private sector, 
of $100 million or more, and does not establish regulatory requirements 
that may significantly or uniquely affect small governments.

H. Executive Order 13045

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that (1) is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, EPA must evaluate the environmental health 
or safety effects of the planned

[[Page 55380]]

rule on children, and explain why the planned rule is preferable to 
other potentially effective and reasonably feasible alternatives 
considered by EPA.
    This proposed rule is not subject to Executive Order 13045 because 
it is neither economically significant regulatory action as defined 
under Executive Order 12866 nor does it concern an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect of children.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Pub. L. 104-113, section 12(d) (15 U.S.C. 272 
note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when EPA decides not to 
use available and applicable voluntary consensus standards.
    This proposed rule does not involve any technical standards, and 
EPA is not considering the use of any voluntary consensus standards. 
Accordingly, this proposed rule is not subject to the requirements of 
the NTTAA.

J. Executive Order 13211 (Energy Effects)

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. EPA has concluded 
that this rule is not likely to have any adverse energy effects.

List of Subjects in 40 CFR Part 16

    Environmental protection, Administrative practice and procedure, 
Privacy Act, Government employees.

    Dated: August 3, 2004.
Kimberly T. Nelson,
Assistant Administrator and Chief Information Officer.

    For the reasons set out above, EPA proposes to revise 40 CFR Part 
16 as follows:

PART 16--IMPLEMENTATION OF PRIVACY ACT OF 1974

Sec.
16.1 Purpose and scope.
16.2 Definitions.
16.3 Procedures for accessing, correcting, or amending personal 
records.
16.4 Times, places, and requirements for identification of 
individuals making requests.
16.5 Request for correction or amendment of record.
16.6 Initial decision on request for access to, or correction or 
amendment of, records.
16.7 The appeal process.
16.8 Special procedures: Medical Records.
16.9 Fees.
16.10 Penalties
16.11 General exemptions.
16.12 Specific exemptions.

    Authority: 5 U.S.C. 301, 552a (as revised).


Sec.  16.1  Purpose and scope.

    (a) This part implements the Privacy Act of 1974 (5 U.S.C. 552a) 
(PA or Act) by establishing Environmental Protection Agency (EPA or 
Agency) policies and procedures that permit individuals to obtain 
access to and request amendment or correction of information about 
themselves that is maintained in Agency systems of records. This part 
also establishes policies and procedures for administrative appeals of 
requests for access to, or correction or amendment of, records. This 
part does not expand or restrict any rights granted under the PA.
    (b) These procedures apply only to requests by individuals seeking 
their own records and only to records maintained by EPA. These 
procedures do not apply to those systems specifically exempt under 
Sec. Sec.  16.11 and 16.12 herein or to any government-wide systems 
maintained by other Federal agencies.
    (c) PA requests made by individuals for access to records about 
themselves and which are processed under this Part, will also be 
treated as FOIA requests and processed as appropriate under 40 CFR Part 
2 to ensure full disclosure.


Sec.  16.2  Definitions.

    As used in this Part:
    (a) The terms individual, maintain, record, and system of records 
have the same meanings as specified in 5 U.S.C. 552a.
    (b) EPA means the Environmental Protection Agency.
    (c) Working days means calendar days excluding Saturdays, Sundays, 
and Federal holidays.


Sec.  16.3  Procedures for accessing, correcting, or amending personal 
records.

    (a) Any individual who--
    (1) Wishes to be informed whether a system of records maintained by 
EPA contains any record pertaining to him or her;
    (2) Seeks access to an EPA record about him or her that is 
maintained in an EPA PA system of records, including an accounting of 
any disclosures of that record; or
    (3) Seeks to amend or correct a record about him or her that is 
maintained in a system of records, may submit a written request to the 
EPA PA Officer, Environmental Protection Agency (MC-2822T), 1200 
Pennsylvania Avenue NW., Washington, DC 20460 or via e-mail to http://www.epa.gov/privacy, or by fax, (202) 566-1639.
    (b) All requests for access to, or the correction or amendment of, 
personal records should cite the PA of 1974 and reference the type of 
request being made (i.e., access, correction or amendment). Requests 
must include:
    (1) The name of the individual making the request;
    (2) The name of the PA system of records (as set forth in Federal 
Register PA systems of records notices) to which the request relates;
    (3) A description of the records sought;
    (4) A statement whether a personal inspection of the records or a 
copy of the records by mail is desired; and
    (5) A statement declaring his or her identify and stipulating that 
he or she understands it is a misdemeanor punishable by fine up to 
$5,000 to knowingly and willfully seek or obtain access to records 
about another individual under false pretenses.
    (4) A requester who cannot determine which PA system of records to 
request may ask for assistance by writing to the EPA PA Officer, 
Environmental Protection Agency (MC-2822T), 1200 Pennsylvania Avenue 
NW., Washington, DC 20460 or via e-mail to http://www.epa.gov/privacy, 
or by fax, (202) 566-1639.


Sec.  16.4  Times, places, and requirements for identification of 
individuals making requests.

    (a) If an individual requesting access under Sec.  16.3 asks for 
personal inspection of records, and if EPA grants the request, the 
individual may appear at the time and place specified in EPA's response 
or arrange another time with the appropriate Agency official.
    (b) Before conducting a personal inspection of his or her records, 
an individual must present sufficient identification (e.g., driver's 
license,

[[Page 55381]]

employee identification card, social security card, or credit card) to 
establish that he or she is the subject of the records. EPA reserves 
the right to determine the adequacy of the identification. (An 
individual who is unable to provide the identification described under 
paragraph (b) of this section must provide a statement declaring his or 
her identify and stipulating that he or she understands it is a 
misdemeanor punishable by fine up to $5,000 to knowingly and willfully 
seek or obtain access to records about another individual under false 
pretenses.)
    (c) An individual may have another person accompany him or her 
during inspection of the records, and the system manager may require 
the requesting individual to sign a statement authorizing disclosure of 
the record in the presence of that other person.
    (d) An individual may request a copy of the requested record.
    (e) No verification of identity will be required where the records 
sought have been determined to be publicly available under the Freedom 
of Information Act.


Sec.  16.5  Request for correction or amendment of record.

    An individual may request correction or amendment of any record 
pertaining to him or her in a system of records maintained by EPA by 
submitting a request in writing to the EPA PA Officer, Environmental 
Protection Agency (MC-2822T), 1200 Pennsylvania Avenue NW., Washington, 
DC 20460 or via e-mail to http://www.epa.gov/privacy, or by Fax, (202) 
566-1639. The following information must be provided:
    (1) The name of the individual making the request;
    (2) The name of the system of records;
    (3) A copy or detailed description of the information sought to be 
corrected or amended and the specific reasons for the correction or 
amendment; and
    (4) Sufficient documentation of identity as described under Sec.  
16.4(b). (An individual who is unable to provide identification under 
Sec.  16.4(b), or is submitting a request in writing, or on line, must 
provide a statement declaring his or her identify and stipulating that 
he or she understands it is a misdemeanor punishable by fine up to 
$5,000 to knowingly and willfully seek or obtain access to records 
about another individual under false pretenses.)


Sec.  16.6  Initial decision on request for access to, or correction or 
amendment of, records.

    (a) Within 10 working days of receipt of a request, the Agency PA 
Officer will send a letter to the requester acknowledging receipt of 
the request and promptly forward it to the manager or designee of the 
system of records where the requested record is located with 
instructions to:
    (1) Make a determination whether to permit access to the record, or 
to make the requested correction or amendment;
    (2) Inform the requester of that determination and, if the 
determination is to deny access to the record, or to not correct or 
amend it, the reason for that decision and the procedures for appeal.
    (b) If the system manager or designee is unable to decide whether 
to grant a request of access to, or amendment or correction of, a 
record within 30 working days of the Agency's receipt of the request, 
he or she will inform the requester reasons for the delay, and an 
estimate of when a decision will be made.
    (c) In reviewing a request for the correction or amendment of a 
record, the system manager or designee will be guided by the 
requirements of 5 U.S.C. 552a(e)(1) and (e)(5).
    (d) A system manager or designee who decides to grant all or any 
portion of a request to correct or amend a record will inform any 
person or entity outside EPA that was provided the record of the 
correction or amendment, and, where there is an accounting of that 
disclosure, make a note of the action taken in the accounting.
    (e) If a request pursuant to Sec.  16.3 for access to a record is 
in a system of records which is exempted, the records system manager or 
designee will decide whether any information will nonetheless be made 
available. If the decision is to deny access, the reason for denial and 
the appeal procedure will be given to the requester.
    (f) A person whose request for access is initially denied may 
appeal that denial to EPA's PA Officer. EPA's General Counsel will 
decide the appeal within 30 working days. If an appeal concerns a 
system of records maintained by the Office of Inspector General, the PA 
Officer will forward the appeal to the Inspector General who will 
decide on the appeal in accordance with Sec.  16.7. The Inspector 
General will carry out all responsibilities with respect to the appeal 
that are otherwise assigned to EPA's General Counsel under Sec.  16.7.
    (g) If the appeal under Sec.  16.7 (e)(6) is denied, the requester 
will be notified of the right to seek judicial review in accordance 
with subsection (g) of the PA.


Sec.  16.7  The appeal process.

    (a) An individual whose request for access to, or correction or 
amendment of, a record is initially denied and who wishes to appeal 
that denial may do so by sending a letter to EPA's PA Officer within 30 
days of the receipt of the initial denial. The appeal must identify and 
restate the initial request. If an appeal concerns an adverse decision 
by the Office of Inspector General, the PA Officer will forward it to 
the Inspector General, or his or her designee, who will then act on the 
appeal. The Inspector General, or his or her designee, will carry out 
all responsibilities with respect to PA appeals that are otherwise 
assigned to EPA's General Counsel under this section.
    (b) EPA's General Counsel, or his or her designee, will make final 
decisions on PA appeals within 30 working days from the date on which 
the appeal is properly received in the Office of General Counsel, 
unless, for good cause shown, the 30-day period is extended and the 
requester is notified of the extension, in writing. Such extensions 
will be utilized only in exceptional circumstances.
    (c) In conducting PA appeals, the General Counsel, or his or her 
designee, will be guided by the requirements of 5 U.S.C. 552a(e)(1) and 
(e)(5).
    (d) If an appeal is granted in whole or in part, the requester will 
be notified, in writing, and access to the record will be granted, or 
the correction or amendment of the record will be made. In all such 
cases, the PA Officer will ensure that paragraph (d) of this section is 
complied with.
    (e) If the General Counsel decides not to grant all or any portion 
of an appeal, the General Counsel will inform the requester:
    (1) Of the decision and its basis;
    (2) Of the requester's right to file a concise statement of reasons 
for disagreeing with EPA's decision;
    (3) Of the procedures for filing such statement of disagreement;
    (4) That such statements of disagreements will be made available in 
subsequent disclosures of the record, together with an agency statement 
(if deemed appropriate) summarizing its refusal;
    (5) That prior recipients of the disputed record will be provided 
with statements as in paragraph (e)(4) of this section, to the extent 
that an accounting of disclosures is maintained under 5 U.S.C. 552a(c); 
and
    (6) Of the requester's right to seek judicial review under 5 U.S.C. 
552a(g).

[[Page 55382]]

Sec.  16.8  Special procedures: Medical Records.

    Should EPA receive a request for access to medical records 
(including psychological records) disclosure of which the system 
manager decides would be harmful to the individual to whom they relate, 
EPA may refuse to disclose the records directly to the individual and 
instead offer to transmit them to a physician designated by the 
individual.


Sec.  16.9  Fees.

    No fees will be charged for providing a copy of the first 100 pages 
of a record or any portion of a record to an individual to whom the 
record pertains. The fee schedule for reproducing other records is the 
same as that set forth in 40 CFR 2.107.


Sec.  16.10  Penalties.

    The Act provides, in pertinent part: ``Any person who knowingly and 
willfully requests or obtains any record concerning an individual from 
an agency under false pretenses shall be guilty of a misdemeanor and 
fined not more than $5,000.'' (5 U.S.C 5552a (i)(3))


Sec.  16.11  General exemptions.

    (a) Systems of records affected. EPA-17 OCEFT Criminal 
Investigative Index and Files.
EPA-40 Inspector General's Operation and Reporting (IGOR) System 
Investigative Files.
EPA-46 OCEFT/NEIC Master Tracking System.

    (b) Authority. Under 5 U.S.C. 552a(j)(2) of the Act, the head of 
any Federal agency may by rule exempt any PA system of records within 
the agency from certain provisions of the Act, 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:
    (1) 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;
    (2) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (3) 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.
    (c) Qualification for exemption. (1) The Agency's system of 
records, EPA-17 system of records is maintained by the Criminal 
Investigation Division, 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 Division's criminal law enforcement activities comes from 
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; Noise 
Control Act of 1972, 42 U.S.C. 4912; 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.
    (2) The Agency's system of records, EPA-40 system of records is 
maintained by the Office of Investigations of the Office of Inspector 
General (OIG), a component of EPA that performs as its principal 
function activities pertaining to the enforcement of criminal laws. 
Authority for the criminal law enforcement activities of the OIG's 
Office of Investigations is the Inspector General Act of 1978, as 
amended, 5 U.S.C. app. 3.
    (3) The Agency's system of records, EPA-46 system of records is 
maintained by the National Enforcement 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, and 46 are 
exempt 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, and 46 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), (H), and (f)(2) through (5). For Agency's system of records, 
EPA system 40, an exemption is separately claimed under 5 U.S.C. 
552(k)(5) from (c)(3), (d), (e)(1), (e)(4)(G), (4)(H), and (f)(2) 
through (5).
    (e) Reasons for exemption. EPA systems of records 17, 40, and 46 
are exempt from the above provisions of the PA 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 upon 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.
    (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 EPA is 
claiming that these systems of records are exempt from subsection (d) 
of the Act, concerning access to records, this section is inapplicable 
and is exempt to the extent that these systems of records are exempt 
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 or 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

[[Page 55383]]

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 activities, of 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 jurisdiction. In the interest of effective law 
enforcement, the EPA 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 of the 
existence of the investigation, 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 
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 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 this 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 on 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) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual at his request if the system of records contains a record 
pertaining to him or her, how to gain access to such a record, and how 
to contest its content. Since EPA is claiming that these systems of 
records are exempt from parts of subsection (f)(2) through (5) of the 
Act, concerning agency rules, and subsection (d) of the Act, concerning 
access to records, these requirements are inapplicable and are exempt 
to the extent that these systems of records are exempt from subsections 
(f) and (d) of the Act. Although EPA is claiming exemption from these 
requirements, the Agency has published such a notice concerning its 
notification, access, and contest procedures because, under certain 
circumstances, EPA might decide it is appropriate for an individual to 
have access to all or a portion of the individual's records in these 
systems of records.
    (8) 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 
would 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 then 
placed into a logical order to prove or disprove objectively the 
criminal behavior of an individual. Material that may seem unrelated, 
irrelevant, or incomplete when collected may 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.
    (9) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record on such 
individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record. Complying 
with this provision could prematurely reveal an ongoing criminal 
investigation to the subject of the investigation.
    (10) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby on an individual can be 
notified in response to his request if any system of records named by 
the individual contains a record pertaining to him or her. Since EPA is 
claiming that these systems of records are 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 exempt to 
the extent that these systems of records are exempt from subsection (d) 
of the Act. Although EPA is claiming exemption from the requirements of 
subsection (f)(2) through (5) of the Act, EPA has promulgated rules 
which establish Agency procedures because, under certain circumstances, 
it might be appropriate for an individual to have access to all or a 
portion of his records

[[Page 55384]]

in these systems of records. These procedures are described elsewhere 
in this Part.
    (11) 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 EPA is claiming that these systems of 
records are exempt from subsections (c)(3) and (4), (d), (e)(1), (2), 
(3), (4)(G), (H), and (I), (5), and (8), and (f) of the Act, the 
provisions of subsection (g) of the Act are inapplicable and are exempt 
to the extent that these systems of records are exempt from those 
subsections of the Act.
    (f) Exempt records provided by another agency. Individuals may not 
have access to records maintained by the EPA if such records were 
provided by another Federal agency which has determined by regulations 
that such records are subject to general exemption under 5 U.S.C. 
552a(j). If an individual requests access to such exempt records, EPA 
will consult with the source agency.
    (g) Exempt records included in a nonexempt system of records. All 
records obtained from a system of records that has been determined by 
regulations to be subject to general exemption under 5 U.S.C. 552a(j) 
retain their exempt status even if such records are also included in a 
system of records for which a general exemption has not been claimed.


Sec.  16.12  Specific exemptions.

    (a) Exemption under 5 U.S.C. 552a(k)(2).
    (1) Systems of records affected. EPA-17 OCEFT Criminal 
Investigative Index and Files.

EPA-21 External Compliance Program Discrimination Complaint Files.
EPA-30 OIG Hotline Allegation System.
EPA-40 Inspector General's Operation and Reporting (IGOR) System 
Investigative Files.
EPA-41 Inspector General's Operation and Reporting (IGOR) System 
Personnel Security Files.
EPA-46 OCEFT/NEIC Master Tracking System.

    (2) Authority. Under 5 U.S.C. 552a(k)(2), the head of any Federal 
agency may by rule exempt any PA system of records within the agency 
from certain provisions of the Act, if the system of records is 
investigatory material compiled for law enforcement purposes, other 
than material within the scope of subsection (j)(2) of the Act. 
However, if any individual is denied any right, privilege, or benefit 
that the individual 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 the material, the material must be provided, except to 
the extent that the disclosure would reveal the identity of a 
confidential source.
    (3) Qualification for exemption. All of the affected PA systems of 
records contain investigatory material compiled for law enforcement 
purposes, material which is not within the scope of subsection (j)(2) 
of the Act.
    (4) Scope of exemption.
    (i) EPA systems of records 17, 30, 40, 41, and 46 are exempt 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). EPA system of records 21 is exempt 
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), and (e)(1).
    (ii) An individual is ``denied any right, privilege, or benefit 
that he or she would otherwise be entitled by Federal law, or for which 
he or she would otherwise be eligible, as a result of the maintenance 
of such material,'' only if EPA actually uses the material in denying 
or proposing to deny such right, privilege, or benefit.
    (iii) EPA-17 OCEFT Criminal Investigative Index and Files, EPA-40 
Inspector General's Operation and Reporting (IGOR) System Investigative 
Files, and EPA-46 OCEFT/NEIC Master Tracking System are exempt under 5 
U.S.C. 552a(j)(2) of the Act, and these systems are exempt under 5 
U.S.C. 552a(k)(2) only to the extent that the (j)(2)of the Act 
exemption is held to be invalid.
    (5) Reasons for exemption. EPA systems of records 17, 21, 30,40, 
41, and 46 are exempt from the above provisions of the PA for the 
following reasons:
    (i) 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 or 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.
    (ii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him or her, to request amendment 
of 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 affected PA 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 or 
her activities, of 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.
    (iii) 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. Maintaining records in this way 
could impair investigations and law enforcement efforts, because it is 
not always possible to detect the relevance or necessity of specific 
information in the early stages of an investigation. The relevance and 
necessity of maintaining information are often questions of judgment 
and timing, and it is only after that information is evaluated that its 
relevance and necessity can be established. In addition, during the 
course of an investigation, the investigator may obtain information 
which is incidental to the main purpose of the investigation but which 
may relate to matters under

[[Page 55385]]

the investigative jurisdiction of another agency. Such information 
cannot readily be segregated. Furthermore, during the course of an 
investigation, the investigator may obtain information concerning the 
violation of laws other than those within the scope of the agency's 
jurisdiction. In the interest of effective law enforcement, EPA 
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.
    (iv) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual upon request if the system of records contains a record 
pertaining to him or her, how the individual can gain access to the 
record, and how to contest its content. Since EPA is claiming that 
these systems of records are exempt from subsection (f)(2) through (5) 
of the Act, concerning agency rules, and subsection (d) of the Act, 
concerning access to records, these requirements are inapplicable and 
are exempt to the extent that these systems of records are exempt from 
subsections (f) and (d) of the Act. Although EPA is claiming exemption 
from these requirements, EPA has published such a notice concerning its 
notification, access, and contest procedures because, under certain 
circumstances, EPA might decide it is appropriate for an individual to 
have access to all or a portion of his records in these systems of 
records.
    (v) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his or her request if any system of records named by the 
individual contains a record pertaining to him or her. Since EPA is 
claiming that these systems of records are 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 exempt to 
the extent that these systems of records are exempt from subsection (d) 
of the Act. Although EPA is claiming exemption from the requirements of 
subsection (f)(2) through (5), EPA has promulgated rules which 
establish Agency procedures because, under certain circumstances, it 
might be appropriate for an individual to have access to all or a 
portion of his records in these systems of records. These procedures 
are described elsewhere in this Part.
    (b) Exemption under 5 U.S.C. 552a(k)(5).
    (1) Systems of records affected. EPA 36 Research Grant, Cooperative 
Agreement, and Fellowship Application Files.
    EPA 40 Inspector General's Operation and Reporting (IGOR) System 
Investigative Files.
    EPA 41 Inspector General's Operation and Reporting (IGOR) System 
Personnel Security Files.
    (2) Authority. Under 5 U.S.C. 552a(k)(5), the head of any agency 
may by rule exempt any system of records within the agency from certain 
provisions of the PA, if the system of records is investigatory 
material compiled solely for the purpose of determining suitability, 
eligibility, or qualifications for Federal civilian employment, Federal 
contracts, or access to classified information, but only 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 September 27, 1975, under an implied promise that the 
identity would be held in confidence.
    (3) Qualification for exemption. These systems contain 
investigatory material compiled solely for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, military service, Federal contracts, or access to 
classified information.
    (4) Scope of exemption.
    (i) EPA 36 is exempt from 5 U.S.C. 552a(c)(3) and (d). EPA 40 and 
41 are exempt from the following provisions of the PA, subject to the 
limitations of 5 U.S.C. 552a(k)(5); 5 U.S.C. 552a(c)(3); (d); (e)(1), 
(4)(H); and (f)(2) through (5).
    (ii) To the extent that records in EPA 40 and 41 reveal a violation 
or potential violation of law, then an exemption under 5 U.S.C. 
552a(k)(2) is also claimed for these records. EPA 40 is also exempt 
under 5 U.S.C. 552a(j)(2) of the Act.
    (5) Reasons for exemption. EPA 36, 40, and 41 are exempt from the 
above provisions of the PA for the following reasons:
    (i) 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 or 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. Making such an accounting could cause the 
identity of a confidential source to be revealed, endangering the 
physical safety of the confidential source, and could impair the 
ability of the EPA to compile, in the future, investigatory material 
for the purpose of determining suitability, eligibility, or 
qualifications for Federal civilian employment, Federal contracts, or 
access to classified information.
    (ii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him or 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 such access could cause the identity of a confidential source 
to be revealed, endangering the physical safety of the confidential 
source, and could impair the ability of the EPA to compile, in the 
future, investigatory material for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, Federal contracts, or access to classified information.
    (iii) 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, 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.
    (iv) 5 U.S.C. 552a(e)(4)(H) requires an agency to publish a Federal 
Register notice concerning its procedures for notifying an individual 
upon request how to gain access to any record pertaining to him or her 
and how to contest its content. Since EPA is claiming that these 
systems of records are exempt from subsections (f)(2) through (5) of 
the Act, concerning agency rules, and subsection (b) of the Act, 
concerning access to records, these requirements are inapplicable and 
are exempt to the extent that these systems of records are exempt from 
subsections (f)(2) through (5) and (d) of the Act. Although EPA is 
claiming exemption from these requirements, EPA has published such a 
notice concerning its access and contest procedures because, under 
certain circumstances, EPA might decide it is appropriate for an 
individual to have access to all or a portion of his records in these 
systems of records.

[[Page 55386]]

    (v) 5 U.S.C. 552a(f)(2) through (5) require an agency to promulgate 
rules for obtaining access to records. Since EPA is claiming that these 
systems of records are 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 exempt to the extent that this 
system of records is exempt from subsection (d) of the Act. Although 
EPA is claiming exemption from the requirements of subsections (f)(2) 
through (5) of the Act, EPA has promulgated rules which establish 
Agency procedures because, under certain circumstances, it might be 
appropriate for an individual to have access to all or a portion of his 
records in this system of records. These procedures are described 
elsewhere in this part.
    (c) Exemption under 5 U.S.C. 552a(k)(1).
    (1) System of records affected. EPA 41 Inspector General's 
Operation and Reporting (IGOR) System Personnel Security Files.
    (2) Authority. Under 5 U.S.C. 552a(k)(1), the head of any agency 
may by rule exempt any system of records within the agency from certain 
provisions of the PA of 1974, if the system of records is subject to 
the provisions of 5 U.S.C. 552(b)(1). A system of records is subject to 
the provisions of 5 U.S.C. 552(b)(1) if it contains records that are 
specifically authorized under criteria established by an Executive 
order to be kept secret in the interest of national defense or foreign 
policy and are in fact properly classified pursuant to such Executive 
order.
    (3) Qualification for Exemption. EPA 41 may contain some records 
that bear a national defense/foreign policy classification of 
Confidential, Secret, or Top Secret.
    (4) Scope of exemption. To the extent that EPA 41 contains records 
provided by other Federal agencies that are specifically authorized 
under criteria established by Executive Order to be kept secret in the 
interest of national defense or foreign policy and are in fact properly 
classified by other Federal agencies pursuant to that Executive order, 
the system of records is exempt from the following provisions of the 
PA: 5 U.S.C. 552a(c)(3); (d); (e)(1), (4)(G) and (4)(H); and (f)(2) 
through (5).
    (5) Reasons for exemption. EPA 41 is exempt from the above 
provisions of the PA for the following reasons:
    (i) 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 request. These accountings must state the date, nature, 
and purpose of each disclosure of a record and the name and address of 
the recipient. Making such an accounting could result in the release of 
properly classified information, which would compromise the national 
defense or disrupt foreign policy.
    (ii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him or 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 such access could cause the release of properly classified 
information, which would compromise the national defense or disrupt 
foreign policy.
    (iii) 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 personnel security investigations which use properly 
classified information, because it is not always possible to know 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.
    (iv) 5 U.S.C. 552a(e)(4) (G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual upon request if the system of records contains a record 
pertaining to him or her, how to gain access to such a record, and how 
to contest its content. Since EPA is claiming that this system of 
records is exempt from subsection (f) of the Act, concerning agency 
rules, and subsection (d) of the Act, concerning access to records, 
these requirements are inapplicable and are exempt to the extent that 
this system of records is exempt from subsections (f) and (d) of the 
Act. Although EPA is claiming exemption from these requirements, EPA 
has published such a notice concerning its notification, access, and 
contest procedures because, under certain circumstances, EPA might 
decide it is appropriate for an individual to have access to all or a 
portion of his records in this system of records.
    (v) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his request if any system of records named by the 
individual contains a record pertaining to him or her. 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 exempt to the extent 
that this system of records is exempt from subsection (d) of the Act. 
Although EPA is claiming exemption from the requirements of subsection 
(f) of the Act, EPA has promulgated rules which establish Agency 
procedures because, under certain circumstances, it might be 
appropriate for an individual to have access to all or a portion of his 
or her records in this system of records. These procedures are 
described elsewhere in this part.
    (d) Exempt records provided by another Federal agency. Individuals 
may not have access to records maintained by the EPA if such records 
were provided by another Federal agency which has determined by 
regulations that such records are subject to general exemption under 5 
U.S.C. 552a(j) or specific exemption under 5 U.S.C. 552a(k). If an 
individual requests access to such exempt records, EPA will consult 
with the source agency.
    (e) Exempt records included in a nonexempt system of records. All 
records obtained from a system of records which has been determined by 
regulations to be subject to specific exemption under 5 U.S.C. 552a(k) 
retain their exempt status even if such records are also included in a 
system of records for which a specific exemption has not been claimed.

[FR Doc. 04-20678 Filed 9-13-04; 8:45 am]
BILLING CODE 6560-50-P