[Federal Register Volume 83, Number 234 (Thursday, December 6, 2018)]
[Rules and Regulations]
[Pages 62716-62719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26355]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 16
[EPA-HQ-OEI-2014-0849; FRL-9941-44-OEI]
Revision of the Agency's Privacy Act Regulations for EPA-63
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action on revisions to the Agency's Privacy Act regulations in
order to exempt a new system of records, EPA-63, the eDiscovery
Enterprise Tool Suite, from certain requirements of the Privacy Act
because records in EPA's eDiscovery Enterprise Tool Suite are
maintained for use in civil and criminal actions. A notice has been
published in the Federal Register on July 27, 2018 for the creation of
this new system of records that will contain information collected
using the Agency's suite of tools that search and preserve
electronically stored information (ESI) in support of the Agency's
eDiscovery (electronic discovery) and Freedom of Information Act
processes.
DATES: This rule is effective on March 6, 2019 without further notice,
unless EPA receives adverse comment by January 7, 2019. If EPA receives
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that the direct final rule will not take
effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OEI-2014-0849, at https://www.regulations.gov/. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. 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 https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Brian K. Thompson, Acting Director,
eDiscovery Division, Office of Enterprise Information Programs, U.S.
Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania
Avenue NW, Washington, DC 20460; email: [email protected];
telephone number: 202-564-4256.
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 the
Federal Register, we are publishing a separate document that will serve
as the proposed rule to exempt a new system of records, EPA-63, the
eDiscovery Enterprise Tool Suite, 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 eDiscovery Enterprise Tool Suite.
Depending on the specific need, the Agency will use a combination of
several electronic tools that together assist with the preservation,
search, processing, review and production of electronically stored
information (ESI). The tool suite will be used to preserve, search,
collect, sort and review ESI including email messages, word processing
documents, media files, spreadsheets, presentations, scanned documents
and data sets in support of legal discovery. The Agency will also use
these tools to search for ESI that is responsive to requests for
information submitted under the Freedom of Information Act (FOIA), or
other formal information requests.
The records in EPA's eDiscovery Enterprise Tool Suite are
maintained for use in civil and criminal actions. The Agency's system
of records, EPA-63, is maintained by the Office of Environmental
Information, Office of Enterprise Information Programs, eDiscovery
Division, on behalf of Agency offices that will require use of the
eDiscovery tool suite for both civil and criminal actions. 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).
The system is also maintained for support of criminal enforcement
activity by the EPA. In those cases, the system
[[Page 62717]]
is maintained on behalf of the Criminal Investigation Division, Office
of Criminal Enforcement, Forensics, and Training, Office of Enforcement
and Compliance Assurance--a component of EPA that performs as its
principal function, activities pertaining to the enforcement of
criminal laws. When information is maintained for the purpose of
criminal cases, the relevant provision of the Privacy Act is 5 U.S.C.
552a(j)(2), which states 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-63 is exempt 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 record
subject the accounting of disclosures from records concerning him/her
could reveal investigative interest on the part of EPA and/or the
Department of Justice. This would permit 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, making available to a record subject the accounting
of disclosures could reveal the identity of a confidential source.
(2) From subsection (c)(4) because no access to these records is
available under subsection (d) of the Privacy Act.
(3) From subsection (d) because the records contained in these
systems 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. Amendment of the records in either of these systems
would interfere with ongoing law enforcement proceedings and impose an
unworkable administrative burden by requiring law enforcement
investigations to be continuously reinvestigated.
(4) From subsections (e)(1) and (e)(5) 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.
(5) From subsection (e)(2) because to comply with the requirements
of this subsection during the course of an investigation could impede
the information gathering process, thus hampering the investigation.
(6) From subsection (e)(3) because to comply with the requirements
of this subsection during the course of an investigation could impede
the information gathering process, thus hampering the investigation.
(7) From subsections (e)(4)(G) and (H) because no access to these
records is available under subsection (d) of the Privacy Act.
(8) From subsection (e)(8) because complying with this provision
could prematurely reveal an ongoing criminal investigation to the
subject of the investigation.
(9) From subsection (f)(2), (f)(3), (f)(4) and (f)(5) because this
system is exempt from the access and amendment provisions of subsection
(d).
(10) From subsection (g) 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), (3), (4) and (5) of the
Act, the provisions of subsection (g) of the Act are inapplicable and
are exempted to the extent that this system of records is exempted from
those subsections of the Act.
A final relevant provision of the Privacy Act is 5 U.S.C. 552a
(k)(2), which 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 EPA-63 is exempt from 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H) and (f)(2)-(f)(5):
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
could reveal investigative interest on the part of EPA and/or the
Department of Justice. This would permit 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, making available to a record subject the accounting
of disclosures could reveal the identity of a confidential source.
(2) From subsection (d) because the records contained in these
systems 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. Amendment of the records in either of these systems
would interfere with ongoing law enforcement proceedings and impose an
impossible administrative burden by requiring law enforcement
investigations to be continuously reinvestigated.
(3) From subsection (e)(1) 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), because no access to these
records is available under subsection (d) of the Privacy Act.
(5) From subsection (f)(2), (f)(3), (f)(4) and (f)(5) because this
system is exempt from the access and amendment provisions of subsection
(d).
[[Page 62718]]
III. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
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 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 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
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.
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 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, Privacy, Government employees.
Dated: November 14, 2018.
Vaughn Noga,
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. Adding the system number and name, EPA-63 eDiscovery Enterprise Tool
Suite, at the end of the list in paragraph (a);
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b. Adding paragraph (c)(4);
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c. Revising the first two sentences of paragraph (d); and
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d. Revising the introductory text of paragraph (e).
The additions and revisions read as follows:
Sec. 16.11 General exemptions.
(a) * * *
EPA-63 eDiscovery Enterprise Tool Suite.
* * * * *
(c) * * *
(4) The Agency's system of records, EPA-63 system of records is
maintained by the Office of Environmental Information, Office of
Enterprise Information Programs, on behalf of 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.
(d) Scope of Exemption. EPA systems of records 17, 40, 46 and 63
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, 46 and 63 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). * * *
(e) Reasons for exemption. EPA systems of records 17, 40, 46 and 63
are exempted from the above provisions of the PA for the following
reasons:
* * * * *
0
3. Amend Sec. 16.12 by:
0
a. Adding the system number and name, EPA-63 eDiscovery Enterprise Tool
Suite, at the end of the list in paragraph (a)(1);
[[Page 62719]]
0
b. Revising the first sentence in paragraph (a)(4)(i); and
0
c. Revising the introductory text in paragraph (a)(5).
The addition and revisions read as follows:
Sec. 16.12 Specific exemptions.
(a) * * *
(1) * * *
EPA-63 eDiscovery Enterprise Tool Suite.
* * * * *
(4) * * * (i) EPA systems of records 17, 30, 40, 41, 46 and 63 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). * * *
* * * * *
(5) Reasons for exemption. EPA systems of records 17, 21, 30, 40,
41, 46 and 63 are exempted from the above provisions of the PA for the
following reasons:
* * * * *
[FR Doc. 2018-26355 Filed 12-4-18; 8:45 am]
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