[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);
0
b. Adding paragraph (c)(4);
0
c. Revising the first two sentences of paragraph (d); and
0
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]
 BILLING CODE 6560-50-P