[Federal Register Volume 86, Number 216 (Friday, November 12, 2021)]
[Rules and Regulations]
[Pages 62729-62732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23834]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 16

[EPA-HQ-OECA-2021-0552; FRL-8948-02-OMS]


Privacy Act Regulations for EPA-79

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to revise the Agency's Privacy Act regulations to exempt a 
new system of records, EPA-79, the NEIC Master Tracking System, from 
certain requirements of the Privacy Act because records in EPA's 
National Enforcement Investigation Center (NEIC) Master Tracking System 
are maintained for use in civil and criminal actions.

DATES: This rule is effective on January 11, 2022 without further 
notice unless EPA receives adverse comment by December 13, 2021. If EPA 
receives adverse comment, it will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2021-0552, at 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: Michael Roach, Chief, Infrastructure 
and Project Support Branch, National Enforcement Investigations Center, 
Office of Criminal Enforcement, Forensics and Training, U.S. 
Environmental Protection Agency, Building 25--Box 25227, Denver Federal 
Center, Denver, CO 80225; [email protected]; (303) 462-9080.

SUPPLEMENTARY INFORMATION:

I. Why is EPA using a direct final rule?

    The EPA is publishing this rule without a prior proposed rule 
because we view this as a noncontroversial action and anticipate no 
adverse comment. However, in the ``Proposed Rules'' section of this 
issue of the Federal Register, we are publishing a separate document 
that will serve as the proposed rule to exempt a new system of records, 
EPA-79, the NEIC Master Tracking System, from certain requirements of 
the Privacy Act if adverse comments are received on this direct final 
rule. We will not institute a second comment period on this action. Any 
parties interested in commenting must do so at this time. For further 
information about commenting on this rule, see the ADDRESSES section of 
this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

II. General Information

    The EPA published a Privacy Act system of records notice for 
information collected using the NEIC Master Tracking System (86 FR 
60033, October 29, 2021). The system supports and documents 
investigations of persons or organizations alleged to have violated any 
Federal environmental statute or regulation or, pursuant to a 
cooperative agreement with a state, local, or tribal authority, an 
environmental statute or regulation of such authority. NEIC

[[Page 62730]]

maintains information related to such investigative efforts, including 
the nature of work, investigation outcomes, required resources, and 
information about the supporting staff.
    The EPA compiles and maintains the records in the NEIC Master 
Tracking System for use in criminal and civil investigations and 
actions. This system of records, EPA-79, is maintained by the Office of 
Enforcement and Compliance Assurance, Office of Criminal Enforcement, 
Forensics and Training, National Enforcement Investigations Center. 
This component of EPA performs as its principal function, activities 
pertaining to the enforcement of criminal laws.
    Pursuant to the Privacy Act, when information is maintained for the 
purpose of civil actions, the relevant provision of the Privacy Act is 
5 U.S.C. 552a(d)(5) which states ``nothing in this [Act] shall allow an 
individual access to any information compiled in reasonable 
anticipation of a civil action or proceeding.'' 5 U.S.C. 552a(d)(5).
    In addition, section (j)(2) of the Privacy Act provides that the 
head of an agency may promulgate regulations to exempt the system from 
certain provisions of the Act if the system is maintained by an agency 
or component thereof which performs as its principal function any 
activity pertaining to the enforcement of criminal laws, including 
police efforts to prevent, control, or reduce crime or to apprehend 
criminals, and the activities of prosecutors, courts, correctional, 
probation, pardon, or parole authorities, and which consists of: (A) 
Information compiled for the purpose of identifying individual criminal 
offenders and alleged offenders and consisting only of identifying data 
and notations of arrests, the nature and disposition of criminal 
charges, sentencing, confinement, release, and parole and probation 
status; (B) information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or (C) reports identifiable 
to an individual compiled at any stage of the process of enforcement of 
the criminal laws from arrest or indictment through release from 
supervision. 5 U.S.C. 552a(j)(2). Accordingly the EPA is exempting such 
records in the NEIC Master Tracking System, EPA-79, from 5 U.S.C. 
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), 
(e)(5), (e)(8) and (f)(2)-(f)(5) and (g):
    (1) From subsection (c)(3) because making available to a named 
individual an accounting of disclosures of records concerning him/her/
them could reveal investigative interest on the part of EPA and/or the 
Department of Justice. This could allow record subjects to impede the 
investigation, e.g., destroy evidence, intimidate potential witnesses, 
or flee the area to avoid inquiries or apprehension by law enforcement 
personnel. Further, such a disclosure could reveal the identity of a 
confidential source and hamper the Agency's investigation.
    (2) From subsection (c)(4), which concerns providing notice to 
others regarding corrections or disputed information in accordance with 
subsection (d) of the Privacy Act, because no access to these records 
is available under subsection (d) of the Act.
    (3) From subsection (d), which requires an agency to permit an 
individual to access, contest or request amendment of records 
pertaining to him/her/them, because the records contained in this 
system relate to official Federal investigations. Individual access to 
these records could compromise ongoing investigations, reveal 
confidential informants and/or sensitive investigative techniques used 
in particular investigations, or constitute unwarranted invasions of 
the personal privacy of third parties who are involved in a certain 
investigation.
    (4) From subsections (e)(1) and (e)(5), which require an agency to 
collect/maintain only accurate and relevant information about an 
individual, because the accuracy or relevance of information obtained 
in the course of a law enforcement investigation is not always known 
when collected. Material that may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
the investigation progresses. Also, in the interest of effective law 
enforcement, it is appropriate to retain all information that may aid 
in establishing patterns of criminal activity. Therefore, it would 
impede the investigative process, whether civil or criminal, if it were 
necessary to assure the relevance, accuracy, timeliness and 
completeness of all information obtained.
    (5) From subsection (e)(2), which requires an agency to collect 
information to the greatest extent practicable directly from the 
subject individual when the information may result in adverse 
determinations about the individual's rights, benefits, or privileges 
under Federal programs. Application of this provision could impair 
investigations and law enforcement by alerting the subject of the 
investigation to the existence of the investigation. Further, 
compliance with the requirements of this subsection during the course 
of an investigation could impede the information gathering process or 
cause the destruction of evidence, thus hampering the investigation.
    (6) From subsection (e)(3), which requires an agency to inform 
those supplying information of its authority to collect the 
information, its plans for using or sharing that information, and the 
effects of not providing the requested information. The application of 
this provision could provide the subject of the investigation with 
substantial information about the nature of the investigation, which 
could interfere with the investigation. To comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process especially when undercover operations 
or confidential sources are used, thus hampering the investigation.
    (7) From subsections (e)(4)(G) and (H), which require an agency to 
publish--in the Federal Register--procedures concerning access to 
records, because no access to these records is available under 
subsection (d) of the Privacy Act, for the reasons explained above in 
the discussion of subsection (d).
    (8) From subsection (e)(8), which requires notice to an individual 
whenever a record on such individual is made available to others under 
compulsory legal process, because complying with this provision could 
prematurely reveal an ongoing criminal investigation to the subject of 
the investigation.
    (9) From subsections (f)(2), (f)(3), (f)(4) and (f)(5), concerning 
agency rules for obtaining access to records under subsection d, 
because this system is exempt from the access and amendment provisions 
of subsection (d). Since EPA is claiming that this system of records is 
exempt from subsection (d) of the Act, concerning access to records, 
the requirements of subsections (f)(2) through (5) of the Act, 
concerning agency rules for obtaining access to such records, are 
inapplicable and are exempted to the extent that this system of records 
is exempted from subsection (d) of the Act.
    (10) From subsection (g), which provides for civil remedies if an 
agency fails to comply with certain requirements of the Act applicable 
to a nonexempt system of records, because EPA is claiming that this 
system of records is exempt from subsections (c)(3) and (4); (d); 
(e)(1), (2), (3), (4)(G) and (H), (5), and (8); and (f)(2), through (5) 
of the Act. The provisions of subsection (g) of the Act are 
inapplicable to the extent that this

[[Page 62731]]

system of records is exempted from those subsections of the Act.
    The EPA also compiles and maintains the records in the NEIC Master 
Tracking System for use in civil investigations and actions. In those 
cases, the system again is maintained by the Office of Enforcement and 
Compliance Assurance, Office of Criminal Enforcement, Forensics and 
Training, National Enforcement Investigations Center. 5 U.S.C. 
552a(k)(2) states that the head of an agency may promulgate regulations 
to exempt the system from certain provisions of the Act if the system 
``contains investigatory material compiled for law enforcement purposes 
other than material within the scope of subsection (j)(2)'' of 5 U.S.C. 
552a. Accordingly all such records in the NEIC Master Tracking System, 
EPA-79, are exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H) and (f)(2) through (f)(5):
    (1) From subsection (c)(3) because making available to named 
individual an accounting of disclosures of records concerning him/her/
them could reveal investigative interest on the part of EPA and/or the 
Department of Justice. This could allow record subjects to impede the 
investigation, e.g., destroy evidence, intimidate potential witnesses, 
or flee the area to avoid inquiries or apprehension by law enforcement 
personnel. Further, such a disclosure could reveal the identity of a 
confidential source, and hamper the Agency's investigation.
    (2) From subsection (d), which requires an agency to permit an 
individual to access, contest or request amendment of records 
pertaining to him/her/them, because the records contained in this 
system relate to official Federal investigations. Individual access to 
these records could compromise ongoing investigations, reveal 
confidential informants and/or sensitive investigative techniques used 
in particular investigations, or constitute unwarranted invasions of 
the personal privacy of third parties who are involved in a certain 
investigation.
    (3) From subsection (e)(1), which requires each agency to maintain 
only such information about an individual as is relevant and necessary 
to accomplish a purpose of the agency, because in the course of law 
enforcement investigations information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, 
it would impede any investigative process, whether civil or criminal, 
if it were necessary to assure the relevance, accuracy, timeliness and 
completeness of all information obtained.
    (4) From subsections (e)(4) (G) and (H), which require an agency to 
publish--in the Federal Register-- procedures concerning access to 
records, because no access to these records is available under 
subsection (d) of the Privacy Act, for the reasons explained above in 
the discussion of subsection (d).
    (5) From subsections (f)(2), (f)(3), (f)(4) and (f)(5) concerning 
agency rules for obtaining access to records under subsection d, 
because this system is exempt from the access and amendment provisions 
of subsection (d). Since EPA is concluding that this system of records 
is exempt from subsection (d) of the Act, concerning access to records, 
the requirements of subsections (f)(2) through (5) of the Act, 
concerning agency rules for obtaining access to such records, are 
inapplicable and are exempted to the extent that this system of records 
is exempted from subsection (d) of the Act.
    Finally, EPA is making conforming edits to the regulations to 
remove references to the prior EPA-46 OCEFT/NEIC Master Tracking 
System, which EPA-79 replaces.

III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at 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 was submitted to the Office of Management and Budget 
(OMB) for review and was reviewed without comment.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the Paperwork Reduction Act (PRA). This action contains no provisions 
constituting a collection of information under the PRA.

D. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act (RFA). This action will not impose any requirements on 
small entities.

E. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in 
the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538, and does 
not significantly or uniquely affect small governments.

F. Executive Order 13132 (Federalism)

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the National Government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. Thus, Executive Order 13175 does not apply to 
this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

[[Page 62732]]

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

L. The Congressional Review Act

    This rule is exempt from the Congressional Review Act (CRA) because 
it is a rule of agency organization, procedure or practice that does 
not substantially affect the rights or obligations of non-agency 
parties.

List of Subjects in 40 CFR Part 16

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Government employees, Privacy.

Lynnann Hitchens,
Principal Deputy Assistant Administrator.

    For the reasons stated in the preamble, title 40, chapter I, part 
16 of the Code of Federal Regulations is amended as follows:

PART 16--IMPLEMENTATION OF PRIVACY ACT OF 1974

0
1. The authority citation for part 16 continues to read as follows:

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


0
2. Amend Sec.  16.11 by:
0
a. Revising paragraph (a);
0
b. Removing and reserving paragraph (c)(3);
0
c. Adding paragraph (c)(5);
0
d. Revising the heading and first two sentences of paragraph (d); and
0
e. Revising the introductory text of paragraph (e).
    The revisions and addition read as follows:


Sec.  16.11  General exemptions.

    (a) Systems of records affected. (1) EPA-17 OCEFT Criminal 
Investigative Index and Files.
    (2) EPA-40 Inspector General's Operation and Reporting (IGOR) 
System Investigative Files.
    (3) EPA-63 eDiscovery Enterprise Tool Suite.
    (4) EPA-79 NEIC Master Tracking System.
* * * * *
    (c) * * *
    (5) The Agency's system of records, EPA-79 system of records is 
maintained by the National Enforcement and Investigations Center, 
Office of Criminal Enforcement, Forensics and Training, a component of 
EPA which performs as its principal function activities pertaining to 
the enforcement of criminal laws. Authority for the criminal law 
enforcement activities comes from Reorganization Plan No. 3 of 1970 (5 
U.S.C. app. 1), effective December 2, 1970; Powers of Environmental 
Protection Agency, 18 U.S.C. 3063; Comprehensive Environmental 
Response, Compensation and Liability Act, 42 U.S.C. 9603; Resource 
Conservation and Recovery Act, 42 U.S.C. 6928; Federal Water Pollution 
Control Act, 33 U.S.C. 1319, 1321; Toxic Substances Control Act, 15 
U.S.C. 2614, 2615; Clean Air Act, 42 U.S.C. 7413; Federal Insecticide, 
Fungicide and Rodenticide Act, 7 U.S.C. 136j, 136l; Safe Drinking Water 
Act, 42 U.S.C. 300h-2, 300i-1; Emergency Planning and Community Right-
To-Know Act of 1986, 42 U.S.C. 11045; and the Marine Protection, 
Research, and Sanctuaries Act of 1972, 33 U.S.C. 1415.
    (d) Scope of exemption. EPA systems of records 17, 40, 63, and 79 
are exempted from the following provisions of the PA: 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), and (H), (5), and 
(8); (f)(2) through (5); and (g). To the extent that the exemption for 
EPA systems of records 17, 40, 63 and 79 claimed under 5 U.S.C. 
552a(j)(2) of the Act is held to be invalid, then an exemption under 5 
U.S.C. 552a(k)(2) is claimed for these systems of records from (c)(3), 
(d), (e)(1), (e)(4)(G) and (H), and (f)(2) through (5). * * *
    (e) Reasons for exemption. EPA systems of records 17, 40, 63, and 
79 are exempted from the provisions of the PA in paragraph (d) of this 
section for the following reasons:
* * * * *

0
3. Amend Sec.  16.12 by:
0
a. Revising paragraph (a)(1);
0
b. Revising the first sentence in paragraph (a)(4)(i);
0
c. Revising paragraph (a)(4)(iii); and
0
d. Revising the introductory text of paragraph (a)(5).
    The revisions read as follows:


Sec.  16.12  Specific exemptions.

    (a) * * *
    (1) Systems of records affected. (i) EPA-17 OCEFT Criminal 
Investigative Index and Files.
    (ii) EPA-21 External Compliance Program Discrimination Complaint 
Files.
    (iii) EPA-30 OIG Hotline Allegation System.
    (iv) EPA-40 Inspector General's Operation and Reporting (IGOR) 
System Investigative Files.
    (v) EPA-41 Inspector General's Operation and Reporting (IGOR) 
System Personnel Security Files.
    (vi) EPA-63 eDiscovery Enterprise Tool Suite.
    (vii) EPA-79 NEIC Master Tracking System.
* * * * *
    (4) * * *
    (i) EPA systems of records 17, 30, 40, 41, 63, and 79 are exempted 
from the following provisions of the PA, subject to the limitations set 
forth in 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (4)(G) 
and (4)(H); and (f)(2) through (5). * * *
* * * * *
    (iii) EPA-17 OCEFT Criminal Investigative Index and Files, EPA-40 
Inspector General's Operation and Reporting (IGOR) System Investigative 
Files, and EPA-79 NEIC Master Tracking System are exempted under 5 
U.S.C. 552a(j)(2), and these systems are exempted under 5 U.S.C. 
552a(k)(2) only to the extent that the (j)(2) exemption is held to be 
invalid.
    (5) Reasons for exemption. EPA systems of records 17, 21, 30, 40, 
41, 63, and 79 are exempted from the provisions of the PA in paragraph 
(a)(4) of this section for the following reasons:
* * * * *
[FR Doc. 2021-23834 Filed 11-10-21; 8:45 am]
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