[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Rules and Regulations]
[Pages 80139-80141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24669]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 16

[EPA-HQ-OMS-2019-0371; FRL-10082-04-OMS]


Privacy Act Regulations for EPA-83

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) is taking 
direct final action to revise the Agency's Privacy Act regulations to 
exempt a modified system of records, EPA-83, the Personnel Security 
System (PSS) 2.0, from certain requirements of the Privacy Act because 
of the data sensitivity contained within an insider threat inquiry. A 
lack of protection of these data could jeopardize the insider threat 
inquiry or additional investigations if warranted.

DATES: This rule is effective on January 16, 2024, without further 
notice unless EPA receives adverse comment by December 18, 2023. 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-
OMS-2019-0371, 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: John Goldsby, Personnel Security 
Branch, Environmental Protection Agency, William Jefferson Clinton 
North Building, Mail code 3206A, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460; telephone number, (202) 564-1569; email address, 
[email protected].

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-83, the Personnel Security System (PSS) 2.0, 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 PSS 
2.0 (85 FR 32380, May 29, 2020) to replace PSS 1.0, which was a module 
of the Office of Administrative Services Information System (OASIS, 
EPA-41), and create a stand-alone system. The Personnel Security Branch 
(PSB) plans to update

[[Page 80140]]

PSS with a new module focused on providing the agency with insider 
threat inquiry management and coordination capabilities. The PSS 2.0 
supports the PSB with tracking the documentation associated with 
background investigations for Federal and non-Federal personnel working 
for EPA. This includes reporting requirements that meet the Security 
Executive Agent Directive (SEAD) 3, which establishes reporting 
requirements for all ``covered individuals'' who have access to 
classified information or who hold a sensitive position. Access to the 
system is restricted to authorized users and PSS is maintained in a 
secure, password protected computer system, in secure areas and 
buildings with physical access controls and environmental controls. In 
the performance of their official duties, EPA federal personnel must 
input and manage Sensitive Personally Identifiable Information (such as 
social security number) and Personally Identifiable Information (such 
as home address and email address). All personnel are required to take 
annual Information Technology Security and Privacy Training to ensure 
the proper handling and management of Sensitive Personally Identifiable 
Information (SPII) and Personally Identifiable Information (PII). The 
data is required in the system to start the onboarding process and to 
manage personnel through lifecycle activity at EPA (such as background 
investigations). PSS 2.0 displays a reminder about the appropriate PII 
and SPII handling procedures every time a user begins to enter data for 
a new background investigation. Additionally, PSS will include a module 
dedicated specifically for insider threat inquiry management and 
coordination. This module will contain details of insider threat 
inquiries, including the names and identifiers of personnel involved in 
such inquiries.
    Pursuant to 5 U.S.C. 552a(k)(2) and (k)(5), an individual's request 
for access to his or her record may be exempt from specific access and 
accounting provisions of the Privacy Act where the ``investigatory 
material [was] compiled for law enforcement purposes''. See 40 CFR 
16.12. Note that the (k)(5) exemption applies only to access requests 
for background investigation records that would identify a confidential 
source. Under 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5), EPA is proposing 
to exempt the PSS 2.0 from the following provisions of the Privacy Act 
of 1974 as amended; 5 U.S.C. 552a; (d); (e)(1); (e)(4) (G), (H), and 
(I); and (f)(2) through (5) for the following reasons:
    (1) From subsection 552a(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 552a(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 552a(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 552a(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 if it were necessary to assure the 
relevance, accuracy, timeliness and completeness of all information 
obtained.
    (5) From subsections 552a(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).
    (6) From subsections 552a(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.
    (7) From subsection 552a(I), concerning agency rules for use of 
records from another agency under a matching program. Such documents 
are owned by and the responsibility of the source agency, and only that 
source agency can share or release the information.
    Note that the (k)(5) exemption applies only to access requests for 
background investigation records that would identify a confidential 
source.

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 reviewed without comment.

B. Paperwork Reduction Act (PRA)

    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.

C. Regulatory Flexibility Act (RFA)

    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.

D. Unfunded Mandates Reform Act (UMRA)

    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.

[[Page 80141]]

E. 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.

F. 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.

G. 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.

H. 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.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. 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).

K. 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.

Kimberly Y. Patrick,
Principal Deputy Assistant Administrator, Office of Mission Support.

    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.  16.12 by:
0
a. Revising paragraphs (a)(1), (a)(4)(i) and (iii), (a)(5) introductory 
text, and (b)(1);
0
b. Adding paragraph (b)(4)(iii); and
0
c. Revising paragraph (b)(5) introductory text.
    The revisions and additions read as follows:


Sec.  16.12   Specific exemptions.

    (a) * * *
    (1) Systems of records affected. (i) EPA-17 Online Criminal 
Enforcement Activities Network (OCEAN).
    (ii) EPA-21 External Compliance Case Tracking System (EXCATS).
    (iii) EPA-30 Inspector General Enterprise Management System (IGEMS) 
Hotline Module.
    (iv) EPA-40 Inspector General Enterprise Management System (IGEMS) 
Investigative Module.
    (v) EPA-63 eDiscovery Enterprise Tool Suite.
    (vi) EPA-79 NEIC Master Tracking System.
    (vii) EPA-83 Personnel Security System (PSS) 2.0.
* * * * *
    (4) * * *
    (i) EPA systems of records 17, 30, 40, 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). EPA system of records 21 is exempt 
from the following provisions of the PA, subject to limitations set 
forth in 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3), (d), and (e)(1). EPA 
system of records 83 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(d); (e)(1); (e)(4)(G), (4)(H) and (4)(I); and (f)(2) through (5).
* * * * *
    (iii) EPA-83 Personnel Security System (PSS) 2.0 is exempted under 
5 U.S.C. 552a(k)(2).
    (5) Reasons for exemption. EPA systems of records 17, 21, 30, 40, 
63, 79, and 83 are exempted from the provisions of the PA in paragraph 
(a)(4) of this section for the following reasons:
* * * * *
    (b) * * *
    (1) Systems of records affected. (i) EPA 36 Research Grant, 
Cooperative Agreement, and Fellowship Application Files.
    (ii) EPA 40 Inspector General's Operation and Reporting (IGOR) 
System Personnel Security Files.
* * * * *
    (4) * * *
    (iii) EPA 83 is exempted from the following provisions of the PA, 
subject to the limitations of 5 U.S.C. 552(a)(k)(5): 5 U.S.C. 552a(d); 
(e)(1); (e)(4)(G), (4)(H) and (4)(I); and (f)(2) through (5).
    (5) Reasons for exemption. EPA 36, 40, 83, and 100 are exempted 
from the above provisions of the PA for the following reasons:
* * * * *

[FR Doc. 2023-24669 Filed 11-16-23; 8:45 am]
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