[Federal Register: September 14, 2004 (Volume 69, Number 177)]
[Proposed Rules]
[Page 55377-55386]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14se04-20]
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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: oei.docket@epa.gov.
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; hutt.judy@epa.gov.
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