Privacy Act of 1974; Exemptions

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 16

[FRL-4860-9]

Privacy Act of 1974; Exemptions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to subsection (k) of the Privacy Act of 1974, as

amended, 5 U.S.C. 552a(k), EPA hereby amends its regulations at 40 CFR

part 16 to exempt a system of records from compliance with certain

subsections of the Act. The EPA-30 system of records, which was

previously published in the Federal Register on August 12, 1992 (57 FR

36092), is called ``OIG Hotline Allegation System--EPA/OIG'' and is

maintained by the EPA Office of Inspector General (OIG). This amendment

is made to maintain the efficiency and integrity of OIG investigations,

audits, or referrals that result from complaints concerning the

possible existence of activities constituting a violation of law,

rules, or regulations, mismanagement, gross waste of funds, abuse of

authority, or a substantial and specific danger to the public health or

safety.

EPA published the proposed rule in the Federal Register on November

22, 1993 (58 FR 61638) for a 30-day comment period. No comments were

received from the public. This final rule is identical to the proposed

rule.

EFFECTIVE DATE: April 13, 1994.

FOR FURTHER INFORMATION CONTACT: John C. Jones, Assistant Inspector

General for Management, Office of Inspector General (2441),

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460, Telephone: (202) 260-4912.

SUPPLEMENTARY INFORMATION: On July 2, 1986, EPA's final rule exempting

several systems of records from compliance with certain subsections of

the Privacy Act of 1974, as amended, was published in the Federal

Register (51 FR 24145). EPA claimed a specific exemption for four

systems of records under the authority of 5 U.S.C. 552a(k)(2). The

exempted systems of records are identified at 51 FR 24146 and 24148 and

are codified at 40 CFR 16.14(a)(1).

EPA is adding a system of records to those systems of records for

which a specific exemption under 5 U.S.C. 552a(k)(2) has already been

claimed. The EPA-30 system of records is called ``OIG Hotline

Allegation System--EPA/OIG.'' A notice describing that system of

records was published in the Federal Register on August 12, 1992 (57 FR

36092).

Under the Inspector General Act of 1978, as amended, 5 U.S.C. app.,

EPA's Inspector General has the duty to recommend policies for and to

conduct, supervise, and coordinate activities in EPA and between EPA

and other Federal, State, and local governmental agencies with respect

to: (1) The prevention and detection of fraud in programs and

operations administered or financed by EPA, and (2) the identification

and prosecution of participants in such fraud. In addition, whenever

the Inspector General has reasonable grounds to believe there has been

a violation of Federal criminal law, the Inspector General must report

the matter expeditiously to the Attorney General.

The OIG Hotline Allegation System, which is operated and maintained

by the OIG, Office of Management, Program Management Division, contains

complaints and allegations received from employees of EPA, employees of

other Federal agencies, employees of State and local agencies, and

private citizens concerning the possible existence of fraud relating to

Agency programs and operations. The system has been created in major

part to support the criminal law enforcement activities assigned by the

Inspector General to the Assistant Inspector General for

Investigations.

In addition to its principal function pertaining to the enforcement

of criminal laws, the OIG Hotline Allegation System contains complaints

and allegations received from various sources concerning the possible

existence of activities constituting a noncriminal violation of law,

rules, or regulations, mismanagement, gross waste of funds, abuse of

authority, or a substantial and specific danger to the public health or

safety. Such complaints and allegations are referred to investigators

or auditors in the OIG, to other components of EPA, or to other

Federal, State, or local governmental agencies, as appropriate.

Under 5 U.S.C. 552a(k)(2), the head of any agency may promulgate

rules to exempt a system of records from certain subsections of the

Privacy Act of 1974, as amended, if the system of records contains

investigatory material compiled for law enforcement purposes, other

than material within the scope of 5 U.S.C. 552a(j)(2), subject to

certain restrictions.

Accordingly, EPA is promulgating this rule to exempt the EPA-30

system of records to the extent that the system of records contains

investigatory material compiled for law enforcement purposes, other

than material within the scope of 5 U.S.C. 552a(j)(2), from the

following subsections of the Privacy Act of 1974, as amended, as

permitted by 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3), (d), (e)(1),

(e)(4) (G), (H), and (I), and (f).

Reasons for exemptions: EPA is exempting this system of records

from the above requirements of the Privacy Act of 1974, as amended, to

accomplish the law enforcement functions of the OIG (e.g., to prevent

subjects of investigations from frustrating the investigatory process

by discovering the scope and progress of an investigation; to prevent

the disclosure of investigative techniques; to fulfill commitments made

to protect confidentiality of sources; to maintain access to sources of

information; and to avoid endangering these sources and law enforcement

personnel). Additional reasons for exempting this system of records are

set forth in EPA's final rule pertaining to Privacy Act exemptions

published in the Federal Register of July 2, 1986 (51 FR 24145).

EPA is making this final rule effective upon publication in the

Federal Register to ensure that sensitive information in the EPA-30

system of records is immediately exempt from disclosure so that the OIG

can accomplish the law enforcement functions described above. In

accordance with 5 U.S.C. 553(d)(3), EPA believes this reason

constitutes the required ``good cause'' to make the rule effective

immediately.

Executive Order 12866

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the

Agency must determine whether the regulatory action 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.

EPA has determined that this rule is not a ``significant regulatory

action'' under the terms of Executive Order 12866. OMB received a copy

of the proposed rule during the public comment period and provided no

comments to EPA.

Paperwork Reduction Act

This rule does not constitute an information collection request

within the meaning of the Paperwork Reduction Act of 1980, 44 U.S.C.

3501 et seq. Therefore, this rule is not subject to the requirements of

the Paperwork Reduction Act of 1980.

Regulatory Flexibility Act

Section 604(a) of the Regulatory Flexibility Act, 5 U.S.C. 604(a),

requires EPA to prepare a final regulatory flexibility analysis in

connection with any rulemaking for which EPA must publish a general

notice of proposed rulemaking. The required regulatory flexibility

analysis must contain a statement of the need for the rule, a summary

of the issues raised by public comments, and a description of

alternatives considered.

Section 605(b) of the Act, however, provides that section 604 of

the Act ``shall not apply to any proposed or final rule if the head of

the agency certifies that the rule will not, if promulgated, have a

significant economic impact on a substantial number of small

entities.'' Pursuant to section 605(b) of the Regulatory Flexibility

Act, 5 U.S.C. 605(b), EPA certifies that this rule will not have a

significant economic impact on a substantial number of small entities.

This rule, which exempts the OIG Hotline Allegation System from certain

subsections of the Privacy Act of 1974, as amended, will have no

economic impact on any businesses, large or small.

List of Subjects in 40 CFR Part 16

Environmental protection, Privacy.

Dated: April 1, 1994.

Carol M. Browner,

Administrator.

Therefore, 40 CFR part 16 is amended as follows:

PART 16--[AMENDED]

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

Authority: 5 U.S.C. 552a.

2. Section 16.14 is amended by revising paragraph (a)(1) to read as

follows:

Sec. 16.14 Specific exemptions.

(a) Exemptions under 5 U.S.C. 552a(k)(2).--(1) Systems of records

affected.

EPA-2 General Personnel Records--EPA.

EPA-4 OIG Criminal Investigative Index and Files--EPA/OIG.

EPA-5 OIG Personnel Security Files--EPA/OIG.

EPA-17 NEIC Criminal Investigative Index and Files--EPA/NEIC/

OCI.

EPA-30 OIG Hotline Allegation System--EPA/OIG.

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[FR Doc. 94-8867 Filed 4-12-94; 8:45 am]

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