[Code of Federal Regulations]
[Title 40, Volume 1]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR16.12]
[Page 223-228]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 16_IMPLEMENTATION OF PRIVACY ACT OF 1974--Table of Contents
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 Sec. rity 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 identify 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 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
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 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, and 46 are exempted from the above provisions of the PA for the
following reasons:
[[Page 224]]
(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 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 exempted
to the extent that these systems of records are exempted from
subsections (f) and
[[Page 225]]
(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 exempted to the extent
that these systems of records are exempted 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 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 Sec. rity 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 exempted from 5 U.S.C.
552a(c)(3) and (d). EPA 40 and 41 are exempted 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 exempted 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
[[Page 226]]
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 exempted
to the extent that these systems of records are exempted 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.
(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 Sec. rity 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 Privacy Act 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, Sec. et, or Top Sec. et.
(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 exempted from the following provisions of the
PA: 5 U.S.C. 552a(c)(3); (d); (e)(1), (4)(G)
[[Page 227]]
and (4)(H); and (f)(2) through (5) of the Act.
(5) Reasons for exemption. EPA 41 is exempted 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 exempted to the extent that
this system of records is exempted 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 exempted 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
regulation 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
regulation to be subject to specific exemption under 5 U.S.C. 552a(k)
retain their exempt
[[Page 228]]
status even if such records are also included in a system of records for
which a specific exemption has not been claimed.
