81 FR 36801 - Privacy Act of 1974; Exemptions

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Federal Register Volume 81, Issue 110 (June 8, 2016)

Page Range		36801-36803
FR Document		2016-13599
The National Archives and Records Administration (NARA) is revising its Privacy Act regulations to add a new insider threat system of records to the records exempt from release under the law enforcement exemption of the Privacy Act. This action is necessary to protect investigatory information from release that could compromise or damage the investigation, result in evidence tampering or destruction, undue influence of witnesses, danger to individuals, and similar harmful effects.
Federal Register, Volume 81 Issue 110 (Wednesday, June 8, 2016)
[Federal Register Volume 81, Number 110 (Wednesday, June 8, 2016)]
[Rules and Regulations]
[Pages 36801-36803]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-13599]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1202

[FDMS No. NARA-16-0005; NARA-2016-021]
RIN 3095-AB91


Privacy Act of 1974; Exemptions

AGENCY: National Archives and Records Administration (NARA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The National Archives and Records Administration (NARA) is 
revising its Privacy Act regulations to add a new insider threat system 
of records to the records exempt from release under the law enforcement 
exemption of the Privacy Act. This action is necessary to protect 
investigatory information from release that could compromise or damage 
the investigation, result in evidence tampering or destruction, undue 
influence of witnesses, danger to individuals, and similar harmful 
effects.

DATES: This rule is effective July 18, 2016, without further action, 
unless NARA receives adverse comments warranting action by July 8, 
2016. If NARA receives an adverse comment warranting further action, it 
will publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES: You may submit comments, identified by RIN 3095-AB91, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include RIN 3095-AB91 
in the subject line of the message.
     Fax: 301-837-0319. Include RIN 3095-AB91 in the subject 
line of the fax cover sheet.
     Mail (for paper, disk, or CD-ROM submissions. Include RIN 
3095-AB91 on the submission): Regulations Comment Desk (External Policy 
Program, Strategy & Performance Division (SP)); Suite 4100; National 
Archives and Records Administration; 8601 Adelphi Road; College Park, 
MD 20740-6001.
     Hand delivery or courier: Deliver comments to front desk 
at the address above.
    Instructions: All submissions must include NARA's name and the 
regulatory information number for this rulemaking (RIN 3095-AB91). We 
may publish any comments we receive without changes, including any 
personal information you include.

FOR FURTHER INFORMATION CONTACT: Kimberly Keravuori, by email at 
[email protected], or by telephone at 301-837-3151.

SUPPLEMENTARY INFORMATION: The National Archives and Records 
Administration (NARA) is adding a system of records to its existing 
inventory of systems subject to the Privacy Act of 1974, as amended (5 
U.S.C. 552(a)) (``Privacy Act''). The new system is NARA 45, Insider 
Threat Program records (we are publishing the NARA 45 SORN concurrently 
with this regulation), and it comprises records gathered for purposes 
of investigating threats to NARA facilities, personnel, or systems, or 
national security. The system contains investigatory material of 
actual, potential, or alleged criminal, civil, or administrative 
violations and law enforcement actions.
    The Privacy Act generally grants individuals the right to access 
agency records maintained about themselves, and the right to request 
that the agency amend those records if they are not accurate, relevant, 
timely, or complete. However, the Privacy Act also exempts, by means of 
ten specific exemptions, an agency from granting a person access to 
information about themselves that the agency compiles for certain types 
of law enforcement or investigatory actions. Specifically for the 
purposes of this rulemaking, the Privacy Act exempts an agency from 
granting access to ``investigatory material compiled for law 
enforcement purposes, other than material within the scope of 
subsection (j)(2) of this section: Provided, however, that if any 
individual is denied any right, privilege, or benefit that he would 
otherwise be entitled by Federal law, or for which he would otherwise 
be eligible, as a result of the maintenance of such material, such 
material shall be provided to such individual, except 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 the effective date of this section [September 27, 1975], 
under an implied promise that the identity of the source would be held 
in confidence.'' 5 U.S.C. 552a(k)(2).
    NARA currently exempts Office of Inspector General investigative 
files under the (k)(2) exemption. See 36 CFR 1202.92. For similar 
reasons, we are now adding the insider threat program files to the same 
regulation section because the Insider Threat Program Records system of 
records contains investigatory material of actual, potential, or 
alleged violations, compiled for law enforcement purposes. Under Office 
of Management and Budget (OMB) Guidelines on the Privacy Act, to 
qualify for this exemption the agency must compile the material for 
some investigative ``law enforcement'' purpose, such as a civil or 
criminal investigation. Multiple court decisions have upheld the 
exemption for investigative records covering a range of purposes from 
discrimination complaints (see, e.g., Menchu v. HHS, 965 F. Supp. 2d 
1238, 1248 (D. Or. 2013)), fraud, waste, and abuse complaints (see, 
e.g., Gowan v. Air Force, 148 F.3d 1182, 1188-89 (10th Cir. 1998)), and 
taxpayer audits (see, e.g., Welsh v. IRS, No. 85-1024, slip op. at 2-3 
(D.N.M. Oct. 21, 1986)), to civil trust fund recovery penalty 
investigations (see, e.g., Berger v. IRS, 487 F. Supp. 2d 482, 497-98 
(D.N.J. 2007), aff'd 288 F. App'x 829 (3d Cir. 2008), cert. denied, 129 
S. Ct. 2789 (2009)) and deportation investigations (see, e.g., Shewchun 
v. INS, No. 95-1920, slip op. at 3, 8-9 (D.D.C. Dec. 10, 1996), summary 
affirmance granted, No. 97-5044 (D.C. Cir. June 5, 1997)). In addition, 
courts have also determined that this exemption covers investigations 
into potential threats to national security (see, e.g., Strang v. U.S. 
Arms Control & Disarmament Agency, 864 F.2d 859, 862-63 n.2 (D.C. Cir. 
1989) (``this case involves not a job applicant undergoing a routine 
check of his background and his ability to perform the job, but an 
existing agency employee investigated for violating national security 
regulations.'')
    Routine background investigation files are generally not exempt 
under the (k)(2) exemption of the Privacy Act, but in some limited 
cases portions of them may be exempt under (k)(2) because they also 
include information that would be the subject of a law

[[Page 36802]]

enforcement investigation under the scope of the exemption (see, e.g., 
Cohen v. FBI, No. 93-1701, slip op. at 4-6 (D.D.C. Oct. 3, 1995) 
(finding that particular information within a background investigation 
file qualified as ``law enforcement'' information ``withheld out of a 
legitimate concern for national security,'' and that `` `[s]o long as 
the investigation was ``realistically based on a legitimate concern 
that federal laws have been or may be violated or that national 
security may be breached'' the records may be considered law 
enforcement records' '' (quoting Vymetalik v. FBI, 785 F.2d 1090, 1098 
(D.C. Cir. 1986), in turn quoting Pratt v. Webster, 673 F.2d 408, 421 
(D.C. Cir. 1982))).
    NARA maintains a centralized hub for insider threat analysis to (1) 
manually and electronically gather, integrate, review, assess, and 
respond to information derived from internal and external sources, and 
(2) identify potential insider threat concerns and conduct an 
appropriate inquiry to resolve the concern. Section 811 of the 
Intelligence Authorization Act for FY 1995; executive orders 13587, 
13526, 12333, and 10450; Presidential Memorandum, National Insider 
Threat Policy and Minimum Standards for Executive Branch Insider Threat 
Programs, November 21, 2012; Presidential Memorandum, Early Detection 
of Espionage and Other Intelligence Activities through Identification 
and Referral of Anomalies, August 23, 1996; and Presidential Decision 
Directive/NSC-12, Security Awareness and Reporting of Foreign Contacts, 
August 5, 1993, authorize these insider threat assessment and 
investigation activities. As a result, the records in this system of 
records qualify as investigative records compiled for law enforcement 
purposes under the meaning of the Privacy Act's (k)(2) exemption. NARA 
is revising its regulations to exempt this information from disclosure 
under the Privacy Act so that it can prevent these investigations from 
being impeded or damaged by releasing the information.

Regulatory Analysis

Review Under Executive Orders 12866 and 13563

    Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 
(September 30, 1993), and Executive Order 13563, Improving Regulation 
and Regulation Review, 76 FR 23821 (January 18, 2011), direct agencies 
to assess all costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
This rule is not ``significant'' under section 3(f) of Executive Order 
12866 because will not create an economic or budgetary impact, create 
an inconsistency or interfere with other agencies, and does not raise 
novel issues; it exempts certain records from certain provisions of the 
Privacy Act in accord with established criteria. The Office of 
Management and Budget (OMB) has reviewed this regulation.

Review Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    This review requires an agency to prepare an initial regulatory 
flexibility analysis and publish it when the agency publishes the 
proposed rule. This requirement does not apply if the agency certifies 
that the rule will not, if promulgated, have a significant economic 
impact on a substantial number of small entities (5 U.S.C. 603). NARA 
certifies, after review and analysis, that this rule will not have a 
significant adverse economic impact on small entities because it does 
not create an economic impact and does not affect small entities; it 
exempts certain records from certain provisions of the Privacy Act.

Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.)

    This rule does not contain any information collection requirements 
subject to the Paperwork Reduction Act.

Review Under Executive Order 13132, Federalism, 64 FR 43255 (August 4, 
1999)

    Review under Executive Order 13132 requires that agencies review 
regulations for federalism effects on the institutional interest of 
states and local governments, and, if the effects are sufficiently 
substantial, prepare a Federal assessment to assist senior policy 
makers. This rule will not have any direct effects on State and local 
governments within the meaning of the Executive Order. Therefore, the 
regulation requires no federalism assessment.

List of Subjects in 36 CFR Part 1202

    Privacy.
    For the reasons stated in the preamble, NARA proposes to amend 36 
CFR part 1202 as follows:

PART 1202--REGULATIONS IMPLEMENTING THE PRIVACY ACT OF 1974

0
1. The authority citation for part 1202 remains as follows:

    Authority:  5 U.S.C. 552(a); 44 U.S.C. 2104(a).


Sec.  1202.92  [Amended]

0
2. Revise Sec.  1202.92 to read as follows:


Sec.  1202.92  What NARA systems of records are exempt from release 
under the Law Enforcement Exemption of the Privacy Act?

    (a) The Investigative Files of the Inspector General (NARA-23) and 
the Insider Threat Program Records (NARA-45) systems of records are 
eligible for exemption under 5 U.S.C. 552a(k)(2) because these record 
systems contain investigatory material of actual, potential, or alleged 
criminal, civil, or administrative violations, compiled for law 
enforcement purposes other than within the scope of subsection (j)(2) 
of 5 U.S.C. 552a. If you are denied any right, privilege, or benefit to 
which you would otherwise be entitled by Federal law, or for which you 
would otherwise be eligible, as a result of the record, NARA will make 
the record available to you, except for any information in the record 
that would disclose the identity of a confidential source as described 
in 5 U.S.C. 552a(k)(2).
    (b) The systems described in paragraph (a) of this section are 
exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1) and (e)(4), (G) and (H), 
and (f). Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) of 5 U.S.C. 552a because releasing 
disclosure accounting could alert the subject of an investigation about 
the alleged violations, about the existence of the investigation, and 
about the fact that they are being investigated by the Office of 
Inspector General (OIG), the Insider Threat Office, or another agency. 
Releasing these records could provide significant information 
concerning the nature of the investigation and result in tampering with 
or destroying evidence, influencing witnesses, endangering individuals 
involved, and other activities that could impede or compromise the 
investigation.
    (2) From the access and amendment provisions of subsection (d) of 5 
U.S.C. 552a because access to the information contained in these 
systems of records could inform the subject of an investigation about 
an actual or potential criminal, civil, or administrative violation; 
about the existence of that investigation; about the nature and scope 
of the information and

[[Page 36803]]

evidence obtained on the person's activities; about the identity of 
confidential sources, witnesses, and law enforcement personnel; and 
about information that may enable the person to avoid being detected or 
apprehended. These factors present a serious impediment to effective 
law enforcement when they prevent investigators from successfully 
completing the investigation, endanger the physical safety of 
confidential sources, witnesses, and law enforcement personnel, or lead 
to improperly influencing witnesses, destroying evidence, or 
fabricating testimony. In addition, granting access to such records 
could disclose security-sensitive or confidential business information 
or information that would constitute an unwarranted invasion of the 
personal privacy of third parties. Amending these records could allow 
the subject to avoid being detected or apprehended and interfere with 
ongoing investigations and law enforcement activities.
    (3) From subsection (e)(1) of 5 U.S.C. 552a because applying this 
provision could impair investigations and interfere with the law 
enforcement responsibilities of the OIG, the Insider Threat Office, or 
another agency for the following reasons:
    (i) It is not possible to detect relevance or need for specific 
information in the early stages of an investigation, case, or matter. 
After the investigators evaluate the information, they may establish 
its relevance and need.
    (ii) During an investigation, the investigating office may obtain 
information about other actual or potential criminal, civil, or 
administrative violations, including those outside the scope of its 
jurisdiction. The office should retain this information, as it may help 
establish patterns of inappropriate activity, and can provide valuable 
leads for Federal and other law enforcement agencies.
    (iii) When interviewing individuals or obtaining other forms of 
evidence during an investigation, the investigator may receive 
information that relates to matters incidental to the primary purpose 
of the investigation but which may also relate to matters under the 
investigative jurisdiction of another office or agency. The 
investigator cannot readily segregate such information.
    (4) From subsection (e)(4)(G) and (H) of 5 U.S.C. 552a because 
these systems are exempt from the access and amendment provisions of 
subsection (d), pursuant to subsection (k)(2) of the Privacy Act.
    (5) From subsection (f) of 5 U.S.C. 552a because these systems are 
exempt from the access and amendment provisions of subsection (d) of 5 
U.S.C. 552a, pursuant to subsection (k)(2) of the Privacy Act.

    Dated: May 29, 2016.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2016-13599 Filed 6-7-16; 8:45 am]
 BILLING CODE 7515-01-P
Federal Register / Vol. 81, No. 110 / Wednesday, June 8, 2016 / Rules and Regulations 36801

This notice of enforcement is issued • Fax: 301–837–0319. Include RIN provided to such individual, except to
under authority of 33 CFR part 165 and 3095–AB91 in the subject line of the fax the extent that the disclosure of such
5 U.S.C. 552(a). In addition to this cover sheet. material would reveal the identity of a
notice of enforcement in the Federal • Mail (for paper, disk, or CD–ROM source who furnished information to the
Register, the Coast Guard will provide submissions. Include RIN 3095–AB91 on Government under an express promise
the maritime community with advanced the submission): Regulations Comment that the identity of the source would be
notification of this enforcement period Desk (External Policy Program, Strategy held in confidence, or, prior to the
via Local Notice to Mariners (LNM) and & Performance Division (SP)); Suite effective date of this section [September
Broadcast Notice to Mariners (BNM). If 4100; National Archives and Records 27, 1975], under an implied promise
the COTP Ohio Valley determines that Administration; 8601 Adelphi Road; that the identity of the source would be
the regulated area need not be enforced College Park, MD 20740–6001. held in confidence.’’ 5 U.S.C. 552a(k)(2).
for the full duration, a BNM to grant • Hand delivery or courier: Deliver NARA currently exempts Office of
general permission to enter the safety comments to front desk at the address Inspector General investigative files
zone may be used. above. under the (k)(2) exemption. See 36 CFR
Instructions: All submissions must 1202.92. For similar reasons, we are
Dated: March 24, 2016.
include NARA’s name and the now adding the insider threat program
R.V. Timme, files to the same regulation section
regulatory information number for this
Captain, U.S. Coast Guard, Captain of the rulemaking (RIN 3095–AB91). We may because the Insider Threat Program
Port Ohio Valley. Records system of records contains
publish any comments we receive
[FR Doc. 2016–13584 Filed 6–7–16; 8:45 am] investigatory material of actual,
without changes, including any
BILLING CODE 9110–04–P personal information you include. potential, or alleged violations,
FOR FURTHER INFORMATION CONTACT: compiled for law enforcement purposes.
Kimberly Keravuori, by email at Under Office of Management and
NATIONAL ARCHIVES AND RECORDS regulation_comments@nara.gov, or by Budget (OMB) Guidelines on the
ADMINISTRATION telephone at 301–837–3151. Privacy Act, to qualify for this
exemption the agency must compile the
36 CFR Part 1202 SUPPLEMENTARY INFORMATION: The
material for some investigative ‘‘law
National Archives and Records enforcement’’ purpose, such as a civil or
[FDMS No. NARA–16–0005; NARA–2016– Administration (NARA) is adding a
021] criminal investigation. Multiple court
system of records to its existing decisions have upheld the exemption
RIN 3095–AB91 inventory of systems subject to the for investigative records covering a
Privacy Act of 1974, as amended (5 range of purposes from discrimination
Privacy Act of 1974; Exemptions U.S.C. 552(a)) (‘‘Privacy Act’’). The new complaints (see, e.g., Menchu v. HHS,
system is NARA 45, Insider Threat 965 F. Supp. 2d 1238, 1248 (D. Or.
AGENCY: National Archives and Records Program records (we are publishing the
Administration (NARA). 2013)), fraud, waste, and abuse
NARA 45 SORN concurrently with this complaints (see, e.g., Gowan v. Air
ACTION: Direct final rule. regulation), and it comprises records Force, 148 F.3d 1182, 1188–89 (10th Cir.
gathered for purposes of investigating 1998)), and taxpayer audits (see, e.g.,
SUMMARY: The National Archives and threats to NARA facilities, personnel, or
Records Administration (NARA) is Welsh v. IRS, No. 85–1024, slip op. at
systems, or national security. The 2–3 (D.N.M. Oct. 21, 1986)), to civil
revising its Privacy Act regulations to system contains investigatory material
add a new insider threat system of trust fund recovery penalty
of actual, potential, or alleged criminal, investigations (see, e.g., Berger v. IRS,
records to the records exempt from civil, or administrative violations and
release under the law enforcement 487 F. Supp. 2d 482, 497–98 (D.N.J.
law enforcement actions. 2007), aff’d 288 F. App’x 829 (3d Cir.
exemption of the Privacy Act. This The Privacy Act generally grants
action is necessary to protect 2008), cert. denied, 129 S. Ct. 2789
individuals the right to access agency (2009)) and deportation investigations
investigatory information from release records maintained about themselves,
that could compromise or damage the (see, e.g., Shewchun v. INS, No. 95–
and the right to request that the agency 1920, slip op. at 3, 8–9 (D.D.C. Dec. 10,
investigation, result in evidence amend those records if they are not
tampering or destruction, undue 1996), summary affirmance granted, No.
accurate, relevant, timely, or complete. 97–5044 (D.C. Cir. June 5, 1997)). In
influence of witnesses, danger to However, the Privacy Act also exempts,
individuals, and similar harmful effects. addition, courts have also determined
by means of ten specific exemptions, an that this exemption covers
DATES: This rule is effective July 18, agency from granting a person access to investigations into potential threats to
2016, without further action, unless information about themselves that the national security (see, e.g., Strang v.
NARA receives adverse comments agency compiles for certain types of law U.S. Arms Control & Disarmament
warranting action by July 8, 2016. If enforcement or investigatory actions. Agency, 864 F.2d 859, 862–63 n.2 (D.C.
NARA receives an adverse comment Specifically for the purposes of this Cir. 1989) (‘‘this case involves not a job
warranting further action, it will publish rulemaking, the Privacy Act exempts an applicant undergoing a routine check of
a timely withdrawal of the rule in the agency from granting access to his background and his ability to
Federal Register. ‘‘investigatory material compiled for law perform the job, but an existing agency
ADDRESSES: You may submit comments, enforcement purposes, other than employee investigated for violating
identified by RIN 3095–AB91, by any of material within the scope of subsection national security regulations.’’)
the following methods: (j)(2) of this section: Provided, however, Routine background investigation
ehiers on DSK5VPTVN1PROD with RULES

• Federal eRulemaking Portal: http:// that if any individual is denied any files are generally not exempt under the
www.regulations.gov. Follow the right, privilege, or benefit that he would (k)(2) exemption of the Privacy Act, but
instructions for submitting comments. otherwise be entitled by Federal law, or in some limited cases portions of them
• Email: Regulation_comments@ for which he would otherwise be may be exempt under (k)(2) because
nara.gov. Include RIN 3095–AB91 in the eligible, as a result of the maintenance they also include information that
subject line of the message. of such material, such material shall be would be the subject of a law

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36802 Federal Register / Vol. 81, No. 110 / Wednesday, June 8, 2016 / Rules and Regulations

enforcement investigation under the approaches that maximize net benefits PART 1202—REGULATIONS
scope of the exemption (see, e.g., Cohen (including potential economic, IMPLEMENTING THE PRIVACY ACT OF
v. FBI, No. 93–1701, slip op. at 4–6 environmental, public health and safety 1974
(D.D.C. Oct. 3, 1995) (finding that effects, distributive impacts, and
particular information within a equity). This rule is not ‘‘significant’’ ■ 1. The authority citation for part 1202
background investigation file qualified under section 3(f) of Executive Order remains as follows:
as ‘‘law enforcement’’ information 12866 because will not create an Authority: 5 U.S.C. 552(a); 44 U.S.C.
‘‘withheld out of a legitimate concern economic or budgetary impact, create an 2104(a).
for national security,’’ and that ‘‘ ‘[s]o inconsistency or interfere with other
long as the investigation was § 1202.92 [Amended]
agencies, and does not raise novel
‘‘realistically based on a legitimate ■ 2. Revise § 1202.92 to read as follows:
issues; it exempts certain records from
concern that federal laws have been or certain provisions of the Privacy Act in § 1202.92 What NARA systems of records
may be violated or that national security
accord with established criteria. The are exempt from release under the Law
may be breached’’ the records may be Enforcement Exemption of the Privacy Act?
Office of Management and Budget
considered law enforcement records’ ’’ (a) The Investigative Files of the
(quoting Vymetalik v. FBI, 785 F.2d (OMB) has reviewed this regulation.
Inspector General (NARA–23) and the
1090, 1098 (D.C. Cir. 1986), in turn Review Under the Regulatory Flexibility Insider Threat Program Records
quoting Pratt v. Webster, 673 F.2d 408, Act (5 U.S.C. 601, et seq.) (NARA–45) systems of records are
421 (D.C. Cir. 1982))). eligible for exemption under 5 U.S.C.
NARA maintains a centralized hub for This review requires an agency to
552a(k)(2) because these record systems
insider threat analysis to (1) manually prepare an initial regulatory flexibility
contain investigatory material of actual,
and electronically gather, integrate, analysis and publish it when the agency
potential, or alleged criminal, civil, or
review, assess, and respond to publishes the proposed rule. This administrative violations, compiled for
information derived from internal and requirement does not apply if the law enforcement purposes other than
external sources, and (2) identify agency certifies that the rule will not, if within the scope of subsection (j)(2) of
potential insider threat concerns and promulgated, have a significant 5 U.S.C. 552a. If you are denied any
conduct an appropriate inquiry to economic impact on a substantial right, privilege, or benefit to which you
resolve the concern. Section 811 of the number of small entities (5 U.S.C. 603). would otherwise be entitled by Federal
Intelligence Authorization Act for FY NARA certifies, after review and law, or for which you would otherwise
1995; executive orders 13587, 13526, analysis, that this rule will not have a be eligible, as a result of the record,
12333, and 10450; Presidential significant adverse economic impact on NARA will make the record available to
Memorandum, National Insider Threat
small entities because it does not create you, except for any information in the
Policy and Minimum Standards for
an economic impact and does not affect record that would disclose the identity
Executive Branch Insider Threat
small entities; it exempts certain records of a confidential source as described in
Programs, November 21, 2012;
from certain provisions of the Privacy 5 U.S.C. 552a(k)(2).
Presidential Memorandum, Early (b) The systems described in
Detection of Espionage and Other Act.
paragraph (a) of this section are exempt
Intelligence Activities through Review Under the Paperwork Reduction from 5 U.S.C. 552a(c)(3), (d), (e)(1) and
Identification and Referral of Act of 1995 (44 U.S.C. 3501 et seq.) (e)(4), (G) and (H), and (f). Exemptions
Anomalies, August 23, 1996; and from the particular subsections are
Presidential Decision Directive/NSC–12, This rule does not contain any
justified for the following reasons:
Security Awareness and Reporting of information collection requirements (1) From subsection (c)(3) of 5 U.S.C.
Foreign Contacts, August 5, 1993, subject to the Paperwork Reduction Act. 552a because releasing disclosure
authorize these insider threat accounting could alert the subject of an
assessment and investigation activities. Review Under Executive Order 13132,
Federalism, 64 FR 43255 (August 4, investigation about the alleged
As a result, the records in this system violations, about the existence of the
of records qualify as investigative 1999)
investigation, and about the fact that
records compiled for law enforcement Review under Executive Order 13132 they are being investigated by the Office
purposes under the meaning of the of Inspector General (OIG), the Insider
requires that agencies review
Privacy Act’s (k)(2) exemption. NARA is Threat Office, or another agency.
regulations for federalism effects on the
revising its regulations to exempt this Releasing these records could provide
information from disclosure under the institutional interest of states and local
governments, and, if the effects are significant information concerning the
Privacy Act so that it can prevent these nature of the investigation and result in
investigations from being impeded or sufficiently substantial, prepare a
Federal assessment to assist senior tampering with or destroying evidence,
damaged by releasing the information. influencing witnesses, endangering
policy makers. This rule will not have
Regulatory Analysis any direct effects on State and local individuals involved, and other
governments within the meaning of the activities that could impede or
Review Under Executive Orders 12866 compromise the investigation.
and 13563 Executive Order. Therefore, the (2) From the access and amendment
Executive Order 12866, Regulatory regulation requires no federalism provisions of subsection (d) of 5 U.S.C.
Planning and Review, 58 FR 51735 assessment. 552a because access to the information
(September 30, 1993), and Executive List of Subjects in 36 CFR Part 1202 contained in these systems of records
ehiers on DSK5VPTVN1PROD with RULES

Order 13563, Improving Regulation and could inform the subject of an
Regulation Review, 76 FR 23821 Privacy. investigation about an actual or
(January 18, 2011), direct agencies to For the reasons stated in the potential criminal, civil, or
assess all costs and benefits of available preamble, NARA proposes to amend 36 administrative violation; about the
regulatory alternatives and, if regulation CFR part 1202 as follows: existence of that investigation; about the
is necessary, to select regulatory nature and scope of the information and

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evidence obtained on the person’s (5) From subsection (f) of 5 U.S.C. 972–3534; email yannayon.laura@
activities; about the identity of 552a because these systems are exempt epa.gov.
confidential sources, witnesses, and law from the access and amendment SUPPLEMENTARY INFORMATION: Section
enforcement personnel; and about provisions of subsection (d) of 5 U.S.C. 553 of the Administrative Procedures
information that may enable the person 552a, pursuant to subsection (k)(2) of Act, 5 U.S.C. 553(b)(B), provides that,
to avoid being detected or apprehended. the Privacy Act. when an agency for good cause finds
These factors present a serious Dated: May 29, 2016. that notice and public procedure are
impediment to effective law David S. Ferriero, impracticable, unnecessary, or contrary
enforcement when they prevent to the public interest, the agency may
Archivist of the United States.
investigators from successfully issue a rule without providing notice
[FR Doc. 2016–13599 Filed 6–7–16; 8:45 am]
completing the investigation, endanger and an opportunity for public comment.
the physical safety of confidential BILLING CODE 7515–01–P
The EPA has determined that there is
sources, witnesses, and law enforcement good cause for making this rule final
personnel, or lead to improperly without prior proposal and opportunity
influencing witnesses, destroying ENVIRONMENTAL PROTECTION for comment because no significant EPA
evidence, or fabricating testimony. In AGENCY judgment is involved in making a
addition, granting access to such records finding of failure to submit SIPs, or
could disclose security-sensitive or 40 CFR Part 52 elements of SIPs, required by the CAA,
confidential business information or where states have made no submissions
[EPA–R09–OAR–2016–0300; FRL–9947–35–
information that would constitute an to meet the requirement by the statutory
Region 9]
unwarranted invasion of the personal date. No additional fact gathering is
privacy of third parties. Amending these Completeness Findings for 110(a)(2)(C) necessary. Thus, notice and public
records could allow the subject to avoid State Implementation Plan Pertaining procedure are unnecessary. The EPA
being detected or apprehended and to the Fine Particulate Matter (PM2.5) finds this constitutes good cause under
interfere with ongoing investigations NAAQS; California; El Dorado County 5 U.S.C. 553(b)(B).
and law enforcement activities. Air Quality Management District and Throughout this document wherever
(3) From subsection (e)(1) of 5 U.S.C. Yolo-Solano Air Quality Management ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
552a because applying this provision District the EPA.
could impair investigations and
AGENCY: Environmental Protection Table of Contents
interfere with the law enforcement
responsibilities of the OIG, the Insider Agency (EPA). I. Background and Overview
Threat Office, or another agency for the ACTION: Final rule. A. Relevant PM2.5 NAAQS
following reasons: B. Revisions to the NSR Program To
SUMMARY: The Environmental Protection Implement the 2006 PM2.5 NAAQS
(i) It is not possible to detect II. This Action
relevance or need for specific Agency (EPA) is making a finding that
A. Completeness Determination
information in the early stages of an the State of California has made a B. Finding of Failure To Submit
investigation, case, or matter. After the complete New Source Review (NSR) III. Statutory and Executive Order Reviews
investigators evaluate the information, State Implementation Plan (SIP)
submission for the El Dorado County I. Background and Overview
they may establish its relevance and
need. Air Quality Management District A. Relevant PM2.5 NAAQS
(ii) During an investigation, the (EDCAQMD) to address the permitting
of emissions of particulate matter 2.5 On October 17, 2006, the EPA
investigating office may obtain promulgated revisions to the NAAQS
information about other actual or micrometers (mm) in diameter and
smaller (PM2.5) from major sources in for PM2.5 with an effective date of
potential criminal, civil, or December 18, 2006 (71 FR 61144). With
administrative violations, including areas designated nonattainment for the
2006 PM2.5 National Ambient Air these revisions, the EPA lowered the 24-
those outside the scope of its hour NAAQS for PM2.5 from 65 mg/m3
jurisdiction. The office should retain Quality Standards (NAAQS), as required
by the Clean Air Act (CAA). In addition, to 35 mg/m3, and retained the existing
this information, as it may help annual PM2.5 NAAQS of 15 mg/m3. The
establish patterns of inappropriate the EPA is making a finding that the
State of California has not made the EPA promulgated designations for the
activity, and can provide valuable leads 2006 PM2.5 NAAQS that became
for Federal and other law enforcement necessary NSR SIP submission for the
Yolo-Solano Air Quality Management effective on December 14, 2009, which
agencies. designated certain areas within the
(iii) When interviewing individuals or District (YSAQMD) to address the
permitting of PM2.5 emissions from jurisdiction of EDCAQMD and
obtaining other forms of evidence YSAQMD as nonattainment for the 2006
during an investigation, the investigator major sources in areas designated
nonattainment for the 2006 PM2.5 PM2.5 NAAQS (74 FR 58688, Nov. 13,
may receive information that relates to 2009).
matters incidental to the primary NAAQS, as required by the EPA no later
purpose of the investigation but which than December 31, 2014. The EPA is B. Revisions to the NSR Program To
may also relate to matters under the making these findings in accordance Implement the 2006 PM2.5 NAAQS
investigative jurisdiction of another with section 110 and part D of Title I of To implement the PM2.5 NAAQS for
office or agency. The investigator cannot the CAA. NSR purposes, the EPA issued a final
readily segregate such information. DATES: The effective date of this rule is rule that established the NSR permitting
ehiers on DSK5VPTVN1PROD with RULES

(4) From subsection (e)(4)(G) and (H) July 8, 2016. requirements for PM2.5, entitled
of 5 U.S.C. 552a because these systems FOR FURTHER INFORMATION CONTACT: Implementation of the New Source
are exempt from the access and Laura Yannayon, Air Division (Air–3), Review (NSR) Program for Particulate
amendment provisions of subsection Environmental Protection Agency, Matter Less than 2.5 Micrometers
(d), pursuant to subsection (k)(2) of the Region 9, 75 Hawthorne St., San (PM2.5), on May 16, 2008 (73 FR 28321).
Privacy Act. Francisco, CA 94105; telephone (415) Among other things, the final rule

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Document Created: 2016-06-08 03:10:40
Document Modified: 2016-06-08 03:10:40
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Direct final rule.
Dates		This rule is effective July 18, 2016, without further action, unless NARA receives adverse comments warranting action by July 8, 2016. If NARA receives an adverse comment warranting further action, it will publish a timely withdrawal of the rule in the Federal Register.
Contact		Kimberly Keravuori, by email at [email protected], or by telephone at 301-837-3151.
FR Citation		81 FR 36801
RIN Number		3095-AB91