[Title 31 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1998 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
31
Money and Finance: Treasury
PARTS 0 to 199
Revised as of July 1, 1998
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JULY 1, 1998
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
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U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1998
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
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Table of Contents
Page
Explanation................................................. v
Title 31:
Subtitle A--Office of the Secretary of the Treasury....... 3
Subtitle B--Regulations Relating to Money and Finance:
Chapter I--Monetary Offices, Department of the Treasury... 309
Finding Aids:
Material Approved for Incorporation by Reference.......... 383
Table of CFR Titles and Chapters.......................... 385
Alphabetical List of Agencies Appearing in the CFR........ 403
Redesignation Table....................................... 413
List of CFR Sections Affected............................. 415
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Cite this Code: CFR
To cite the regulations in this volume use title, part and
section number. Thus, 31 CFR 0.101 refers to title 31, part
0, section 101.
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EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
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Many agencies have begun publishing numerous OMB control numbers as
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What is a proper incorporation by reference? The Director of the
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
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The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
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A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 1998.
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THIS TITLE
Title 31--Money and Finance: Treasury is composed of two volumes.
The parts in these volumes are arranged in the following order: parts 0-
199, and part 200 to end. The contents of these volumes represent all
current regulations codified under this title of the CFR as of July 1,
1998.
A redesignation table for subtitle A--Office of the Secretary of the
Treasury appears in the Finding Aids section of the first volume.
For this volume, Karen A. Thornton was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
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TITLE 31--MONEY AND FINANCE: TREASURY
(This book contains parts 0 to 199)
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Part
SUBTITLE A--Office of the Secretary of the Treasury......... 0
SUBTITLE B--Regulations Relating to Money and Finance:
Chapter i--Monetary Offices, Department of the Treasury..... 51
Editorial Note: Other regulations issued by Department of the Treasury
appear in Title 12, Chapter I; Title 19, Chapter I; Title 26, Chapter
I; Title 27, Chapter I; Title 31, Chapters II, IV, V, VI, and VII, and
Title 48, Chapter 10.
Cross Reference: General Accounting Office: See 4 CFR Chapter I.
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Subtitle A--Office of the
Secretary of the Treasury
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Part Page
0 Department of the Treasury Employee Rules of
Conduct................................. 5
1 Disclosure of records....................... 10
2 National security information............... 120
3 Claims regulations and indemnification of
Department of Treasury employees........ 146
4 Employees' personal property claims......... 149
5 Claims collection........................... 150
6 Applications for awards under the Equal
Access to Justice Act................... 165
7 Employee inventions......................... 169
8 Practice before the Bureau of Alcohol,
Tobacco and Firearms.................... 170
9 Effects of imported articles on the national
security................................ 184
10 Practice before the Internal Revenue Service 187
11 Operation of vending facilities by the blind
on Federal property under the control of
the Department of the Treasury.......... 219
12 Restriction of sale and distribution of
tobacco products........................ 220
13 Procedures for providing assistance to State
and local governments in protecting
foreign diplomatic missions............. 221
14 Right to Financial Privacy Act.............. 226
15 Post employment conflict of interest........ 227
16 Regulations implementing the Program Fraud
Civil Remedies Act of 1986.............. 233
17 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Department
of the Treasury......................... 249
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18 Temporary regulations relating to the tax
treatment of Conrail public sale........ 255
19 Governmentwide debarment and suspension
(nonprocurement) and governmentwide
requirements for drug-free workplace
(grants)................................ 259
21 New restrictions on lobbying................ 277
25 Prepayment of foreign military sales loans
made by the Defense Security Assistance
Agency and foreign military sales loans
made by the Federal Financing Bank and
guaranteed by the Defense Security
Assistance Agency....................... 289
26 Environmental Review of Actions by
Multilateral Development Bands (MDBs)... 299
27 Civil penalty assessment for misuse of
Department of the Treasury names,
symbols, etc............................ 302
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PART 0--DEPARTMENT OF THE TREASURY EMPLOYEE RULES OF CONDUCT--Table of Contents
Subpart A--General Provisions
Sec.
0.101 Purpose.
0.102 Policy.
0.103 Definitions.
Responsibilities
0.104 Designated Agency Ethics Official and Alternate Designated Agency
Ethics Official.
0.105 Deputy Ethics Official.
0.106 Bureau Heads.
0.107 Employees.
Subpart B--Rules of Conduct
0.201 Political activity.
0.202 Strikes.
0.203 Gifts or gratuities from foreign governments.
0.204 Use of controlled substances and intoxicants.
0.205 Care of documents and data.
0.206 Disclosure of information.
0.207 Cooperation with official inquiries.
0.208 Falsification of official records.
0.209 Use of Government vehicles.
0.210 Conduct while on official duty or on Government property.
0.211 Soliciting, selling and canvassing.
0.212 Influencing legislation or petitioning Congress.
0.213 General conduct prejudicial to the Government.
0.214 Nondiscrimination.
0.215 Possession of weapons and explosives.
0.216 Privacy Act.
0.217 Personal financial interests.
Subpart C--Special Government Employees
0.301 Applicability of subpart B.
0.302 Service with other Federal agencies.
Subpart D--Advisers to the Department
0.401 Advisers to the Department.
Authority: 5 U.S.C. 301.
Source: 60 FR 28535, June 1, 1995, unless otherwise noted.
Subpart A--General Provisions
Sec. 0.101 Purpose.
(a) The Department of the Treasury Employee Rules of Conduct (Rules)
are separate from and additional to the Standards of Ethical Conduct for
Employees of the Executive Branch (Executive Branch-wide Standards) (5
CFR part 2635) and the Supplemental Standards of Ethical Conduct for
Employees of the Department of the Treasury (Treasury Supplemental
Standards) (to be codified at 5 CFR part 3101). The Rules prescribe
employee rules of conduct and procedure and provide for disciplinary
action for the violation of the Rules, the Treasury Supplemental
Standards, the Executive Branch-wide Standards, and any other rule,
regulation or law governing Department employees.
(b) The Rules are not all-inclusive and may be modified by
interpretive guidelines and procedures issued by the Department's
bureaus. The absence of a specific published rule of conduct covering an
action does not constitute a condonation of that action or indicate that
the action would not result in corrective or disciplinary action.
Sec. 0.102 Policy.
(a) All employees and officials of the Department are required to
follow the rules of conduct and procedure contained in the Rules, the
Treasury Supplemental Standards, the Executive Branch-wide Standards of
Ethical Conduct, the Employee Responsibilities and Conduct (5 CFR part
735), and any bureau issued rules.
(b) Employees found in violation of the Rules, the Treasury
Supplemental Standards, the Executive Branch-wide Standards or any
applicable bureau rule may be instructed to take remedial or corrective
action to eliminate the conflict. Remedial action may include, but is
not limited to:
(1) Reassignment of work duties;
(2) Disqualification from a particular assignment;
(3) Divestment of a conflicting interest; or
(4) Other appropriate action.
(c) Employees found in violation of the Rules, the Treasury
Supplemental Standards, the Executive Branch-wide Standards or any
applicable bureau rule may be disciplined in proportion to the gravity
of the offense committed, including removal. Disciplinary action will be
taken in accordance with applicable laws and regulations and after
consideration of the employee's
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explanation and any mitigating factors. Further, disciplinary action may
include any additional penalty prescribed by law.
Sec. 0.103 Definitions.
The following definitions are used throughout this part: (a) Adviser
means a person who provides advice to the Department as a representative
of an outside group and is not an employee or special Government
employee as those terms are defined in Sec. 0.103.
(b) Bureau means:
(1) Bureau of Alcohol, Tobacco and Firearms;
(2) Bureau of Engraving and Printing;
(3) Bureau of the Public Debt;
(4) Departmental Offices;
(5) Federal Law Enforcement Training Center;
(6) Financial Management Service;
(7) Internal Revenue Service;
(8) Legal Division;
(9) Office of the Comptroller of the Currency;
(10) Office of the Inspector General;
(11) Office of Thrift Supervision;
(12) United States Customs Service;
(13) United States Mint;
(14) United States Secret Service; and
(15) Any organization designated as a bureau by the Secretary
pursuant to appropriate authority.
(c) Person means an individual, corporation and subsidiaries it
controls, company, association, firm, partnership, society, joint stock
company, or any other organization or institution as specified in 5 CFR
2635.102(k).
(d) Regular employee or employee means an officer or employee of the
Department of the Treasury but does not include a special Government
employee.
(e) Special Government employee means an officer or employee who is
retained, designated, appointed, or employed to perform temporary duties
either on a full-time or intermittent basis, with or without
compensation, for a period not to exceed 130 days during any consecutive
365-day period. See 18 U.S.C. 202(a).
Responsibilities
Sec. 0.104 Designated Agency Ethics Official and Alternate Designated Agency Ethics Official.
The Deputy General Counsel is the Department's Designated Agency
Ethics Official (DAEO). The DAEO is responsible for managing the
Department's ethics program, including coordinating ethics counseling
and interpreting questions of conflicts of interest and other matters
that arise under the Executive Branch-wide Standards and Treasury
Supplemental Standards and Rules. See 5 CFR 2638.203. The Senior Counsel
for Ethics is the Alternate Designated Agency Ethics Official.
Sec. 0.105 Deputy Ethics Official.
The Chief Counsel or Legal Counsel for a bureau, or a designee, is
the Deputy Ethics Official for that bureau. The Legal Counsel for the
Financial Crimes Enforcement Network is the Deputy Ethics Official for
that organization. It is the responsibility of the Deputy Ethics
Official to give authoritative advice and guidance on conflicts of
interest and other matters arising under the Executive Branch-wide
Standards, Treasury Supplemental Standards, and the Rules.
Sec. 0.106 Bureau Heads.
Bureau heads or designees are required to:
(a) Provide all employees with a copy of Executive Order 12674, as
amended by Executive Order 12731, the Executive Branch-wide Standards,
the Treasury Supplemental Standards and the Rules; provide all new
employees with an explanation of the contents and application of the
Executive Branch-wide Standards, Treasury Supplemental Standards and the
Rules; and provide all departing employees with an explanation of the
applicable post-employment restrictions contained in 18 U.S.C. 207 and 5
CFR part 2641 and any other applicable law or regulation.
(b) Provide guidance and assistance to supervisors and employees in
implementing and adhering to the rules and procedures included in the
Executive Branch-wide Standards and Treasury
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Supplemental Standards and Rules; obtain any necessary legal advice or
interpretation from the Designated Agency Ethics Official or a Deputy
Ethics Official; and inform employees as to how and from whom they may
obtain additional clarification or interpretation of the Executive
Branch-wide Standards, Treasury Supplemental Standards, Rules, and any
other relevant law, rule or regulation.
(c) Take appropriate corrective or disciplinary action against an
employee who violates the Executive Branch-wide Standards, Treasury
Supplemental Standards or Rules, or any other applicable law, rule or
regulation, and against a supervisor who fails to carry out his
responsibilities in taking or recommending corrective or disciplinary
action when appropriate against an employee who has committed an
offense.
Sec. 0.107 Employees.
(a) Employees are required to:
(1) Read and follow the rules and procedures contained in the
Executive Branch-wide Standards, Treasury Supplemental Standards, and
Rules;
(2) Request clarification or interpretation from a supervisor or
ethics official if the application of a rule contained in the Executive
Branch-wide Standards, Treasury Supplemental Standards, or Rules is not
clear;
(3) Report to the Inspector General or to the appropriate internal
affairs office of the Bureau of Alcohol, Tobacco and Firearms, Customs
Service, Internal Revenue Service, or Secret Service, any information
indicating that an employee, former employee, contractor, subcontractor,
or potential contractor engaged in criminal conduct or that an employee
or former employee violated the Executive Branch-wide Standards or the
Treasury Supplemental Standards or Rules. Legal Division attorneys
acquiring this type of information during the representation of a bureau
shall report it to the appropriate Chief or Legal Counsel or the Deputy
General Counsel, who shall report such information to the Inspector
General or appropriate internal affairs office; and
(4) Report to the Inspector General information defined in paragraph
(a)(3) of this section relating to foreign intelligence or national
security, as covered in Executive Order 12356. Legal Division attorneys
acquiring this type of information during the representation of a bureau
shall report it to the Deputy General Counsel, who shall report such
information to the Inspector General.
(b) The confidentiality of the source of the information reported to
the Inspector General or the internal affairs office under this section
will be maintained to the extent appropriate under the circumstances.
Subpart B--Rules of Conduct
Sec. 0.201 Political activity.
(a) Employees may:
(1) Take an active part in political management or in political
campaigns to the extent permitted by law (5 U.S.C. 7321-7326); and
(2) Vote as they choose and express their opinions on political
subjects and candidates.
(b) Employees may not use their official authority or influence to
interfere with or affect election results.
(c) Employees may be disqualified from employment for knowingly
supporting or advocating the violent overthrow of our constitutional
form of government.
Note: The Hatch Act Reform Amendments of 1993 significantly reduced
the statutory restrictions on the political activity of most Department
employees. However, career members of the Senior Executive Service and
employees of the Secret Service, the Internal Revenue Service, Office of
Criminal Investigation, the Customs Service, Office of Investigative
Programs, and the Bureau of Alcohol, Tobacco and Firearms, Office of Law
Enforcement, remain subject to significant restrictions on their
political activities.
Sec. 0.202 Strikes.
Employees shall not strike against the Government.
Sec. 0.203 Gifts or gratuities from foreign governments.
(a) The United States Constitution prohibits employees from
accepting gifts, emoluments, offices, or titles from a foreign
government without the consent of the Congress. Congress has consented
to an employee accepting
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and retaining a gift from a foreign government that is of minimal value
and offered as a souvenir or mark of courtesy, unless otherwise
prohibited by bureau regulation (5 U.S.C. 7342). Minimal value is
prescribed in 41 CFR part 101-49 and was set at $225.00 on the date that
the Rules became effective.
(b) All gifts exceeding minimal value, the refusal of which would
likely cause offense or embarrassment or otherwise adversely affect the
foreign relations of the United States, shall be accepted and deposited
with the Department within sixty days of acceptance. If the gift is
travel or expenses for travel taking place entirely outside the United
States, it shall be reported within thirty days (see 5 U.S.C.
7342(c)(1)(B)(ii)).
(c) As used in paragraph (b) of this section, Deposit with the
Department means delivery to the Department Gift Unit or other
depository as authorized by the Treasury Directive on Foreign Gifts
(Treasury Directive 61-04).
(d) All foreign gifts must be reported as prescribed in the Treasury
Directive on Foreign Gifts (Treasury Directive 61-04).
Sec. 0.204 Use of controlled substances and intoxicants.
Employees shall not sell, use or possess controlled substances or
intoxicants in violation of the law while on Department property or
official duty, or use a controlled substance or intoxicant in a manner
that adversely affects their work performance.
Sec. 0.205 Care of documents and data.
(a) Employees shall not conceal, remove, alter, destroy, mutilate or
access documents or data in the custody of the Federal Government
without proper authority.
(b) Employees are required to care for documents according to
Federal law and regulation, and Department procedure (18 U.S.C. 2071, 5
U.S.C. 552, 552a).
(c) The term documents includes, but is not limited to, any writing,
recording, computer tape or disk, blueprint, photograph, or other
physical object on which information is recorded.
Sec. 0.206 Disclosure of information.
Employees shall not disclose official information without proper
authority, pursuant to Department or bureau regulation. Employees
authorized to make disclosures should respond promptly and courteously
to requests from the public for information when permitted to do so by
law (31 CFR 1.9, 1.10, and 1.28(b)).
Sec. 0.207 Cooperation with official inquiries.
Employees shall respond to questions truthfully and under oath when
required, whether orally or in writing, and must provide documents and
other materials concerning matters of official interest when directed to
do so by competent Treasury authority.
Sec. 0.208 Falsification of official records.
Employees shall not intentionally make false, misleading or
ambiguous statements, orally or in writing, in connection with any
matter of official interest. Matters of official interest include among
other things: Transactions with the public, government agencies or
fellow employees; application forms and other forms that serve as a
basis for appointment, reassignment, promotion or other personnel
action; vouchers; leave records and time and attendance records; work
reports of any nature or accounts of any kind; affidavits; entry or
record of any matter relating to or connected with an employee's duties;
and reports of any moneys or securities received, held or paid to, for
or on behalf of the United States.
Sec. 0.209 Use of Government vehicles.
Employees shall not use Government vehicles for unofficial purposes,
including to transport unauthorized passengers. The use of Government
vehicles for transporting employees between their domiciles and places
of employment must be authorized by statute (See, e.g., 31 U.S.C. 1344).
Sec. 0.210 Conduct while on official duty or on Government property.
Employees must adhere to the regulations controlling conduct when
they are on official duty or in or on Government property, including the
Treasury Building, Treasury Annex Building and grounds; the Bureau of
Engraving and Printing buildings and grounds; the
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United States Mint buildings and grounds; the grounds of the Federal Law
Enforcement Training Center; and Treasury-occupied General Services
Administration buildings and grounds (see 31 CFR parts 91, 407, 605,
700).
Sec. 0.211 Soliciting, selling and canvassing.
Employees shall not solicit, make collections, canvass for the sale
of any article, or distribute literature or advertising in any space
occupied by the Department without appropriate authority.
Sec. 0.212 Influencing legislation or petitioning Congress.
(a) Employees shall not use Government time, money, or property to
petition a Member of Congress to favor or oppose any legislation. This
prohibition does not apply to the official handling, through the proper
channels, of matters relating to legislation in which the Department of
the Treasury has an interest.
(b) Employees, individually or collectively, may petition Congress
or Members of Congress or furnish information to either House of
Congress when not using Government time, money or property (5 U.S.C.
7211).
Sec. 0.213 General conduct prejudicial to the Government.
Employees shall not engage in criminal, infamous, dishonest, or
notoriously disgraceful conduct, or any other conduct prejudicial to the
Government.
Sec. 0.214 Nondiscrimination.
(a) Employees shall not discriminate against or harass any other
employee, applicant for employment or person dealing with the Department
on official business on the basis of race, color, religion, national
origin, sex, sexual orientation, age, or disability. Sexual harassment
is a form of sex discrimination and is prohibited by this section.
(b) An employee who engages in discriminatory conduct may be
disciplined under these rules. However, this section does not create any
enforceable legal rights in any person.
Sec. 0.215 Possession of weapons and explosives.
(a) Employees shall not possess firearms, explosives, or other
dangerous or deadly weapons, either openly or concealed, while on
Government property or official duty.
(b) The prohibition in paragraph (a) of this section does not apply
to employees who are required to possess weapons or explosives in the
performance of their official duties.
Sec. 0.216 Privacy Act.
Employees involved in the design, development, operation, or
maintenance of any system of records or in maintaining records subject
to the Privacy Act of 1974, as amended (5 U.S.C. 552a), shall comply
with the conduct regulations delineated in 31 CFR 1.28(b).
Sec. 0.217 Personal financial interests.
(a) Employees may hold the following financial interests without
violating 18 U.S.C. 208(a):
(1) The stocks or bonds of a publicly traded corporation with a
value of $1000 or less; and
(2) The stocks or bonds in the investment portfolio of a diversified
mutual fund in which an employee has invested.
(b) The Department has found that the financial interests listed in
paragraph (a) of this section are too remote and inconsequential to
affect the integrity of an employee's service.
Subpart C--Special Government Employees
Sec. 0.301 Applicability of subpart B.
The rules of conduct contained in subpart B of this part apply to
special Government employees employed with the Treasury Department. The
regulations contained in Sec. 0.201 of subpart B, concerning political
activity, apply to special Government employees only on the days that
they serve the Department. Treasury bureaus are responsible for
informing special Government employees employed with them of the
applicability of bureau specific statutes or regulations.
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Sec. 0.302 Service with other Federal agencies.
A special Government employee serving concurrently in the Department
and in a Federal agency other than the Department is required to inform
the Department and the agency in which he serves of the arrangement so
that appropriate administrative measures may be taken.
Subpart D--Advisers to the Department
Sec. 0.401 Advisers to the Department.
(a) An adviser or advisory committee member includes an individual
who provides advice to the Department as a representative of an outside
group and is not an employee or special Government employee of the
Department. Questions concerning whether an individual serves the
Department in the capacity of an adviser, employee, or special
Government employee shall be addressed to the Designated Agency Ethics
Official or a Deputy Ethics Official.
(b) Advisers or advisory committee members are not required to
follow the Rules and are not generally required by the Department to
file financial disclosure statements; nevertheless, they should be
guided by the regulations in this part covering such issues as public
disclosure of official information (Sec. 0.206), conduct (Sec. 0.211 and
Sec. 0.213), and gifts or gratuities from Foreign governments
(Sec. 0.203).
PART 1--DISCLOSURE OF RECORDS--Table of Contents
Subpart A--Freedom of Information Act
Sec.
1.1 General.
1.2 Information made available.
1.3 Publication in the Federal Register.
1.4 Public inspection and copying.
1.5 Specific requests for other records.
1.6 Business information.
1.7 Fees for services.
Appendices to Subpart A
Appendix A--Departmental Offices
Appendix B--Internal Revenue Service
Appendix C--United States Customs Service
Appendix D--United States Secret Service
Appendix E--Bureau of Alcohol, Tobacco and Firearms
Appendix F--Bureau of Engraving and Printing
Appendix G--Financial Management Service
Appendix H--United States Mint
Appendix I--Bureau of the Public Debt
Appendix J--Office of the Comptroller of the Currency
Appendix K--United States Savings Bonds Division
Appendix L--Federal Law Enforcement Training Center
Appendix M--Office of Thrift Supervision
Subpart B--Other Disclosure Provisions
1.8 Scope.
1.9 Records not to be otherwise withdrawn or disclosed.
1.10 Oral information.
1.11 Testimony or the production of records in a court or other
proceeding.
1.12 Regulations not applicable to official request.
Subpart C--Privacy Act
1.20 Purpose and scope of regulations.
1.21 Definitions.
1.22 Requirements relating to systems of records.
1.23 Publication in the Federal Register--Notices of systems of
records, general exemptions, specific exemptions, review of
all systems.
1.24 Disclosure of records to person other than the individual to whom
they pertain.
1.25 Accounting of disclosures.
1.26 Procedures for notification and access to records pertaining to
individuals--format and fees for request for access.
1.27 Procedures for amendment of records pertaining to individuals--
format, agency review and appeal from initial adverse agency
determination.
1.28 Training, rules of conduct, penalties for non-compliance.
1.29 Records transferred to Federal Records Center or National Archives
of the United States.
1.30 Application to system of records maintained by Government
contractors.
1.31 Sale or rental of mailing lists.
1.32 Use and disclosure of social security numbers.
1.34 Guardianship.
1.35 Information forms.
1.36 Systems exempt in whole or in part from provisions of 5 U.S.C.
552a and this part.
Appendices to Subpart C
Appendix A--Departmental Offices
Appendix B--Internal Revenue Service
Appendix C--United States Customs Service
[[Page 11]]
Appendix D--United States Secret Service
Appendix E--Bureau of Alcohol, Tobacco and Firearms
Appendix F--Bureau of Engraving and Printing
Appendix G--Financial Management Service
Appendix H--United States Mint
Appendix I--Bureau of the Public Debt
Appendix J--Office of the Comptroller of the Currency
Appendix K--U.S. Savings Bonds Division
Appendix L--Federal Law Enforcement Training Center
Appendix M--Office of Thrift Supervision
Authority: 5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued
under 5 U.S.C. 552, as amended. Subpart C also issued under 5 U.S.C.
552a.
Source: 52 FR 26305, July 14, 1987, unless otherwise noted.
Subpart A--Freedom of Information Act
Sec. 1.1 General.
(a) General. This subpart contains the regulations of the Department
of the Treasury implementing the Freedom of Information Act (``FOIA''),
5 U.S.C. 552. Information customarily furnished to the public in the
regular course of the performance of official duties may continue to be
furnished to the public without complying with this subpart, provided
that the furnishing of such information would not violate the Privacy
Act of 1974, 5 U.S.C. 552a, and would not be inconsistent with other
subparts of this part. To the extent permitted by other laws, the
Department will also consider making available records which it is
permitted to withhold under the FOIA if it determines that such
disclosures would be in the public interest.
(b) As used in this subpart, the following terms shall have the
following meanings:
(1) Appeal means the appeal by a requester of an adverse
determination of the request, as described in 5 U.S.C. 552(a)(6)(A)(ii).
(2) Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C.
552(e).
(3) Component means each separate bureau or office of the Department
of the Treasury.
(4) Request means any request for records made pursuant to 5 U.S.C.
552(a)(3).
(5) Requester means any person who makes a request to a component.
(6) Business information means trade secrets or other commercial or
financial information.
(7) Business submitter means any commercial entity which provides
business information to the Department of the Treasury or its components
and which has a proprietary interest in the information.
(c) Components of the Department of the Treasury shall comply with
the time limits set forth in the FOIA for responding to and processing
requests and appeals, unless there are exceptional circumstances within
the meaning of 5 U.S.C. 552(a)(6)(C). A component shall notify a
requester whenever the component is unable to respond to or process the
request or appeal within the time limits established by the FOIA.
Components shall respond to and process requests and appeals in their
approximate order of receipt, to the extent consistent with sound
administrative practice.
(d) Purpose and scope of regulations. These regulations apply to all
components of the Department of the Treasury. Any reference in this
subpart to the Department or its officials, employees, or records shall
be deemed to refer also to the components or their officials, employees,
or records. In order that interested parties may more readily find them,
the components of the Department are hereby authorized to reprint these
regulations in their entirety (less any appendices not applicable to the
unit in question) in those titles of the Code of Federal Regulations
which normally contain regulations applicable to each component. In
connection with such republication, components may supplement and
implement these regulations with materials applicable only to the
component in question, provided such additional material is not
inconsistent with this part. In the event of any actual or apparent
inconsistency, these Departmental regulations should govern. Persons
interested in the records of a particular component should, therefore,
also consult the Code of Federal Regulations for
[[Page 12]]
any rules or regulations promulgated specifically with respect to that
component. (See Appendices in this subpart for cross references.) The
head of each component is hereby also authorized to substitute the
officials designated and change the addresses specified in the appendix
to this subpart applicable to the component. The components of the
Department of the Treasury for the purposes of this part are:
(1) The Departmental Offices, which include the offices of:
(i) The Secretary of the Treasury, including immediate staff;
(ii) The Deputy Secretary of the Treasury, including immediate
staff;
(iii) The Under Secretary of the Treasury for Finance, including
immediate staff;
(iv) The Fiscal Assistant Secretary, including immediate staff;
(v) The Assistant Secretary of the Treasury for Ecnomic Policy and
all other offices reporting to such official, including immediate staff;
(vi) The General Counsel and also the Legal Division, except legal
counsel to the components listed in paragraphs (d)(1)(ix) and (2)
through (12) of this section;
(vii) The Assistant Secretary of the Treasury for International
Affairs and all offices reporting to such official, including immediate
staff;
(viii) The Treasuer of the United States, including immediate staff;
(ix) The Assistant Secretary of the Treasury for Tax policy,
including immediate staff and all offices reporting to such official;
(x) The Assistant Secretary of the Treasury for Management, and all
offices reporting to such official, including immediate staff.
(xi) The Assistant Secretary of the Treasury for Domestic Finance
and all offices reporting to such official, including immediate staff;
(xii) The Assistant Secretary of the Treasury for Legislative
Affairs, including immediate staff;
(xiii) The Assistant Secretary of the Treasury for Public Affairs
and Public Liaison, including immediate staff;
(xiv) The Assistant Secretary of the Treasury for Enforcement and
all offices reporting to such official, including immediate staff;
(xv) The Special Assistant to the Secretary (National Security),
including immediate staff;
(xvi) The Inspector General and all offices reporting to such
official, including immediate office.
(2) The Bureau of Alcohol, Tobacco and Firearms;
(3) The Office of the Comptroller of the Currency;
(4) The United States Customs Service;
(5) The Bureau of Engraving and Printing;
(6) The Federal Law Enforcement Training Center;
(7) The Financial Management Service;
(8) The Internal Revenue Service;
(9) The United States Mint;
(10) The Bureau of the Public Debt;
(11) The United States Savings Bonds Division;
(12) The United States Secret Service;
(13) The Office of Thrift Supervision.
For purposes of this subpart, the office of legal counsel for the
components listed in paragraphs (d), (2), (3), (4), (5), (7), (8), (9),
(10), and (12) of this section are to be considered a part of their
respective components. Any office, which is now in existence or may
hereafter be established, which is not specifically listed or known to
be a component of any of those listed above, shall be deemed a part of
the Departmental Offices for the purpose of making requests for records
under these regulations.
[52 FR 26305, July 14, 1987, as amended at 60 FR 31632, June 16, 1995]
Sec. 1.2 Information made available.
(a) General. Section 552 of Title 5 of the United States Code
provides for access to information and records developed or maintained
by Federal agencies. Generally, this section divides agency information
into three major categories and provides methods by which each category
is to be made available to the public. The three major categories, for
which the disclosure requirements of the components of the Department of
the Treasury are set forth in this subpart, are as follows:
[[Page 13]]
(1) Information required to be published in the Federal Register
(see Sec. 1.3 of this part);
(2) Information required to be made available for public inspection
and copying or, in the alternative, to be published and offered for sale
(see Sec. 1.4 of this part); and
(3) Information required to be made available to any member of the
public upon specific request (see Sec. 1.5 of this part). The provisions
of section 552 are intended to assure the right of the public to
information.
(b) Subject only to the exemptions set forth in Sec. 1.2(c), the
public generally or any member of the public shall be afforded access to
information or records in the possession of any component of the
Department of the Treasury. Such access shall be governed by the
regulations in this Subpart A and any regulations of a component
implementing or supplementing them.
(c) Exemptions--(1) In general. Under 5 U.S.C. 552(b), the
disclosure requirements of section 552(a) do not apply to certain
matters which are:
(i)(A) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of the national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order (See 31 CFR part 2);
(ii) Related solely to the internal personnel rules and practices of
an agency;
(iii) Specifically exempted from disclosure by statute (other, than
5 U.S.C. 552(b)): Provided, That such statute (A) requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld;
(iv) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(v) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(vi) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(vii) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information (A) could reasonably be expected to interfere
with enforcement proceedings (see Sec. 1.2(c)(2); (B) would deprive a
person of a right to a fair trial or an impartial adjudication; (C)
could reasonably be expected to constitute an unwarranted invasion of
personal privacy; (D) could reasonably be expected to disclose the
identity of a confidential source including a State, local, or foreign
agency or authority or any private institution which furnished
information on a confidential basis, and, in the case of a record or
information compiled by criminal law enforcement authority in the course
of a criminal investigation or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source; (E) would disclose techniques and procedures for
law enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the
law; or (F) could reasonably be expected to endanger the life or
physical safety of any individual.
(viii) Contained in or related to examination, operating or
condition reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(ix) Geological and geophysical information and data, including
maps, concerning wells.
(2)(i) Whenever a request is made which involves access to records
described in Sec. 1.2(c)(1)(vii)(A), and--
(A) The investigation or proceeding involves a possible violation of
criminal law; and
(B) There is a reason to believe that the subject of the
investigation or proceeding is not aware of its pendency, and disclosure
of the existence of the records could reasonably be expected to
interfere with enforcement proceedings, the agency may, during only such
time as that circumstance continues, treat the records as not subject to
the requirements of this section.
[[Page 14]]
(ii) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier are
requested by a third party according to the informant's name or personal
identifier, the agency may treat the records as not subject to the
requirements of this section unless the informant's status as an
informant has been officially confirmed.
(iii) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to foreign
intelligence or counterintelligence, or international terrorism, and the
existence of the records is classified information as provided in
paragraph (b)(1) of this section, the Bureau may, as long as the
existence of the records remains classified information, treat the
records as not subject to the requirements of this section.
(3) The exemptions set forth in paragraph (c)(1) of this section
apply to each of the three categories of information set forth in
paragraph (a) of this section.
(4) Segregable portions of records. Portions of some records may be
denied leaving the remaining reasonably segregable portions which must
be released to the requester. These portions are released only when the
meaning is not distorted by deletion of the denied portions and when it
reasonably can be assumed that a skillful and knowledgeable person could
not reconstruct the deleted information. When a record is denied in
whole, the response advising the requester of that determination shall
specifically state that it is not reasonable to segregate portions of
the record for release.
(5) Application of exemptions. Even though an exemption described in
paragraph (c)(1) of this section may be fully applicable to a matter in
a particular case, a component of the Department of the Treasury may, if
not precluded by law, elect under the circumstances of that case not to
apply the exemption. The fact that the exemption is not applied by a
component in that particular case will have no precedential significance
in other cases, but is merely an indication that, in the particular case
involved, the component finds no compelling necessity for applying the
exemption.
Sec. 1.3 Publication in the Federal Register.
(a) Requirement. Subject to the application of the exemptions
described in Sec. 1.2(c) and subject to the limitations provided in
paragraph (b) of this section, each component of the Department of the
Treasury is required, in conformance with 5 U.S.C. 552(a)(1), to
separately state, publish and maintain current in the Federal Register
for the guidance of the public the following information with respect to
that component:
(1) Descriptions of its central and field organization and the
established places at which, the persons from whom, and the methods
whereby, the public may obtain information, make submittals or requests,
or obtain decisions;
(2) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by the component; and
(5) Each amendment, revision, or repeal of matters referred to in
paragraphs (a)(1) through (4) of this section.
(b) Limitations--(1) Incorporation by reference in the Federal
Register. Matter reasonably available to the class of persons affected
thereby, whether in a private or public publication, will be deemed
published in the Federal Register for purposes of paragraph (a) of this
section when it is incorporated by reference therein with the approval
of the Director of the Federal Register. The matter which is
incorporated by reference must be set forth in the private or public
participation substantially in its entirety and not merely summarized or
printed as a synopsis. Matter, the location and
[[Page 15]]
scope of which are familiar to only a few persons having a special
working knowledge of the activities of the Department of the Treasury,
may not be incorporated in the Federal Register by reference. Matter may
be incorporated by reference only pursuant to the provisions of 5 U.S.C.
552(a)(1) and 1 CFR part 20.
(2) Effect of failure to publish. Except to the extent that a person
has actual and timely notice of the terms of any matter referred to in
paragrph (a) of this section which is required to be published in the
Federal Register, such person is not required in any matter to resort
to, or be adversely affected by, such matter if it is not so published
or is not incorporated by reference therein pursuant to paragraph (b)(1)
of this section. Thus, for example, any such matter which imposes an
obligation and which is not so published or incorporated by reference
will not adversely change or affect a person's rights.
Sec. 1.4 Public inspection and copying.
(a) In general. Subject to the application of the exemptions
described in Sec. 1.2(c), each component of the Department of the
Treasury is required in conformance with 5 U.S.C. 552(a)(2), to make
available for public inspection and copying, or, in the alternative, to
promptly publish and offer for sale the following information with
respect to the component:
(1) Final opinions, including concurring and dissenting opinions,
and orders, if such opinions and orders are made in the adjudication of
cases;
(2) Those statements of policy and interpretation which have been
adopted by the component but are not published in the Federal Register;
and
(3) Its administrative staff manuals and instructions to staff that
affect a member of the public.
(b) Indexes. Each component of the Department of the Treasury is
hereby also required in conformance with 5 U.S.C. 552(a)(2), to maintain
and make available for public inspection and copying current indexes
identifying any matter described in paragraphs (a) (1) through (3) of
this section which is issued, adopted, or promulgated after July 4,
1967, and which is required to be made available for public inspection
or published. In addition, each component shall promptly publish,
quarterly or more frequently, and distribute (by sale or otherwise)
copies of each index or supplement unless the head of each component (or
a delegate) determines by order published in the Federal Register that
the publication would be unnecessary and impractical; in which case the
component shall nonetheless provide copies of the index on request at a
cost not to exceed the direct cost of duplication.
(c) Effect of failure to publish or make available. No matter,
described in paragraphs (a) (1) through (3) of this section, which is
required by this paragraph to be made available for public inspection or
published, may be relied upon, used, or cited as precedent by the
component against a party, other than an agency, unless that party has
actual and timely notice of the terms of such matter or unless the
matter has been indexed and either made available for inspection or
published, as provided by this paragraph. This paragraph may be
interpreted to apply only to matters which have precedential
significance. It does not apply to matters which have been made
available pursuant to Sec. 1.3.
(d) Deletion of identifying details. To prevent a clearly
unwarranted invasion of personal privacy, a component of the Department
of the Treasury may, in accordance with 5 U.S.C. 552(a)(2), delete
identifying details contained in any matter described in paragraphs (a)
(1) through (3) of this section before making such matter available for
inspection or publishing it. However, in every case where identifying
details are so deleted, the exemption justifying the deletion will be
identified in an attachment to the document from which the identifying
details have been deleted.
(e) Public reading rooms. Each component of the Department of the
Treasury shall make available for inspection and copying, in a reading
room or otherwise, the matters described in paragraphs (a) (1) through
(3) of this section which are required by such paragraph (a) to be made
available for public inspection or published in the current indexes such
matters. Facilities shall be
[[Page 16]]
provided whereby a person may inspect the material and obtain copies of
that which is shelved. Fees shall not be charged for access to
materials, but fees are to be charged in accordance with Sec. 1.7 for
copies of material provided to the person. (See the appendices to this
subpart for the location of established reading rooms of components of
the Department of the Treasury.)
Sec. 1.5 Specific requests for other records.
(a) In general. Except for records made available under Secs. 1.3
and 1.4, above, but subject to the application of the exemptions
described in Sec. 1.2(c) above, each component of the Department of the
Treasury shall promptly make the requested records available to any
person in conformance with 5 U.S.C. 552(a) (3). The request must be for
reasonably described records and conform in every respect with the rules
and procedures of this subpart A, particularly this section, Sec. 1.7
and the applicable appendix to this subpart. Any request or any appeal
from the initial denial of a request that does not comply with the
foregoing requirements and those set forth elsewhere in subpart A will
not be considered subject to the time constrains of paragraphs (g), (h),
and (i) of this section, unless and until the request is amended to
comply. Components shall promptly advise the requester in what respect
the request or appeal is deficient so that it may be resubmitted or
amended for consideration in accordance with this subpart. When the
request conforms with the requirements of this subpart, components shall
make every reasonable effort to comply with the request within the time
constraints. This subpart applies only to existing records in the
possession or control of the component. There is no requirement that
records be created or data processed in a format other than required for
governmental purposes in order to comply with a request for records.
(b) Requests for records not in control of component. (1) When the
record requested is in the possession or under the control of a
component of the Department other than the office to whom the request is
addressed, the request for the record shall immediately be transferred
to the appropriate component and the requester notified to that effect.
This referral shall not be considered a denial of access within the
meaning of these regulations. The component of the Department to whom
this referral is made shall treat this request as a new request
addressed to it and the time limits for response set forth by paragraph
(g)(1) of this section shall begin when the referral is received by the
designated office or officer of the component. Where the request is for
a record which is not in the possession or control of any component of
the Department of the Treasury, the requester shall be so advised and
the request shall be returned to the requester.
(2) When an unclassified record created by another agency or another
Treasury component is in the possession of a component of the Department
of the Treasury, and that record is requested under the FOIA, the
responsible Treasury official shall refer the record to the agency or
Treasury component originating the record for a direct response to the
requester. The requester shall be informed of the referral. However,
where it is determined that the record is exempt from disclosure under
the provisions of the FOIA (5 U.S.C. 552) and will be withheld from
disclosure, the referral need not be made. In such an instance, the
component of the Department that maintains the records shall inform the
requester of the applicable appeal rights and shall notify the agency or
component that originated the record(s) of the request and the
determination not to release the record(s). If there is any subsequent
change in this initial determination, the documents shall be referred to
the originating agency or component for response to the requester.
(3) When a classified record originated by another agency or another
component of the Department is in the possession of a component of the
Department of the Treasury, and a FOIA request for that record is
received, the request shall be referred to the originating Department,
agency, or component of the Department for a direct response. This is
not a denial of a FOIA
[[Page 17]]
request; thus no appeal rights accrue to the requester.
(4) When a FOIA request is received for a record created by a
component of the Department that includes information originated by
another component of the Department or another agency, the record shall
be referred to the originating agency or component of the Department for
review, coordination, and concurrence. The Department component shall
not release any records without prior consultation with the other
component or agency.
(5) In certain instances and at the discretion of the Departmental
Offices, requests having impact on two or more components of the
Department shall be coordinated by the Departmental Offices.
(c) Form of request. In order to be subject to the provisions of
this section, the following must be satisfied.
(1) The request for records shall be made in writing, signed by the
person making the request, and state that it is made pursuant to the
Freedom of Information Act, 5 U.S.C. 552, or these regulations. A
request for records shall also state how the documents released will be
used (See Sec. 1.7(a)). The Departmental components may determine from
the use specified in the request that the requester is a commercial
user. A commercial use request refers to a request from or on behalf of
one who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person on
whose behalf the request is made. Moreover, where a component of the
Department has reasonable cause to doubt the use to which a requester
will put the records sought, or where that use is not clear from the
request itself, components should seek additional clarification before
assigning the request to a specific category.
(2) The request shall identify whether the requester is an
educational institution, non-commercial scientific institution, or
representative of the news media subject to the fee provisions described
in Sec. 1.7.
(i) These categories of requesters are defined as follows:
(A) Educational institution. This refers to a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
(B) Non-commercial scientific institution. This refers to an
institution that is not operated on a ``commercial'' basis as that term
is referenced in paragraph (c)(1)(i) of this section, and which is
operated solely for the purpose of conducting scientific research the
results of which are not intended to promote any particular product or
industry.
(C) Representative of the news media. This refers to any person
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. These examples are
not intended to be all-inclusive. Moreover, as traditional methods of
news delivery evolve (e.g., electronic dissemination of newspapers
through telecommunications services), such alternative media would be
included in this category. In the case of ``freelance'' journalists,
they may be regarded as working for a news organization if they can
demonstrate a solid basis for expecting publication through that
organization, even though not actually employed by it. A publication
contract would be the clearest proof, but components may also look to
the past publication record of a requester in making this determination.
(3) The request must be addressed to the component that maintains
the record. The request should be sent to the component at its proper
address. Both the envelope and the request itself should be clearly
marked ``Freedom of Information Act Request,'' and
[[Page 18]]
addressed to the appropriate component. See the appendices to this
subpart for the office or officer to which requests shall be addressed
for each component. A requester in need of guidance in defining a
request or determining the proper component to which a request should be
sent may write to Disclosure Branch, Department of the Treasury, 1500
Pennsylvania Avenue, NW, Washington, DC 20220. Requests for certain
historical records must be directed to National Archives in accordance
with its regulations;
(4) The request must reasonably describe the records in accordance
with paragraph (d) of this section;
(5) The request must set forth the address where the person making
the request wants to be notified about whether or not the request will
be granted;
(6) The request must state whether the requester wishes to inspect
the records or desires to have a copy made and furnished without first
inspecting them; and
(7) The request must state the firm agreement of the requester to
pay the fees for duplication, search, and/or review as may ultimately be
determined in accordance with Sec. 1.7, or request that such fees be
reduced or waived and state the justification for such request (see
Sec. 1.7(d)). The requester shall be promptly advised of the estimate of
fees due and asked to agree to pay this amount, when:
(i) The initial request does not state a firm agreement to pay fees,
but instead places an upper limit on the amount the requester agrees to
pay, and this upper limit exceeds the limitations in Sec. 1.7(a) (for
example, the first 100 pages of reproduction and the first two hours of
search time are furnished without charge, etc.), and is likely to be
lower than the fees ultimately estimated to be due; or
(ii) The request is determined to be for a commercial use; or
(iii) The requester asks for an estimate of the fees to be charged;
or
(iv) When the estimated fee is below $250 but above the upper level
set by the requester; or
(v) Whenever the estimate is above $250 whether or not an upper
level is set.
Where the initial request includes a request for reduction or waiver of
fees, the responsible official shall determine whether to grant the
request for reduction or waiver in accordance with Sec. 1.7(d) of this
part and notify the requester of this decision. If the decision results
in the requester being liable for all or part of the fees normally due,
ask the requester to agree to pay the amount so determined. The
requirements of this paragraph (c) will not be considered met until the
requester has explicitly agreed to pay the fees applicable to the
request for records, if any, or has made payment in advance of the fees
estimated to be due, see Sec. 1.7(f).
(d) Reasonable description of records. (1) The request for records
must describe the records in reasonably sufficient detail to enable the
Department of the Treasury employees who are familiar with the subject
area of the request to locate the records without placing an
unreasonable burden upon the component. Whenever possible, a request
should include specific information about each record sought, such as
the date, title or name, author, recipients, and subject matter of the
record. In addition, if the request seeks records pertaining to pending
litigation, the request should indicate the title of the case, the court
in which the case was filed, and the nature of the case. If a component
determines that the request does not reasonably describe the records
sought, the requester shall be given an opportunity to refine the
request. Such opportunity may, where desirable, involve a conference
with knowledgeable Department of the Treasury personnel. The reasonable
description requirement shall not be used by officers or employees of
the Department of the Treasury as a device for improperly withholding
records from the public.
(2) The Department of the Treasury will make every reasonable effort
to comply fully with all requests for access to records subject only to
any applicable exemption set forth in Sec. 1.2(c). However, in any
situation in which it is determined that a request for voluminous
records would unduly burden and interfere with the operations of a
component, the person making the request will be asked to be more
specific
[[Page 19]]
and to narrow the request. In addition, the person making the request
will also be asked to agree on an orderly procedure for producing the
requested records in order to satisfy the request without adversely
affecting agency operations.
(e) Date of receipt of request. A request for records shall be
considered to have been received for purposes of this subpart on the
later of the dates on which:
(1) The requirements of paragraph (c) of this section have been
satisfied, and, where applicable,
(2) The requester has agreed in writing, to pay the fees for search,
duplication, and review determined due in accordance with Sec. 1.7, or
(3) The fees have been waived in accordance with Sec. 1.7(d), or
(4) Payment in advance has been received from the requester, when
required in accordance with Sec. 1.7(f). Requests for records, including
prepayment, shall be promptly stamped with the date of receipt by the
office prescribed in the appropriate appendix. A final notification of
waiver of fees will be stamped with the date of transmittal by the
appropriate office. For purposes of this subpart, the date of receipt of
the request is the lastest of these stamped dates. As soon as the date
of receipt has been established, the requester shall be so informed. At
this time the requester will also be advised when to expect a response
within the time limits specified in paragraph (g)(1) of this section,
unless extended as provided in paragraph (i)(1) of this section.
(f) Search for record requested. When a request is received,
Department of the Treasury employees will search to identify and locate
the requested records. Where a request includes documents stored at the
Federal Records Center, the Department will make reasonable efforts to
comply with the time constraints of the Act; however, delays in
processing these requests are common and will usually require additional
time. Searches for records maintained in computerized form include
services functionally analogous to searches for records which are
maintained in a conventional form. A component of the Department of the
Treasury is not required under 5 U.S.C. 552 to tabulate or compile
information for the purpose of creating a record.
(g) Initial determination--(1) In general. The officers designated
in the appendices to this part will make initial determinations either
to grant or to deny in whole or in part requests for records. These
determinations will be made within 10 days excepting Saturdays, Sundays,
and legal public holidays) after the date of receipt of the request, as
determined in accordance with paragraph (e) of this section, unless the
designated officer invokes an extension pursuant to paragraph (i)(1) of
this section or the requester otherwise agrees to an extension of the
10-day time limitation. The requester will be notified immediately of
this determination.
(2) Granting of request. If the request is granted, and if the
person making the request wants a copy of the requested records, a copy
of these records shall be mailed to the requester by the component
together with a statement of the fees for search and duplication, either
at the time of the determination or shortly thereafter. In certain
unusual circumstances, the Department may elect to coordinate the
request involving two or more components; in such a case only one reply
will be prepared. In the case of a request for inspection, the requester
shall be notified in writing of the determination, when and where the
requested records may be inspected, and of the fees involved in
complying with the request. The records shall then promptly be made
available for inspection at the time and place stated in a manner that
will not interfere with their use by the Department of the Treasury and
will not exclude other persons from making inspections. In addition,
reasonable limitations may be placed on the number of records which may
be inspected by a person on any given date. The procedure for inspection
shall not unreasonably disrupt the operations of the component. The
person making the request will not be allowed to remove the records from
the room where inspection is made. If, after making inspection, the
person making the request desires copies of all or a portion of the
requested records, copies will be furnished upon payment of the
established
[[Page 20]]
fees prescribed by Sec. 1.7. Fees may be charged for search time as
stated in Sec. 1.7, and for copies made available for inspection.
(3) Denial of request. If it is determined that the request for
records should be denied (whether in whole or in part or subject to
conditions or exceptions), the person making the request will be so
notified by mail. The letter of notification shall specify the city or
other location where the requested records are situated (if known),
contain a statement of the applicable exemptions relied on in not
granting the request, set forth the name and title or position of the
responsible official, advise the person making the request of the right
to administrative appeal in accordance with paragraph (h) of this
section, and specify the official or office to which such appeal shall
be submitted. Fees may be charged for search time as prescribed in
Sec. 1.7, even if the time spent searching does not yield any records,
or if records are denied.
(4) Inability to locate records within time limits. Where the
records requested cannot be located and evaluated within the initial 10-
day period or any extension of that period as specified in paragraph
(i)(1) of this section, the search for the records shall continue. The
requester shall be notified of this delay and asked to agree to a
voluntary extension of time in which to locate the records. Agreeing to
this voluntary extension of time will not be considered a waiver of the
requester's right to appeal in the event of the Department's failure to
comply with the time extension granted. The requester shall be advised
that this notification may be considered a denial of access within the
meaning of paragraph (g)(3) of this section, and be provided with the
address to which an administrative appeal may be addressed.
(h) Administrative appeal. (1) When a request for access to records
has been denied in whole or in part, or when there has been an adverse
determination of the requester's category as described in Sec. 1.5(c)(1)
and provided in Sec. 1.7(d)(4), the requester may appeal the denial at
any time within 35 days of receipt of a notice denying the request or
the date of the letter transmitting the last records released, whichever
is later. The requester may also appeal when a component fails to
respond to a request within the time limits set forth in the FOIA. The
administrative appeal may be submitted to the official specified in the
appropriate appendix to this subpart whose title and address should also
have been included in the initial determination to deny access to the
records. An appeal that is improperly addressed will be considered not
to have been received by the Department until the office specified in
the appropriate appendix receives the appeal. The appeal shall--
(i) Be made in writing and signed by the requester;
(ii) Be addressed to and mailed or hand delivered, within 35 days of
the date of the initial determination, to the office or officer
specified in the appropriate appendix to this subpart and also in the
initial determination. (See the appendices to this subpart for the
address to which appeals made by mail should be addressed.);
(iii) Reasonably describe, in accordance with paragraph (d) of this
section, the records requested from the denial of access to which an
appeal is being taken;
(iv) Set forth the address where the requester desires to be
notified of the determination on appeal;
(v) Specify the date of the initial request and date of the letter
denying the initial request; and
(vi) Petition such official to grant the request for records and
state any supporting arguments.
(2) Appeals shall be promptly stamped with the date of their receipt
by the office to which addressed. This stamped date will be considered
to be the date of receipt for all purposes of this subpart. The receipt
of the appeal shall be acknowledged by the responsible official and the
requester advised of the date the appeal was received and the expected
date of response. The determination to affirm the initial denial (in
whole or in part) or to grant the request for records shall be made and
notification of the determination mailed within 20 days (exclusive of
Saturdays, Sundays, and legal public holidays) after the date of receipt
of the appeal, unless extended pursuant to paragraph
[[Page 21]]
(i)(1) of this section. If it is determined that the appeal from the
initial denial is to be denied (in whole or in part)--
(i) The requester shall be notified in writing of the denial;
(ii) The reasons for the denial, including the FOIA exemptions
relied upon;
(iii) The name and title or position of the official responsible for
the denial on appeal;
(iv) A statement that judicial review of the denial is available in
the United States District Court for the judicial district in which the
requester resides or has a principal place of business, the judicial
district in which the requested records are located, or the District of
Columbia in accordance with 5 U.S.C. 552(a)(4)(B).
If the denial of the request is reversed on appeal, the requester shall
be so notified and the request shall be processed promptly in accordance
with the decision on appeal.
(3) If a determination cannot be made within the 20-day period (or
any extension pursuant to paragraph (i)(1) of this section) the
requester shall be promptly notified in writing that the determination
will be made as soon as practicable but that the requester is
nonetheless entitled to commence an action in a district court as
provided in paragraph (k) of this section. However, the requester may
also be invited, in the alternative, to agree to a voluntary extension
of the 20 day appeal period. This voluntary extension shall not
constitute a waiver of the right of the requester ultimately to commence
an action in a United States district court.
(i) Time extensions--(1) 10-day extension. In unusual circumstances,
the time limitations specified in paragraphs (g) and (h) of this section
may be extended by written notice from the official charged with the
duty of making the determination to the person making the request or
appeal setting forth the reasons for this extension and the date on
which the determination is expected to be sent. Any extension or
extensions of time shall not cumulatively total more than 10 additional
working days. (For example, if an extension pursuant to this
subparagraph is invoked in connection with an initial determination, any
unused days of the extension period may be invoked in connection with
the determination on administrative appeal by written notice from the
official who is to make the appellate determination. If no extension is
sought for the initial determination, an extension of 10 days may be
added to the ordinary 20-day period for appellate review.) As used in
this paragraph, ``unusual circumstances'' means, but only to the extent
reasonably necessary to the proper processing of the particular request,
the following:
(i) The need to search for and collect the requested records from
field facilities or other establishments in buildings other than the
building in which the office of the official to whom the request is made
is located;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request, or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components within
the Department of Treasury or within a component (other than the legal
staff or the component concerned with public affairs) having substantial
subject-matter interest. Consultations with personnel of the Department
of Justice concerned with requests for records under 5 U.S.C. 552 do not
constitute a basis for an extension under this subdivision.
(2) Extension by judicial review. If a component of the Department
of the Treasury fails to comply with the time limitations specified in
paragraph (g) or (h) of this section and the person making the request
initiates a suit in accordance with paragraph (k) of this section, the
court in which the suit was initiated may retain jurisdiction and allow
the component additional time to review its records, provided that the
component demonstrates the existence of exceptional circumstances and
the exercise of due diligence in responding to the request.
(j) Failure to comply. If a component of the Department of the
Treasury fails to comply with the time specified in paragraph (g), (h),
or (i) of this section,
[[Page 22]]
any person making a request for records shall be considered to have
exhausted adminsitrative remedies with respect to the request.
Accordingly, the person making the request may initiate suit as set
forth in paragraph (k) of this section.
(k) Judicial review. If a request for records is denied upon appeal
pursuant to paragraph (h) of this section, or if no determination is
made within the 10-day or 20-day periods specified in paragraphs (g) and
(h) of this section, respectively, together with any extension pursuant
to paragraph (i)(1) of this section or by agreement of the requester,
the person making the request may commence an action in a United States
district court in the district in which he resides, in which his
principal place of business is located, in which the records are
situated, or in the District of Columbia, pursuant to 5 U.S.C. 552
(a)(4). Service of process in such an action shall be in accordance with
the Federal Rules of Civil Procedure (28 U.S.C. App.) applicable to
actions against an agency of the United States. Delivery of process
shall be directed to the official specified in the appropriate appendix
to this subpart as the official to receive such process.
(l) Preservation of records. Each component shall preserve all
correspondence relating to the requests it receives under this subpart,
and all records processed pursuant to such requests, until such time as
the destruction of such correspondence and records is authorized
pursuant to Title 44 of the United States Code. Under no circumstances
shall records be destroyed while they are the subject of a pending
request, appeal, or lawsuit under the FOIA.
(m) Processing of requests that are not properly addressed. A
request that is not properly addressed as specified in the appropriate
appendix to this subpart shall be forwarded to the Departmental
Disclosure Office, who will forward the request to the appropriate
component or components for processing. A request not addressed to the
appropriate component will be considered not to have been received for
purposes of paragraph (e) of this section until the request has been
received by the appropriate component. A component receiving an
improperly addressed request forwarded by the FOIA/PA Section shall
notify the requester of the date on which it received the request.
Sec. 1.6 Business information.
(a) In general. Business information provided to the Department of
the Treasury by a business submitter shall not be disclosed pursuant to
a Freedom of Information Act request except in accordance with this
section.
(b) Notice to business submitters. A component shall provide a
business submitter with prompt written notice of a receipt of a request
encompassing its business information whenever required in accordance
with paragraph (c) of this section, and except as is provided in
paragraph (g) of this section. Such written notice shall either describe
the exact nature of the business information requested or provide copies
of the records or portions of records containing the business
information.
(c) When notice is required. (1) For business information submitted
to the Department prior to July 14, 1987, the component shall provide a
business submitter with notice of receipt of a request whenever:
(i) The information is less than ten years old;
(ii) The information is subject to prior express commitment of
confidentiality given by the component to the business submitter, or
(iii) The component has reason to believe that disclosure of the
information may result in commercial or financial injury to the business
submitter.
(2) For business information submitted to the Department on or after
July 14, 1987, the component shall provide a business submitter with
notice of receipt of a request whenever:
(i) The business submitter has in good faith designated the
information as commercially or financially sensitive information, or
(ii) The component has reason to believe that disclosure of the
information may result in commercial or financial injury to the business
submitter.
(3) Notice of a request for business information falling within
paragraph (c)(1) of this section shall be required for a period of not
more than ten years after the date of submission unless the
[[Page 23]]
business submitter requests, and provides acceptable justification for,
a specific notice period of greater duration.
(4) Whenever possible, the submitter's claim of confidentiality
should be supported by a statement or certification by an officer or
authorized representative of the company that the information in
question is in fact confidential commercial or financial information and
has not been disclosed to the public.
(d) Opportunity to object to disclosure. Through the notice
described in paragraph (b) of this section, a component shall afford a
business submitter ten working days within which to provide the
component with a detailed statement of any objection to disclosure. Such
statement shall specify all grounds for withholding any of the
information under any exemption of the Freedom of Information Act and,
in the case of Exemption 4, shall demonstrate why the information is
contended to be a trade secret or commercial or financial information
that is privileged or confidential. Information provided by a business
submitter pursuant to this paragraph may itself be subject to disclosure
under the FOIA. When notice is given to a submitter under this section,
the requester will be advised that such notice has been given to the
submitter. The requester will be further advised that a delay in
responding to the request may be considered a denial of access to
records and that the requester may proceed with an administrative appeal
or seek judicial review, if appropriate. However, the requester will be
invited to agree to a voluntary extension of time so that the component
may review the business submitter's objection to disclosure.
(e) Notice of intent to disclose. A component shall consider
carefully a business submitter's objections and specific grounds for
nondisclosure prior to determining whether to disclose business
information. Whenever a component decides to disclose business
information over the objection of a business submitter, the component
shall forward to the business submitter a written notice which shall
include:
(1) Statement of the reasons for which the business submitter's
disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which is ten working days after the
notice of the final decision to release the requested information has
been mailed to the submitter. A copy of the disclosure notice shall be
forwarded to the requester at the same time.
(f) Notice of FOIA lawsuit. Wherever a requester brings suit seeking
to compel disclosure of business information covered by paragraph (c) of
this section, the component shall promptly notify the business
submitter.
(g) Exception to notice requirement. The notice requirements of this
section shall not apply if:
(1) The component determines that the information shall not be
disclosed;
(2) The information lawfully has been published or otherwise made
available to the public.
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The information was acquired in the course of a lawful
investigation of a possible violation of criminal law.
Sec. 1.7 Fees for services.
(a) In general. (1) This fee schedule is applicable uniformly to all
components of the Department of the Treasury and supersedes fee
schedules published by any component of the Department. Specific levels
of fees are prescribed for each of the following categories of
requesters. (Requesters are required to identify what category they
belong to in their initial request in accordance with Sec. 1.5(c)).
(i) Commercial use requesters. These requesters are assessed charges
which recover the full direct costs of searching, reviewing, and
duplicating the records sought. Commercial use requesters are entitled
to neither two hours of free search time nor 100 free pages of
reproduction of documents. Moreover, when a request is received for
disclosure that is primarily in the commercial interest of the
requester, the Department is not required to consider a request for a
waiver or reduction of fees based upon the assertion that disclosure
would be
[[Page 24]]
in the public interest. The Department may recover the cost of searching
for and reviewing records even if there is ultimately no disclosure of
records. Requesters must reasonably describe the records sought.
(ii) Educational and non-commercial scientific institution
requesters. Documents shall be provided to requesters in this category
for the cost of reproduction alone, excluding charges for the first 100
pages. To be eligible, requesters must show that the request is made
under the auspices of a qualifying institution and that the records are
not sought for a commercial use, but are sought in furtherance of
scholarly (if the request is from an educational institution) or
scientific (if the request is from a non-commercial scientific
institution) research. Requesters eligible for free search must
reasonably describe the records sought.
(iii) Requesters who are representatives of the news media.
Documents shall be provided to requesters in this category for the cost
of reproduction alone, excluding charges for the first 100 pages.
Requesters eligible for free search must reasonably describe the records
sought.
(iv) All other requesters. Requesters who do not fit any of the
categories described in this subsection shall be charged fees that will
recover the full direct cost of searching for and reproducing records
that are responsive to the request, except that the first 100 pages of
reproduction and the first two hours of search time shall be furnished
without charge. The Department may recover the cost of searching for
records even if there is ultimately no disclosure of records. Requests
from record subjects for records about themselves filed in the
Department's systems of records will continue to be treated under the
fee provisions of the Privacy Act of 1974 which permit fees only for
reproduction. Requesters must reasonably describe the records sought.
(2) Definition of search, duplication, and review. The search,
duplication, and review services for which fees shall be charged in
accordance with the category of requester are defined as follows:
(i) Search. The term ``search'' includes all time spent looking for
material that is responsive to a request, including page-by-page or
line-by-line identification of material within documents. Searches may
be done manually or by computer using existing programming.
(ii) Duplication. The term ``duplication'' refers to the process of
making a copy of a document in order to respond to a FOIA request. Such
copies can take the form of paper copy, microform, audio-visual
materials, or machine readable documentation (e.g., magnetic tape or
disk), among others.
(iii) Review. The term ``review'' refers to the process of examining
documents located in response to a commercial use request to determine
whether any portion of any document located is permitted to be withheld.
It also includes processing any documents for disclosure, e.g., doing
all that is necessary to excise them and otherwise prepare them for
release.
(3) Aggregating requests. When the Department or a component of the
Department reasonably believes that a requester or group of requesters
is attempting to break a request down into a series of requests for the
purpose of evading the assessment of fees, the agency shall aggregate
any such requests and charge accordingly.
(4) Publications available for sale through the Government Printing
Office. While certain publications which are available for sale through
the Government Printing Office may be placed on the shelves of the
reading rooms and similar public inspection facilities, such
publications will not be available for sale there. Persons desiring to
purchase such publications should contact the Superintendent of
Documents, U.S. Government Printing Office, Washington, DC 20402.
However, copies of pages of such publications may be obtained at those
facilities in accordance with the schedule of fees set forth in
paragraph (g) of this section.
(b) When fees are charged. (1) No fee will be charged for monitoring
a requester's inspection of records.
(2) Fees shall be charged in accordance with the schedule contained
in paragraph (g) of this section for serivces rendered in responding to
requests for records, unless any one of the following applies:
[[Page 25]]
(i) Services were performed without charge;
(ii) The cost of collecting a fee would be equal to or greater than
the fee itself; or,
(iii) The fees were waived or reduced in accordance with paragraphs
(c) or (d) of this section.
(c) Services performed without charge. The heads of components of
their delegates are authorized to determine, under the rulemaking
procedures of 5 U.S.C. 553, which classes of records under their control
may be provided to the public without charge, or at a reduced charge.
(d) Waiver or reduction of fees. (1) Fees may be waived or reduced
on a case by case basis in accordance with this paragraph by the
official who determines the availability of the records, provided such
waiver or reduction has been requested in writing. Fees shall be waived
or reduced by this official when it is determined, based upon the
submission of the requester, that a waiver or reduction of the fees is
in the public interest because furnishing the information is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.
(2) Normally no charge shall be made for providing records to
Federal, state or foreign governments, international governmental
organizations, or local governmental agencies or offices.
(3) Appeals from denials of requests for waiver or reduction of fees
shall be decided in accordance with the criteria set forth in paragraph
(d)(1) of this section by the official authorized to decide appeals from
denials of access to records. Appeals shall be addressed in writing to
such official within 35 days of the denial of the initial request for
waiver or reduction and shall be decided promptly.
(4) Appeals from an adverse determination of the requester's
category as described in Sec. 1.5(c)(1) and provided in Sec. 1.5(h)(1)
shall be decided by the official authorized to decide appeals from
denials of access to records and shall be based upon a review of the
requester's submission and the component's own records. Appeals shall be
addressed in writing to such official within 35 days of the component's
determination of the requester's category and shall be decided promptly.
(e) Avoidance of unexpected fees. In order to protect the requester
from unexpected fees, all requests for records shall state the agreement
of the requester to pay the fees determined in accordance with paragraph
(g) of this section and qualified by the limitations in paragraph (a) of
this section or state the amount which the requester has set as an
acceptable upper limit he or she is willing to pay to cover the costs of
processing the request.
(1) When the fees for processing the request are estimated by the
component of the Department of the Treasury to exceed the limit set by
the requester, and that amount is less than $250, the requester shall be
notified of the estimated costs. In addition, the requester shall also
be given an opportunity to reformulate the request in an attempt to
reduce fees and still provide the requester with the documents sought.
(2) When the requester has failed to state a limit and the costs are
estimated to exceed $250.00 and the relevant component has not then
determined to waive or reduce the fees, a notice shall be sent to the
requester. This notice shall:
(i) Inform the requester of the estimated costs;
(ii) Extend an offer to the requester to confer with personnel of
the relevant component of the Department of the Treasury in an attempt
to reformulate the request in a manner which will reduce the fees and
still meet the needs of the requester.
(3) When the Department or a component of the Department acts under
paragraph (e)(1) or (2) of this section, the administrative time limits
of 10 working days from receipt of initial requests and 20 working days
from receipt of appeals from initial denial plus extensions of these
time limits will begin only after fees have been paid or a request
reformulated.
(f) Form of payment. (1) Payment shall be made by check or money
order payable to the order of the Treasury of the United States or that
relevant component of the Department of the Treasury.
[[Page 26]]
(2) The Department of the Treasury reserves the right to request
prepayment after a request is processed and before documents are
released.
(3) When costs are estimated or determined to exceed $250, the
Department shall notify the requester of the likely cost and obtain
satisfactory assurance of full payment where the requester has a history
of prompt payment of FOIA fees or require a requester to make an advance
payment of the entire fee before continuing to process the request in
the case of requesters with no history of payment.
(4) If a requester has previously failed to pay a fee in a timely
fashion (i.e. within 30 days of the date of the billing), the requester
shall be required to pay the full amount owed plus any applicable
interest (31 U.S.C. 3717), and to make an advance payment of the full
amount of the estimated fee before the Department begins to process a
new request or the pending request. Whenever interest is charged, the
Department shall begin assessing interest on the 31st day following the
day on which billing was sent. Interest will be at the rate prescribed
in 31 U.S.C. 3717. In addition, the Department will take all steps
authorized by the Debt Collection Act of 1982, including administrative
offset pursuant to 31 CFR part 4, disclosure to consumer reporting
agencies and use of collection agencies, to encourage repayment.
(g) Amounts to be charged for specified services. The fees for
services performed by the relevant component of the Department of the
Treasury shall be imposed and collected as set forth in this paragraph.
Should services other than those described be requested and rendered,
appropriate fees shall be established by the head of the relevant
component of the Department, or a delegate, and such fees shall be
imposed and collected, but subject to the constraints imposed by 5
U.S.C. 552(a)(4)(A).
(1) Copying records. All requesters, except commercial requesters,
will receive the first 100 pages duplicated without charge. Absent a
determination to waive fees, a component shall charge requesters as
follows:
(i) $.15 per copy of each page, up to 8\1/2\ x 14", made by
photocopy or similar process.
(ii) Photographs, films, and other materials--actual cost of
reproduction.
(iii) Other types of duplication services not mentioned above--
actual cost.
(iv) Records may be released to a private contractor for copying and
the requester will be charged the actual cost of duplication charged by
the private contractor.
(2) Search services. Educational and non-commercial scientific
requesters and members of the news media shall not be charged for any
search time. Other requesters, who are not commercial requesters, shall
not be charged for the first two hours of search time. Components shall
charge for search services consistent with the following:
(i) Searches other than for computerized records. The Department
shall charge for records at the salary rate(s) (i.e. basic pay plus 16
percent) of the employee(s) making the search. However, where a single
class of personnel is used exclusively (e.g., all administrative/
clerical, or all professional/executive), an average rate for the range
of grades typically involved may be established. This charge shall
include transportation of personnel and records necessary to the search
at actual cost.
(ii) Searches for computerized records. Actual direct cost of the
search, including computer search time, runs, and the operator's salary.
The fee for computer printouts will be actual costs.
(3) Review of records. The Department shall charge commercial use
requesters for review of records at the initial administration level at
the salary rate(s) (i.e. basic pay plus 16 percent) of the employee(s)
making the review. However, when a single class of personnel is used
exclusively (e.g., all administrative/clerical, or all professional/
executive), components may establish an average rate for the range of
grades typically involved.
(4) Inspection of documents. Fees for all services provided will be
charged whenever a component must make copies available to the requester
for inspection.
[[Page 27]]
(5) Other services. Other services and materials requested which are
not covered by this part nor required by the FOIA are chargeable at the
actual cost to the Department. This includes, but is not limited to:
(i) Certifying that records are true copies;
(ii) Sending records by special methods such as express mail, etc.
Appendices to Subpart A
Appendix A--Departmental Offices
1. In general. This appendix applies to the Departmental Offices as
defined in 31 CFR 1.1(d)(1). It identifies the location of the public
reading room at which the following documents are available for public
inspection and copying: A description of the central and field offices;
the established places where the public may obtain information,
decisions, statements of the general course and method by which
functions are channeled and determined; rules of procedure, descriptions
of forms and where they may be obtained; substantive rules and
statements of general policy and interpretations adopted by the agency;
and each amendment, revision, or repeal of the foregoing; final
adjudications of cases; statements of policy and interpretations which
have been adopted by the agency and are not published in the Federal
Register; administrative staff manuals and instructions to staff that
affect a member of the public. In addition, the appendix identifies the
officers designated to make the initial and appellate determinations to
FOIA requests, the officers designated to receive service of process,
and the addresses for delivery of requests, appeals and service of
process.
2. Public reading room. The public reading room for the Departmental
Offices is maintained at the following location:
Library, Room 5030, Main Treasury Building, 1500 Pennsylvania Avenue
NW., Washington, DC 20220.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the Departmental Offices
will be made by the head of the organizational unit having immediate
custody of the records requested or the delegate of such official.
Requests for records should be addressed to: Freedom of Information
Request, D.O., Chief, Disclosure Branch, Department of the Treasury,
1500 Pennsylvania Avenue NW., Washington, DC 20220.
Requests may be delivered in person to the Main Treasury Building,
Room 5030, 1500 Pennsylvania Avenue NW., Washington, DC.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the Departmental Offices will be made by the Secretary, Deputy
Secretary, Under Secretary, General Counsel, or Assistant Secretary
having jurisdiction over the organizational unit which has immediate
custody of the records requested, or the delegate of such officer.
Appeals made by mail should be addressed to: Freedom on Information
Appeal, D.O., Chief, Disclosure Branch, Department of the Treasury, 1500
Pennsylvania Avenue NW., Washington, DC 20220.
Appeals may be delivered personally to the Main Treasury Building,
Room 5030, 1500 Pennsylvania Avenue NW., Washington, DC.
5. Delivery of process. Service of process will be received by the
General Counsel of the Department of the Treasury or the delegate of
such officer and shall be delivered to the following location: General
Counsel, Department of the Treasury, Room 3000, Main Treasury Building,
1500 Pennsylvania Avenue NW., Washington. DC 20220.
Appendix B--Internal Revenue Service
1. In general. This appendix applies to Internal Revenue Service. It
identifies the location of the public reading room at which the
following documents of the Internal Revenue Service are available for
public inspection and copying: A description of the central and field
offices; the established places where the public may obtain information,
decisions, statements of the general course and method by which
functions are channeled and determined; rules of procedure, descriptions
of forms and where they may be obtained; substantive rules and
statements of general policy and interpretations adopted by the agency;
and each amendment, revision, or repeal of the foregoing; final
adjudications of cases; statements of policy and interpretations which
have been adopted by the agency and are not published in the Federal
Register administrative staff manuals and instructions to staff that
affect a member of the public. In adition, the appendix identifies the
officers designated to make the initial and appellate determinations to
FOIA requests, the officers designated to receive service of process,
and the addresses for delivery of requests, appeals and service of
process. For additional rules issued with respect to the Internal
Revenue Service, see 26 CFR 601.701 and 601.702.
2. Public reading room. The public reading room for the Internal
Revenue Service is maintained at the following location: Room 1569, 1111
Constitution Avenue NW., Washington DC.
Mailing address: Internal Revenue Service, P.O. Box 338, Ben Franklin
Station, Washington, DC 20044.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to
[[Page 28]]
grant requests for records of the Internal Revenue Service will be made
by those officials specified in 26 CFR 601.702.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the Internal Revenue Service will be made by the Commissioner of
Internal Revenue or the delegate of such officer. Appeals made by mail
should be addressed to:
Freedom of Information Appeal, Commissioner of Internal Revenue Service,
c/o Ben Franklin Station, P.O. Box 929, Washington, DC 20044.
Appeals may be delivered personally to the
Director of the Disclosure Litigation Division, Office of the Chief
Counsel, Internal Revenue Building, 1111 Constitution Avenue NW.,
Washington, DC.
5. Delivery of process. Service of process will be received by the
Commissioner of Internal Revenue at the following address:
Commissioner, Internal Revenue Service, 1111 Constitution Avenue NW.,
Washington, DC 20224. Attention: CC:A:OS.
Appendix C--United States Customs Service
1. In general. This appendix applies to the United States Customs
Service. It identifies the location of the public reading room at which
the following documents are available for public inspection and copying:
a description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they may
be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process. For additional rules issued specifically
with respect to the United States Customs Service, see 19 CFR part 103.
2. Public reading rooms. Public reading rooms for the United States
Customs Service are maintained at the following locations:
Headquarters
United States Customs Service, 1301 Constitution Avenue NW., Washington,
DC 20229.
Regions
Northeast: 100 Summer Street, Boston, MA 02110.
New York: 6 World Trade Center, New York, NY 10048.
Southeast: 99 Southeast 5th Street, Miami, FL 33131.
South Central: 423 Canal Street, New Orleans, LA 70130.
Southwest: 5850 San Felipe Street, Houston, TX 77057.
Pacific: 300 North Los Angeles Street, Los Angeles, CA 90012.
North Central: 55 East Monroe Street, Chicago, IL 60603.
3. Requests for records--(a) Headquarters. Initial determinations
under 31 CFR 1.5(g) as to whether to grant requests for records will be
made by the appropriate Division Director at Customs Service
Headquarters having custody of or functional jurisdiction over the
subject matter of the requested records. If the request relates to
records maintained in an office which is not within a division, the
initial determination shall be made by the individual designated for
that purpose by the Assistant Commissioner or Comptroller, having
responsibility for that office. Requests may be mailed or delivered in
peson to: Freedom of Information Act Request, Chief, Disclosure Law
Branch, U.S. Customs Service, 1301 Constitution Avenue NW., Washington,
DC 20229.
(b) Regional Offices. Initial determinations under 31 CFR 1.5(g) as
to whether to grant requests for records will be made by the Regional
Commissioner of Customs in whose region the records are maintained.
Requests may be mailed or delivered personally to the respective
Regional Commissioner at the following regional locations:
Northeast: 100 Summer Street, Boston, MA 02110.
New York: 6 World Trade Center, New York, NY 10048.
Southeast: 99 Southeast 5th Street, Miami, FL 33131.
South Central: 423 Canal Street, New Orleans, LA 70130.
Southwest: 5850 San Felipe Street, Houston, TX 77057.
Pacific: 300 North Los Angeles Street, Los Angeles, CA 90012.
North Central: 55 East Monroe Street, Chicago, IL 60603.
Any substantive denial of an initial request for information under 31
CFR 1.5(g) will be made by the appropriate Division Director at Customs
Service Headquarters having custody of or functional jurisdiction over
the
[[Page 29]]
subject matter of the requested records. If the request relates to
records maintained in an office which is not within a division, the
initial determination shall be made by the individual designated for
that purpose by the Assistant Commissioner or Comptroller having
responsibility for that office.
(c) All such requests should be conspicuously labeled on the face of
the envelope, ``Freedom of Information Act Request'' or ``FOIA
Request''.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) will be made by the
Commissioner of Customs, and all such appeals should be mailed or
personally delivered to the United States Customs Service, 1301
Constitution Avenue NW., Washington, DC 20229.
5. Delivery of process. Service of process will be received by the
Chief Counsel, United States Customs Service, 1301 Constitution Avenue
NW., Washington, DC 20229.
Appendix D--United States Secret Service
1. In general. This appendix applies to the United States Secret
Service. It identifies the location of the public reading room at which
the following documents are available for public inspection and copying:
A description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they may
be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process. For additional rules issued specifically
with respect to the United States Secret Service, see 31 CFR parts 401
through 408.
2. Public reading room. The United States Secret Service will
provide a room on an ad hoc basis when necessary. Contact the Disclosure
Officer, Room 720, 1800 G Street NW., Washington, DC 20223 to make
appointments.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the United States Secret
Service will be made by the Freedom of Information and Privacy Acts
Officer, United States Secret Service. Requests may be mailed or
delivered in person to: Freedom of Information Act Request, FOI and
Privacy Acts Officer, U.S. Secret Service, Room 720, 1800 G Street, NW.,
Washington, DC 20223.
4. Administrative appeal of initial determinations under 31 CFR
1.5(h) with respect to records of the United States Secret Service will
be made by the Deputy Director, United States Secret Service. Appeals
should be addressed to: Freedom of Information Appeal, Deputy Director,
United States Secret Service, Room 941, 1800 G Street, NW., Washington,
DC 20223.
5. Delivery of process. Service of process will be received by the
United States Secret Service Chief Counsel at the following address:
Chief Counsel, United States Secret Service, 1800 G Street NW., Room
842, Washington, DC 20223.
Appendix E--Bureau of Alcohol, Tobacco, and Firearms
1. In general. This appendix applies to the Bureau of Alcohol,
Tobacco, and Firearms. It identifies the location of the public reading
room at which the following documents are available for public
inspection and copying: A description of the central and field offices;
the established places where the public may obtain information,
decisions, statements of the general course and method by which
functions are channeled and determined; rules of procedure, descriptions
of forms and where they may be obtained; substantive rules and
statements of general policy and interpretations adopted by the agency;
and each amendment, revision, or repeal of the foregoing; final
adjudications of cases; statements of policy and interpretations which
have been adopted by the agency and are not published in the Federal
Register; administrative staff manuals and instructions to staff that
affect a member of the public. In addition, the appendix identifies the
officers designated to make the initial and appellate determinations to
FOIA requests, the officers designated to receive service of process,
and the addresses for delivery of requests, appeals and service of
process. For additional rules issued specifically with respect to the
Bureau of Alcohol, Tobacco, and Firearms, see 27 CFR part 71.
2. Public reading room. The Bureau of Alcohol, Tobacco, and Firearms
will make materials available for review on an ad hoc basis when
necessary. Contact the Chief, Disclosure Branch, Bureau of Alcohol,
Tobacco, and Firearms, 1200 Pennsylvania Avenue, NW., Washington, DC
20226.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the Bureau of Alcohol,
Tobacco, and Firearms will be made
[[Page 30]]
by the Chief, Disclosure Branch, Office of Assistant Director
(Congressional and Media Affairs) or the delegate of such officer.
Requests may be mailed or delivered in person to: Freedom of Information
Act Request, Chief, Disclosure Branch, Bureau of Alcohol, Tobacco, and
Firearms, 1200 Pennsylvania Avenue, NW., Room 4406, Washington, DC
20226.
4. Administrative appeal of initial determination to deny records.
Appellate determination under 31 CFR 1.5(h) with respect to records of
the Bureau of Alcohol, Tobacco, and Firearms will be made by the
Director of the Bureau of Alcohol, Tobacco, and Firearms or the delegate
of such officer.
Appeals may be mailed or delivered in person to: Freedom of
Information Appeal, Director, Bureau of Alcohol, Tobacco, and Firearms,
1200 Pennsylvania Avenue, NW., Washington, DC 20226.
5. Delivery of process. Service of process will be received by the
Director of the Bureau of Alcohol, Tobacco, and Firearms at the
following location: Director, Bureau of Alcohol, Tobacco, and Firearms,
1200 Pennsylvania Avenue, NW., Washington, DC 20226, Attention: Chief
Counsel.
Appendix F--Bureau of Engraving and Printing
1. In general. This appendix applies to the Bureau of Engraving and
Printing. It identifies the location of the public reading room at which
the following documents are available for public inspection and copying:
A description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they may
be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process.
2. Public reading room. No room has been set aside for this purpose.
The Bureau of Engraving and Printing will make materials available for
review on an ad hoc basis when necessary. Contact the Disclosure
Officer, 14th and C Street, SW., Washington, DC 20228, to make an
appointment.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the Bureau of Engraving
and Printing will be made by the Executive Assistant to the Director.
Requests may be mailed or delivered in person to: Freedom of Information
Act Request, Disclosure Officer, (Executive Assistant to the Director),
Room 104-18M, Bureau of Engraving and Printing, Washington, DC 20228.
4. Administrative appeal of initial determination under 31 CFR
1.5(h) with respect to records of the Bureau of Engraving and Printing
will be made by the Director of the Bureau of Engraving and Printing or
the delegate of the Director. Appeals may be mailed or delivered in
person to: Freedom of Information Appeal, Director, Bureau of Engraving
and Printing, 14th and C Streets, SW., Room 118-M, Washington, DC 20228.
5. Delivery of process. Service of process will be received by the
Chief Counsel or the delegate of such officer at the following location:
Chief Counsel, Bureau of Engraving and Printing, 14th and C Streets,
SW., Room 109-M, Washington, DC 20228.
Appendix G--Financial Management Service
1. In general. This appendix applies to the Financial Management
Service. It identifies the location of the public reading room at which
the following documents are available for public inspection and copying:
A description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they may
be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process. For additional rules issued specifically
with respect to Financial Management Service, see 31 CFR part 270.
2. Public reading room. The public reading room for the Financial
Management Service is maintained at the following location: Library,
Room 5030, Main Treasury Building, 1500 Pennsylvania Avenue NW.,
Washington, DC 20220.
[[Page 31]]
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
whether to grant requests for records will be made by the Disclosure
Officer, Financial Management Service. Requests may be mailed or
delivered in person to: Freedom of Information Request, Disclosure
Officer, Financial Management Service, Room 108, Treasury Department,
Annex No. 1, Pennsylvania Avenue and Madison Place, NW., Washington, DC
20226.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) will be made by the
Commissioner, Financial Management Service. Appeals may be mailed to:
Freedom of Information Appeal (FOIA), Commissioner, Financial Management
Service, Department of the Treasury, Annex No. 1, Washington, DC 20226.
Appeals may be delivered personally to the Office of the Commissioner,
Financial Management Service, Room 618, Treasury Annex No. 1,
Pennsylvania Avenue and Madison Place, NW., Washington, DC.
5. Delivery of process. Service of process will be reeived by the
Commissioner, Financial Management Service, and shall be delivered to:
Commissioner, Financial Management Service, Department of the Treasury,
Room 618, Treasury Annex No. 1, Pennsylvania Avenue and Madison Place,
NW., Washington, DC 20226.
Appendix H--United States Mint
1. In general. This appendix applies to the United States Mint. It
identifies the location of the public reading room at which the
following documents are available for public inspection and copying: A
description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they may
be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process. For additional rules issued specifically
with respect to the United States Mint, see 31 CFR part 92.
2. Public reading room. No room has been set aside for this purpose.
The U.S. Mint will provide a room on an ad hoc basis when necessary.
Contact the Disclosure Officer, Judiciary Square Building, 633 3rd
Street, NW., Washington, DC 20220.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the United States Mint
will be made by the Associate Director for Policy and Management, United
States Mint. Requests may be mailed or delivered in person to: Freedom
of Information Act Request, Chief, Administrative Programs Division,
United States Mint, Department of the Treasury, Judiciary Square
Building, 633 3rd Street, NW., Washington, DC 20220.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the United States Mint will be made by the Director of the Mint. Appeals
made by mail should be addressed to: Freedom of Information Appeal,
Director of the Mint, Department of the Treasury, Judiciary Square
Building, 633 3rd Street, NW., Washington, DC 20220.
5. Delivery of process. Service of process will be received by the
Director of the Mint and shall be delivered to: Director of the Mint,
Judiciary Square Building, 633 3rd Street NW., Washington, DC 20220.
Appendix I--Bureau of the Public Debt
1. In general. This appendix applies to the Bureau of the Public
Debt. It identifies the location of the public reading room at which the
following documents are available for public inspection and copying: A
description of the central and field offices; the established places
where the public may obtain information, decisions, statements of the
general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they may
be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process. For additional rules issued specifically
with respect to the Bureau of the Public Debt, see 31 CFR part 323.
2. Public reading room. The public reading room for the Bureau of
the Public Debt is
[[Page 32]]
maintained at the following location: Library, Room 5030, Main Treasury
Building, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records will be made by the
Information Officer of the Bureau of the Public Debt. Requests may be
mailed or delivered in person to: Freedom of Information Act Request,
Information Officer, Bureau of the Public Debt, Department of the
Treasury, 999 E Street NW., Room 553, Washington, DC, 20239.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the Bureau of the Public Debt will be made by the Commissioner of the
Public Debt. Appeals made by mail should be addressed to: Freedom of
Information Appeal, Commissioner, Bureau of the Public Debt, Department
of the Treasury, Washington, DC 20239.
5. Delivery of process. Service of process will be received by the
Chief Counsel, Bureau of the Public Debt, and shall be delivered to the
following location: Chief Counsel, Bureau of the Public Debt, Room 503,
999 E Street NW., Washington, DC 20239.
Appendix J--Office of the Comptroller of the Currency
1. In general. This appendix applies to the Office of the
Comptroller of the Currency. It identifies the location of the public
reading room at which the following documents are available for public
inspection and copying: a description of the central and field offices;
the established places where the public may obtain information,
decisions, statements of the general course and method by which
functions are channeled and determined; rules of procedure, descriptions
of forms and where they may be obtained; substantive rules and
statements of general policy and interpretations adopted by the agency;
and each amendment, revision, or repeal of the foregoing; final
adjudications of cases; statements of policy and interpretations which
have been adopted by the agency and are not published in the Federal
Register; administrative staff manuals and instructions to staff that
affect a member of the public. In addition, the appendix identifies the
officers designated to make the initial and appellate determinations to
FOIA requests, the officers designated to receive service of process,
and the addresses for delivery of requests, appeals and service of
process. For additional rules issued specifically with respect to the
Office of the Comptroller of the Currency, see 12 CFR part 4.
2. Public reading room. The Office of the Comptroller of the
Currency will make materials available for review on an ad hoc basis
when necessary. Contact the Disclosure Officer, Communications Division,
Office of the Comptroller of the Currency, 250 E Street, SW, Washington,
DC 20219.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
whether to grant requests for records of the Office of the Comptroller
of the Currency will be made by the Director of Communications or that
person's delegate. Requests may be mailed or delivered in person to:
Disclosure Officer, Communications Division, Office of the Comptroller
of the Currency, 250 E Street, SW, Washington, DC 20219.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the Office of the Comptroller of the Currency will be made by the
Comptroller or the Comptroller's delegate. Appeals may be mailed or
delivered in person to: Disclosure Officer, Communications Division,
Office of the Comptroller of the Currency, 250 E Street, SW, Washington,
DC 20219.
5. Delivery of process. Service of process shall be delivered to the
Chief Counsel or the Chief Counsel's delegate at the following location:
Office of the Comptroller of the Currency, 250 E Street, SW, Washington,
DC 20219.
[52 FR 26305, July 14, 1987, as amended at 60 FR 57333, Nov. 15, 1995]
Appendix K--United States Savings Bond Division
1. In general. This appendix applies to the United States Savings
Bond Division. It identifies the location of the public reading room at
which the following documents are available for public inspection and
copying: A description of the central and field offices; the established
places where the public may obtain information, decisions, statements of
the general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they may
be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate determinations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process.
[[Page 33]]
2. Public reading room. The public reading room for the United
States Savings Bond Division is maintained at the following location:
Library, Room 5030, Main Treasury Building, 1500 Pennsylvania Ave NW.,
Washington DC 20220.
3. Requests for records. (a) Initial determinations under 31 CFR
1.5(g) whether to grant requests for records relating to the substantive
Savings Bond Program, such as records relating to ownership of and
transactions in savings bonds, will be made by the Information Officer
of the Bureau of Public Debt. Requests may be mailed or delivered in
person to: Freedom of Information Act Request, Information Officer,
Bureau of the Public Debt, Room 300, Washington Building, 1435 G Street
NW., Washington 20226.
(b) Initial determinations under 31 CFR 1.5(g) whether to grant
requests for other records of the United States Savings Bond Division,
such as personnel records or records relating to the internal management
of the Division, will be made by the Director of Public Affairs, United
States Savings Bond Division. Requests made by mail should be addressed
to: Freedom of Information Act Request, Director of Public Affairs, U.S.
Savings Bond Division, Department of the Treasury, Washington, DC 20226.
Requests may be delivered in person to the Office of the Director, U.S.
Savings Bond Division, Room 257 1111 20th Street NW., Washington, DC.
4. Administrative appeal of determination to deny records. (a)
Appellate determinations under 31 CFR 1.5(h) with respect to records,
access to which has been denied by the Information Officer of the Bureau
of the Public Debt, will be made by the Commissioner, Bureau of the
Public Debt. Appeals made by mail should be addressed to: Freedom of
Information Appeal, Commissioner Bureau of the Public Debt, Department
of the Treasury, Washington, DC 20226.
Appeals may be delivered in person to the Office of the Information
Officer, Room 300, Washington Building, 1435 G Street NW., Washington,
DC.
(b) Appellate determinations under 31 CFR 1.5(h) with respect to
records, access to which has been denied by the Director of Public
Affairs, United States Savings Bond Division, will be made by the
National Director, United States Savings Bond Division. Requests made by
mail should be addressed to: Freedom of Information Appeal, National
Director, Department of the Treasury, Washington, DC 20226.
Requests may be delivered personally to the office of the Deputy
National Director, Room 317, 1111 20th Street NW., Washington, DC.
5. Delivery of process. Service of process will be received by the
Commissioner, Bureau of the Public Debt and shall be delivered to such
officer at the following location: Commissioner, Bureau of the Public
Debt, Room 300, Washington Bldg., 1435 G Street NW., Washington, DC
20226.
Appendix L--Federal Law Enforcement Training Center
1. In general. This appendix applies to the Federal Law Enforcement
Training Center. It identifies the location of the public reading room
at which the following documents are available for public inspection and
copying: A description of the central and field offices; the established
places where the public may obtain information, decisions, statements of
the general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they may
be obtained; substantive rules and statements of general policy and
interpretations adopted by the agency; and each amendment, revision, or
repeal of the foregoing; final adjudications of cases; statements of
policy and interpretations which have been adopted by the agency and are
not published in the Federal Register; administrative staff manuals and
instructions to staff that affect a member of the public. In addition,
the appendix identifies the officers designated to make the initial and
appellate deteminations to FOIA requests, the officers designated to
receive service of process, and the addresses for delivery of requests,
appeals and service of process.
2. Public reading room. The public reading room for the Federal Law
Enforcement Training Center is maintained at the following location:
Library, Building 262, Federal Law Enforcement Training Center, Glynco,
GA 31524.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records will be made by the
Director, Federal Law Enforcement Training Center. Requests made by mail
should be addressed to:
Freedom of Information Act Request, Freedom of Information Act Officer,
Federal Law Enforcement Training Center, Department of the Treasury,
Building 94, Glynco, GA 31524.
Requests may be delivered personally to the Library, Federal Law
Enforcement Training Center, Building 94, Glynco, GA.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the consolidated Federal Law Enforcement Training Center will be made by
the Assistant Secretary (Enforcement). Appeals may be mailed or
delivered in person to: Freedom of Information Appeal, Assistant
Secretary (Enforcement), Department of the Treasury, 1500 Pennsylvania
Avenue
[[Page 34]]
NW., Room 4312, Room 3448, Washington, DC 20220.
5. Delivery of process. Service of process will be received by the
General Counsel of the Department of the Treasury, or his delegate, and
shall be delivered to such officer at the following location: General
Counsel, Department of the Treasury, Room 3000, Main Treasury Building,
1500 Pennsylvania Avenue NW., Washington, DC 20220.
Appendix M--Office of Thrift Supervision
1. In general. This appendix applies to the Office of Thrift
Supervision. It identifies the location of the public reading room at
which the following documents are available for public inspection and
copying: Description of the central and field offices; the established
places where the public may obtain information, decisions, statements of
the general course and method by which functions are channeled and
determined; rules of procedure, descriptions of forms and where they may
be obtained; final adjudications of cases; instructions to staff that
affect a member of the public; filings under the Security Exchange Act
of 1934; consent agreements in enforcement matters; pleadings, opinions
and decisions in administrative adjudications; Regulatory and Thrift
Bulletins; Chief Counsel Opinions, substantive rules and statements of
general policy and interpretations adopted by the agency, and each
amendment, revisions, or repeal of the foregoing, including those which
have not been published in the Federal Register; draft rules and comment
letters, and final Orders of the Director. Office of Thrift Supervision
(OTS) regulatory handbooks and other publications are available for
sale. Information may be obtained by calling the OTS Order Department at
(301) 645-6264. OTS regulatory handbook and other publications may be
purchased by forwarding a request, along with a check to: OTS Order
Department, P.O. Box 753, Waldorf, MD 20604 or by calling (301) 645-6264
to pay by VISA or MASTERCARD. In addition, the appendix identifies the
officers designated to make the initial and appellate determinations to
FOIA requests, the officers designated to receive service of process,
and the addresses for delivery of requests, appeals and service of
process.
2. Public reading room. The public reading room for the Office of
Thrift Supervision is maintained at the following location: Public
Reading Room, 1700 G Street, NW., Washington, DC 20552.
3. Requests for records. Initial determinations under 31 CFR 1.5(g)
as to whether to grant requests for records of the Office of Thrift
Supervision will be made by the Director, Information Services Division.
Requests for records should be addressed to: Freedom of Information
Request, Chief, Disclosure Branch, Information Services Division, Office
of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
Requests may be delivered in person to: Office of Thrift
Supervision, Information, Services Division, 1700 G Street, NW.,
Washington, DC.
4. Administrative appeal of initial determination to deny records.
Appellate determinations under 31 CFR 1.5(h) with respect to records of
the Office of Thrift Supervision will be made by the Director, Public
Affairs, Office of Thrift Supervision or the delegate of such officer.
Appeals made by mail should be addressed to: Freedom of Information
Appeal, Chief, Disclosure Branch, Information Services Division, Office
of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
Appeals may be delivered in person to: Office of Thrift Supervision,
Information Services Division, 1700 G Street, NW., Washington, DC.
5. Delivery of process. Service of process will be received by the
Corporate Secretary of the Office of Thrift Supervision or the delegate
of such officer and shall be delivered to the following location:
Corporate Secretary, Office of Thrift Supervision, 1700 G Street, NW.,
Washington, DC 20552.
[60 FR 31632, June 16, 1995]
Subpart B--Other Disclosure Provisions
Sec. 1.8 Scope.
The regulations in this subpart concern access to information and
records other than under 5 U.S.C. 552. This subpart is applicable only
to the Departmental Offices as defined in Sec. 1.1(a) of this part and
the United States Savings Bonds Division and the United States Secret
Service.
Sec. 1.9 Records not to be otherwise withdrawn or disclosed.
Except in accordance with this part, or as otherwise authorized,
Treasury Department officers and employees are prohibited from making
records or duplicates available to any person, not an officer or
employee of the Department, and are prohibited from withdrawing any such
records or duplicates from the files, possession or control of the
Department.
Sec. 1.10 Oral information.
(a) Officers and employees of the Department may, in response to
requests,
[[Page 35]]
provide orally information contained in records of the Department which
are determined to be available to the public. If the obtaining of such
information requires search of the records, a written request and the
payment of the fee for record search set forth in Sec. 1.6 will be
required.
(b) Information with respect to activities of the Department not a
matter of record shall not be disclosed if the information involves
matters exempt from disclosure under 5 U.S.C. 552 or the regulations in
this part, or if the disclosure of such information would give the
person requesting the information advantages not accorded to other
citizens;
Sec. 1.11 Testimony or the production of records in a court or other proceeding.
(a) Treasury Department officers and employees are prohibited from
testifying or otherwise furnishing information obtained as a result of
their official capacities or in connection with the transaction of
public business, in compliance with a subpoena or other order or demand
of any court or other authority without the prior approval of an officer
authorized to determine the availability of records under these
regulations.
(b) Treasury Department officers and employees are prohibited from
furnishing any record in compliance with subpoenas duces tecum or other
order or demand of any court or other authority, without the prior
approval of an officer authorized to determine the availability of
records under the regulations in this part.
(c) In court cases in which the United States or the Treasury
Department is not a party, where the giving of testimony is desired, an
affidavit by the litigant or the litigant's attorney, setting forth the
information with respect to which the testimony of such officer or
employee is desired, must be submitted before permission to testify will
be granted. Permission to testify will, in all cases, be limited to the
information set forth in the affidavit or to such portions thereof as
may be deemed proper.
(d) Where approval to testify or to furnish records in compliance
with a subpoena, order or demand is not given the person to whom it is
directed shall, if possible, appear in court or before the other
authority and respectfully state his inability to comply in full with
the subpoena, order or demand, relying for his action upon this section.
Sec. 1.12 Regulations not applicable to official request.
The regulations in this part shall not be applicable to official
requests of other governmental agencies or officers thereof acting in
their official capacities, unless it appears that granting a particular
request would be in violation of law or inimical to the public interest.
Cases of doubt should be referred for decision to the supervisory
official designated in Sec. 1.8.
Subpart C--Privacy Act
Sec. 1.20 Purpose and scope of regulations.
The regulations in this subpart are issued to implement the
provisions of the Privacy Act of 1974 (5 U.S.C. 552a). The regulations
apply to all records which are contained in systems of records
maintained by the Department of the Treasury and which are retrieved by
an individual's name or personal identifier. They do not relate to those
personnel records of Government employees, which are under the
jurisdiction of the Office of Personnel Management to the extent such
records are subject to regulations issued by such OPM. The regulations
apply to all components of the Department of the Treasury. Any reference
in this subpart to the Department or its officials, employees, or
records shall be deemed to refer also to the components or their
officials, employees, or records. The regulations set forth the
requirements applicable to Department of the Treasury employees
maintaining, collecting, using or disseminating records pertaining to
individuals. They also set forth the procedures by which individuals may
request notification of whether the Department of the Treasury maintains
or has disclosed a record pertaining to them or may seek access to such
records maintained in any nonexempt system of records, request
correction of such records, appeal any initial adverse determination of
any request for
[[Page 36]]
amendment, or may seek an accounting of disclosures of such records. For
the convenience of interested persons, the components of the Department
of the Treasury may reprint these regulations in their entirety (less
any appendices not applicable to the component in question) in those
titles of the Code of Federal Regulations which normally contain
regulations applicable to such components. In connection with such
republication, and at other appropriate times, components may issue
supplementary regulations applicable only to the component in question,
which are consistent with these regulations. In the event of any actual
or apparent inconsistency, these Departmental regulations shall govern.
Persons interested in the records of a particular component should,
therefore, also consult the Code of Federal Regulations for any rules or
regulations promulgated specifically with respect to that component (see
Appendices to this subpart for cross references). The head of each
component is hereby also authorized to substitute other appropriate
officials for those designated and correct addresses specified in the
appendix to this subpart applicable to the component. The components of
the Department of the Treasury for the purposes of this subpart are:
(a) The Departmental Offices, which includes the offices of:
(1) The Secretary of the Treasury, including immediate staff;
(2) The Deputy Secretary of the Treasury, including immediate staff;
(3) The Under Secretary of the Treasury for Finance, including
immediate staff;
(4) The Fiscal Assistant Secretary, including immediate staff;
(5) The Assistant Secretary of the Treasury for Economic Policy and
all other offices reporting to such official, including immediate staff;
(6) The General Counsel and also the Legal Division, except legal
counsel to the components listed in paragraphs (a)(9) and (b) through
(l) of this section;
(7) The Assistant Secretary of the Treasury for International
Affairs and all offices reporting to such official, including immediate
staff;
(8) The Treasurer of the United States, including immediate staff;
(9) The Assistant Secretary of the Treasury for Tax Policy,
including immediate staff and all offices reporting to such official;
(10) The Assistant Secretary of the Treasury for Management, and all
offices reporting to such official, including immediate staff;
(11) The Assistant Secretary of the Treasury for Domestic Finance
and all offices reporting to such official, including immediate staff;
(12) The Assistant Secretary of the Treasury for Legislative
Affairs, including immediate staff;
(13) The Assistant Secretary of the Treasury for Public Affairs and
Public Liaison, including immediate staff;
(14) The Assistant Secretary of the Treasury for Enforcement and all
offices reporting to such official, including immediate staff;
(15) The Special Assistant to the Secretary (National Security),
including immediate staff;
(16) The Inspector General and all offices reporting to such
official, including immediate office.
(b) The Bureau of Alcohol, Tobacco and Firearms;
(c) The Office of the Comptroller of the Currency;
(d) The United States Customs Service;
(e) The Bureau of Engraving and Printing;
(f) The Federal Law Enforcement Training Center;
(g) The Financial Management Service;
(h) The Internal Revenue Service;
(i) The United States Mint;
(j) The Bureau of the Public Debt;
(k) The United States Savings Bond Division;
(l) The United States Secret Service;
(m) The Office of Thrift Supervision.
For purposes of this subpart, the office of the legal counsel for the
components listed in paragraphs (b), (c), (d), (e), (f), (g), (h), (i),
and (j) of this section are to be considered a part of such component.
Any office, which is now in existence or may hereafter be established,
which is not specifically listed or known to be a component of any of
those listed above, shall be deemed a
[[Page 37]]
part of the Departmental Offices for the purpose of these regulations.
[52 FR 26305, July 14, 1987, as amended at 60 FR 31633, June 16, 1995]
Sec. 1.21 Definitions.
(a) The term agency means agency as defined in 5 U.S.C. 552(e);
(b) The term individual means a citizen of the United States or an
alien lawfully admitted for permanent residence;
(c) The term maintain includes maintain, collect, use, or
disseminate;
(d) The term record means any item, collection, or grouping of
information about an individual that is maintained by the Department of
the Treasury or component of the Department. This includes, but is not
limited to, the individual's education, financial transactions, medical
history, and criminal or employment history and that contains the name,
or an identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print or a
photograph;
(e) The term system of records means a group of any records under
the control of the Department of the Treasury or any component from
which information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to
the individual;
(f) The term statistical record means a record in a system of
records maintained for statistical research or reporting purposes only
and not used in whole or part in making any determination about an
identifiable individual, except as provided by 13 U.S.C. 8.
(g) The term routine use means the disclosure of a record that is
compatible with the purpose for which the record was collected;
(h) The term component means a bureau or office of the Department of
the Treasury as set forth in Sec. 1.20 and in the appendices to these
regulations. (See 5 U.S.C. 552a(a).)
(i) The term request for access means a request made pursuant to 5
U.S.C. 552a(d)(1).
(j) The term request for amendment means a request made pursuant to
5 U.S.C. 552a(d)(2).
(k) The term request for accounting means a request made pursuant to
5 U.S.C. 552a(c)(3).
Sec. 1.22 Requirements relating to systems of records.
(a) In general. Subject to 5 U.S.C. 552a (j) and (k) and
Sec. 1.23(c), each component shall, in conformance with 5 U.S.C. 552a:
(1) Maintain in its records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
agency required to be accomplished by the statute or by Executive order
of the President (See 5 U.S.C. 552a(e)(1)).
(2) 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. (See 5 U.S.C. 552a(e)(2)).
(b) Requests for information from individuals. Subject to 5 U.S.C.
552a(j) and Sec. 1.23(c)(1), each component of the Treasury shall inform
each individual whom it asks to supply information, on the form which it
uses to collect the information or on a separate form that can be
retained by the individual:
(1) The authority (whether granted by statute, or by Executive order
of the President) which authorizes the solicitation of the information
and whether disclosure of such information is mandatory or voluntary;
(2) The principal purpose or purposes for which the information is
intended to be used;
(3) The routine uses which may be made of the information, as
published pursuant to 5 U.S.C. 552a(e)(4)(D); and
(4) The effects on such individual, if any, of not providing all or
any part of the requested information. (See 5 U.S.C. 552a(e)(3)).
(c) Report on new systems. Each component of the Treasury shall
provide adequate advance notice to Congress and the Office of Management
and Budget through the Disclosure Branch and Administration Section of
the Office of the General Counsel of any proposal to establish or alter
any system of records in order to permit an evaluation of the probable
or potential effect of such proposal on the privacy and
[[Page 38]]
other personal or property rights of individuals or the disclosure of
information relating to such individuals, and its effect on the
preservation of the constitutional principles of federalism and
separation of powers. (See 5 U.S.C. 552a(o)).
(d) Accurate and secure maintenance of records. Each component
shall:
(1) Subject to 5 U.S.C. 552a(j) and Sec. 1.23(c)(1), maintain all
records which are used in making any determination about any individual
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in the
determination (see 5 U.S.C. 552a(e)(5);
(2) Prior to disseminating any record about an individual to any
person other than an agency, unless the dissemination is made pursuant
to 5 U.S.C. 552 (see 31 CFR part 1, subpart A), make reasonable efforts
to assure that such records are accurate, complete, timely, and relevant
for Department of the Treasury purposes (see 5 U.S.C. 552a(e)(6)) and
(3) Establish appropriate administrative, technical, and physical
safeguards to insure the security and confidentiality of records and to
protect against any anticipated threats or hazards to their security or
integrity which could result in substantial harm, embarrassment,
inconvenience, or unfairness to any individual on whom information is
maintained. (See 5 U.S.C. 552a(e)(10)).
(i) System managers, with the approval of the head of their offices
within a component, shall establish administrative and physical
controls, consistent with Department regulations, to insure the
protection of records systems from unauthorized access or disclosure and
from physical damage or destruction. The controls instituted shall be
proportional to the degree of sensitivity of the records but at a
minimum must insure that records other than those available to the
general public under the Freedom of Information Act (5 U.S.C. 552), are
protected from public view, that the area in which the records are
stored is supervised during all business hours and physically secure
during nonbusiness hours to prevent unauthorized personnel from
obtaining access to the records. Automated systems shall comply with the
security standards promulgated by the National Bureau of Standards.
(ii) System managers, with the approval of the head of their offices
within a component, shall adopt access restrictions to insure that only
those individuals within the agency who have a need to have access to
the records for the performance of their duties have access to them.
Procedures shall also be adopted to prevent accidental access to, or
dissemination of, records.
(e) Prohibition against maintenance of records concerning First
Amendment rights. No component shall maintain a record describing how
any individual exercises rights guaranteed by the First Amendment (e.g.
speech), unless the maintenance of such record is:
(1) Expressly authorized by statute, or
(2) Expressly authorized by the individual about whom the record is
maintained, or
(3) Pertinent to and within the scope of an authorized law
enforcement activity. (See 5 U.S.C. 552a (e)(7))
(f) Notification of disclosure under compulsory legal process.
Subject to 5 U.S.C. 552a(j) and Sec. 1.23(c)(1), when records concerning
an individual are subpoenaed by a Grand Jury, Court, or quasi-judicial
agency, or disclosed in accordance with an ex parte court order pursuant
to 26 U.S.C. 6103(i), the official served with the subpoena or court
order shall make reasonable efforts to assure that notice of any
disclosure is provided to the individual. Notice shall be provided
within five working days of making the records available under
compulsory legal process or, in the case of a Grand Jury subpoena or an
ex parte order, within five days of its becoming a matter of public
record. Notice shall be mailed to the last known address of the
individual and shall contain the following information: the date and
authority to which the subpoena is, or was returnable, or the date of
and court issuing the ex parte order, the name and number of the case or
proceeding, and the nature of the information sought and provided.
Notice of the issuance of a subpoena or an ex parte order is not
required if the system of records has been exempted from the notice
requirement of 5 U.S.C. 552a
[[Page 39]]
(e)(8) and this section, pursuant to 5 U.S.C. 552a (j) and Sec. 1.23
(c)(1), by a Notice of Exemption published in the Federal Register. (See
5 U.S.C. 552a (e)(8)).
(g) Emergency disclosure. If information concerning an individual
has been disclosed to any person under compelling circumstances
affecting health or safety, the individual shall be notified at the last
known address within 5 days of the disclosure (excluding Saturdays,
Sundays, and legal public holidays). Notification shall include the
following information: The nature of the information disclosed, the
person or agency to whom it was disclosed, the date of disclosure, and
the compelling circumstances justifying the disclosure. Notification
shall be given by the officer who made or authorized the disclosure.
(See 5 U.S.C. 552a (b)(8)).
Sec. 1.23 Publication in the Federal Register--Notices of systems of records, general exemptions, specific exemptions, review of all systems.
(a) Notices of systems of records to be published in the Federal
Register. (1) The Department shall publish a notice of the existence and
character of all systems of records every 3 years in the Federal
Register. An annual notice of systems of records is required to be
published by the Office of the Federal Register in the publication
entitled ``Privacy Act Issuances'', as specified in 5 U.S.C. 552a(f).
(2) Minor changes to systems of records shall be published annually.
(See paragraph (d)(8) of this section)
(3) In addition, the Department shall publish in the Federal
Register upon establishment or revision a notice of the existence and
character of any new or revised systems of records. Unless otherwise
instructed, each notice shall include:
(i) The name and location of the system;
(ii) The categories of individuals on whom records are maintained in
the system;
(iii) The categories of records maintained in the system;
(iv) Each routine use of the records contained in the system,
including the categories of users and the purpose of such use;
(v) The policies and practices of the component regarding storage,
retrievability, access controls, retention, and disposal of the records;
(vi) The title and business address of the Treasury official who is
responsible for the system of records;
(vii) The procedures of the component whereby an individual can be
notified if the system of records contain a record pertaining to the
individual, including reasonable times, places, and identification
requirements.
(viii) The procedures of the component whereby an individual can be
notified on how to gain access to any record pertaining to such
individual that may be contained in the system of records, and how to
contest its content; and
(ix) The categories of sources of records in the system. (See 5
U.S.C. 552a(e)(4))
(b) Notice of new or modified routine uses to be published in the
Federal Register. At least 30 days prior to a new use or modification of
a routine use, as published under paragraph (a)(3)(iv) of this section,
each component shall publish in the Federal Register notice of such new
or modified use of the information in the system and provide an
opportunity for interested persons to submit written data, views, or
arguments to the components. (See 5 U.S.C. 552a(e)(11))
(c) Promulgation of rules exempting systems from certain
requirements--(1) General exemptions. In accordance with existing
procedures applicable to a Treasury component's issuance of regulations,
the head of each such component may adopt rules, in accordance with the
requirements (including general notice) of 5 U.S.C. 553 (b) (1), (2),
and (3), (c) and (e), to exempt any system of records within the
component from any part of 5 U.S.C. 552a and these regulations except
subsections (b) (sec. 1.24, conditions of disclosure), (c)(1) (sec.
1.25, keep accurate accounting of disclosures), (c)(2) (sec. 1.25,
retain accounting for five years or life of record), (e)(4) (A) through
(F) (paragraph (a) of this section, publication of annual notice of
systems of records), (e)(6) (sec. 1.22(d), accuracy of records prior to
dissemination), (e)(7) (sec. 1.22(e), maintenance of records on First
[[Page 40]]
Amendment rights), (e)(9) (sec. 1.28, establish rules of conduct),
(e)(10) (sec. 1.22(d)(3), establish safeguards for records), (e)(11)
(paragraph (c) of this section, publish new intended use), and (i) (sec.
1.28(c), criminal penalties) if the systems of records maintained by the
component which performs as its principal function any activity
pertaining to the enforcement of criminal laws, including police efforts
to prevent, control, or reduce crime or to apprehend criminals, and the
activities of prosecutors, courts, correctional, probation, pardon, or
parole authorities, and which consists of:
(i) 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;
(ii) Information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, and
associated with an identifiable individual; or
(iii) 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. (See 5 U.S.C. 552a(j))
(2) Specific exemptions. In accordance with existing procedures
applicable to a Treasury component's issuance of regulations, the head
of each such component may adopt rules, in accordance with the
requirements (including general notice) of 5 U.S.C. 553 (b) (1), (2),
and (3), (c), and (e), to exempt any system of records within the
component from 5 U.S.C. 552a(c)(3) (sec. 1.25(c)(2), accounting of
certain disclosures available to the individual), (d) (sec. 1.26(a),
access to records), (e)(1) (sec. 1.22(a)(1), maintenance of information
to accomplish purposes authorized by statute or executive order only),
(e)(4)(G) (paragraph (a)(7) of this section, publication of procedures
for notification), (e)(4)(H) (paragraph (a)(8) of this section,
publication of procedures for access and contest), (e)(4)(I) (paragraph
(a)(9) of this section, publication of sources of records), and (f)
(sec. 1.26, promulgate rules for notification, access and contest), if
the system of records is:
(i) Subject to the provisions of 5 U.S.C. 552(b)(1);
(ii) Investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection (j)(2) of 5 U.S.C.
552a and paragraph (a)(1) of this section. If any individual is denied
any right, privilege, or benefit that such individual would otherwise be
entitled to by Federal law, or for which such individual would otherwise
be eligible, as a result of the maintenance of this material, such
material shall be provided to the individual, except to the extent that
the disclosure of the 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 of the
source would be held in confidence;
(iii) Maintained in connection with providing protective services to
the President of the United States or other individuals pursuant to 18
U.S.C. 3056;
(iv) Required by statute to be maintained and used solely as
statistical records;
(v) 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, 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 of the source would be
held in confidence;
(vi) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the Federal
service the disclosure of which would compromise the objectivity or
fairness of the testing or examination process; or
(vii) Evaluation material used to determine potential for promotion
in the armed services, but only to the extent that the disclosure of
such material would reveal the identity of a source
[[Page 41]]
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 of the
source would be held in confidence.
(3) At the time that rules under this subsection are adopted, the
head of the component shall include in the statement required under 5
U.S.C. 553(c) the reasons why the system of records is to be exempted
from a provision of 5 U.S.C. 552a and this part. (See 5 U.S.C. 552a (j)
and (k))
(d) Review and report to OMB. The Department shall ensure that the
following reviews are conducted as often as specified below by each of
the components who shall be prepared to report to the Departmental
Disclosure Branch upon request the results of such reviews and any
corrective action taken to resolve problems uncovered. Each component
shall:
(1) Review every two years a random sample of the component's
contracts that provide for the maintenance of a system of records on
behalf of the component to accomplish a function of the component, in
order to ensure that the working of each contract makes the provisions
of the Act apply. (5 U.S.C. 552a(m)(1))
(2) Review annually component's recordkeeping and disposal policies
and practices in order to assure compliance with the Act.
(3) Review routine use disclosures every 3 years, that are
associated with each system of records in order to ensure that the
recipient's use of such records continues to be compatible with the
purpose for which the disclosing agency originally collected the
information.
(4) Review every three years each system of records for which the
component has issued exemption rules pursuant to section (j) or (k) of
the Privacy Act in order to determine whether the exemption is needed.
(5) Review annually each ongoing matching program in which the
component has participated during the year, either as a source or as a
matching agency in order to assure that the requirements of the Act, the
OMB Matching Guidelines, and the OMB Model Control System and checklist
have been met.
(6) Review component's training practices annually to ensure that
all component personnel are familiar with the requirements of the Act,
these regulations and Departmental directives.
(7) Review annually the actions of component personnel that have
resulted either in the agency being found civilly liable under section
(g) of the Act, or an employee being found criminally liable under the
provisions of section (i) of the Act, in order to determine the extent
of the problem and to prevent future recurrences.
(8) Review annually each system of records notice to ensure that it
accurately describes the system. Where minor changes are needed, publish
an amended notice in the Federal Register. Minor changes shall be
consolidated in one annual comprehensive publication. The term ``minor
change to a system of records'' means a change that does not
significantly change the system. More specifically, a minor change does
not affect the character or purpose of the system and does not affect
the ability of an individual to gain access to a record about the
individual or to any information pertaining to such individual which is
contained in the system; for example, changing the title of the system
manager or the location of the system.
Sec. 1.24 Disclosure of records to person other than the individual to whom they pertain.
(a) Conditions of disclosure. No component of Treasury shall
disclose any record which is contained in a system of records maintained
by it by any means of communication to any person, or to another agency,
except pursuant to a written request by, or with the prior written
consent of, the individual to whom the record pertains, or the parent,
if a minor, or legal guardian, if incompetent, of such individual,
unless disclosure of the record would be:
(1) To those offices and employees of the Department of the Treasury
who have a need for the record in the performance of their duties;
(2) Retired under 5 U.S.C. 552 (subpart A of this part);
[[Page 42]]
(3) For a routine use as defined in 5 U.S.C. 552a(a)(7) and
Sec. 1.21(g) and as described under 5 U.S.C. 552a(e)(4)(D) and
Sec. 1.23(a)(4);
(4) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to the provisions of
title 13 of the U.S. Code;
(5) To a recipient who has provided the component with advance
adequate written assurance that the record will be used solely as a
statistical research or reporting record, and the record is to be
transferred in a form that is not individually identifiable;
(6) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Administrator of General Services or the designee of such official to
determine whether the record has such value;
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity.
(i) If the activity is authorized by law; and
(ii) If the head of the agency or instrumentality has made a written
request to the Department of the Treasury specifying the particular
portion desired and the law enforcement activities for which the record
is sought;
(8) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual, if upon such
disclosure, notification is transmitted to the last known address of
such individual;
(9) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee.
(10) To the Comptroller General, or the authorized representatives
of such official, in the course of the performance of the duties of the
General Accounting Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(See 5 U.S.C. 552a(b))
Sec. 1.25 Accounting of disclosures.
(a) Accounting of certain disclosures. Each component, with respect
to each system of records under its control, shall:
(1) Keep an accurate accounting of: (i) The date, nature, and
purpose of each disclosure of a record to any person or to an agency
made under 5 U.S.C. 552a (b) and Sec. 1.24; and (ii) the name and
address of the person or agency to whom the disclosure is made;
(2) Retain the accounting made under paragraph (a)(1) of this
section for at least five years or the life of the record, whichever is
longer, after the disclosure for which the accounting is made; and
(3) Inform any person or other agency about any correction or
notation of dispute made by the constitutent unit in accordance with 5
U.S.C. 552a (d) and Sec. 1.28 of any record that has been disclosed to
the person or agency if an accounting of the disclosure was made. (See 5
U.S.C. 552(c).)
(b) Accounting systems. To permit the accounting required by
paragraph (a) of this section, system managers, with the approval of the
head of their offices within a component, shall establish or implement,
a system of accounting for all disclosures of records, either orally or
in writing, made outside the Department of the Treasury. Accounting
records shall:
(1) Be established in the least expensive and most convenient form
that will permit the system manager to advise individuals, promptly upon
request, what records concerning them have been disclosed and to whom:
(2) Provide, as a minimum, the identification of the particular
record disclosed, the name and address of the person or agency to whom
or to whom or to which disclosed, and the date, nature and purpose of
the disclosure; and
(3) Be maintained for 5 years or until the record is destroyed or
transferred to the National Archives and Records Service for storage in
records centers, in which event, the accounting pertaining to those
records, unless maintained separately, shall be transferred with the
records themselves.
(c) Exemptions from accounting requirements. No accounting is
required for disclosure of records:
[[Page 43]]
(1) To those officers and employees of the Department of the
Treasury who have a need for the record in the performance of their
duties; or
(2) If disclosure would be required under 5 U.S.C. 552 and Subpart A
of this part.
(d) Access to accounting by individual. (1) Subject to paragraphs
(c) and (d)(2) of this section, each component shall establish and set
forth in the appendix to this subpart applicable to the component,
procedures for making the accounting required under paragraph (a) of
this section available to the individual to whom the record pertains and
shall thereafter make such accounting available in accordance therewith
at the request of the individual. The procedures may require the
requester to provide reasonable identification.
(2) Access accountings of disclosure may be withheld from the
individual named in the record only if the disclosures were (i) made
under 5 U.S.C. 552a (b)(7) and Sec. 1.24 (a)(7), or (ii) under a system
of records exempted from the requirements of 5 U.S.C. 552a(c)(3) in
accordance with 5 U.S.C. 552 (j) or (k) and Sec. 1.23(c). (See 5 U.S.C.
552a(c))
Sec. 1.26 Procedures for notification and access to records pertaining to individuals--format and fees for request for access.
(a) Procedures for notification and access. Each component shall
establish, in accordance with the requirements of 5 U.S.C. 553, and set
forth in the appendix to this subpart applicable to such component
procedures whereby an individual can be notified, in response to a
request, if any system of records named by the individual contains a
record pertaining to that individual. In addition, such procedures shall
set forth the requirements for access to such records. As a minimum such
procedures shall specify the times during, and the places at which
access will be accorded, together with such identification as may be
required of the individual before access. (See 5 U.S.C. 552a(f) (1), (2)
and (3))
(b) Access. Each component in accordance with the procedures
prescribed under paragraph (a) of this section, shall allow an
individual to gain access to records or to any information pertaining to
such individual which is contained in the system of records upon
request. The individual shall be permitted to review the record and have
a copy made of all or any portion of the record in a form that is
comprehensible. The individual will also be permitted to be accompanied
by any person of the individual's choosing to review the record, except
that the agency may require the individual to furnish a written
statement authorizing discussion of that individual's record in the
accompanying person's presence. (See 5 U.S.C. 552a(d)(1))
(c) Exceptions. Neither the procedures prescribed under paragraph
(a) of this section nor the requirements for access under paragraph (b)
of this section shall be applicable to--(1) systems of records exempted
pursuant to 5 U.S.C. 552a (j) and (k) and Sec. 1.23(c); (2) information
compiled in reasonable anticipation of a civil action or proceeding (See
5 U.S.C. 552(d)(5)); or (3) information pertaining to an individual
which is contained in, and inseparable from, another individual's
record.
(d) Format of request. (1) A record for notification of whether a
record exists shall:
(i) Be made in writing and signed by the person making the request,
who must be the individual about whom the record is maintained, or such
individual's duly authorized representative (See Sec. 1.34);
(ii) State that it is made pursuant to the Privacy Act, 5 U.S.C.
552a or these regulations, have marked ``Privacy Act Request'' on the
request and on the envelope;
(iii) Give the name of the system or subsystem or categories of
records to which access is sought, as specified in ``Privacy Act
Issuances'' published by the Office of the Federal Register and
referenced in the appendices to this subpart;
(iv) Describe the nature of the record(s) sought in sufficient
detail to enable Department personnel to locate the system of records
containing the record with a reasonable amount of effort. Whenever
possible, a request for access should describe the nature of the record
sought, the date of the record or the period in which the record was
compiled.
[[Page 44]]
(v) Provide such identification of the requester as may be specified
in the appropriate appendix to this subpart; and
(vi) Be addressed or delivered in person to the office or officer of
the component indicated for the particular system or subsystem or
categories of records the individual wishes access to, as specified in
``Privacy Act Issuances'' published by the Office of the Federal
Register and referenced in the appendices to this subpart. Assistance in
ascertaining the appropriate component or in preparing a request for
notification may be obtained by a written request to this effect
addressed as specified in Appendix A of this part, as the address for
the Departmental Offices for ``Request for notification and access to
records and accountings of disclosures''.
(2) A request for access to records shall, in addition to complying
with paragraph (a)(1)(i) through (vi) of this section:
(i) State whether the requester wishes to inspect the records or
desires to have a copy made and furnished without first inspecting them;
(ii) If the requester desires to have a copy made, state the firm
agreement of the requester to pay the fees for duplication ultimately
determined in accordance with (31 CFR 1.6) Subpart A of this title,
unless such fees are waived pursuant to that section by the system
manager or other appropriate official as indicated in the appropriate
appendix to these regulations; and
(iii) Comply with any other requirement set forth in the applicable
appendix to this subpart or the ``Notice of Records Systems'' applicable
to the system in question. Requesters are hereby advised that any
request for access which does not comply with the foregoing requirements
and those set forth elsewhere in this Subpart C, will not be deemed
subject to the time constraints of this section, unless and until
amended so as to comply. However, components shall advise the requester
in what respect the request is deficient so that it may be processed.
This section applies only to records which are contained in a system of
records and which are in the possession or control of the component.
(See 5 U.S.C. 552a (d) and (f))
(e) Requests for records not in control of component. (1) Treasury
employees shall make reasonable efforts to assist an oral requester to
ascertain to which office or officer a written request should be sent.
When the request is for a record which is not in the possession or
control of any component of the Department of the Treasury, the
requester shall be so advised.
(2) Where the record requested was created by a Department or agency
other than the Department of the Treasury or a component of the
Department and has been classified (e.g. National Defense or
Intelligence Information) or otherwise restrictively endorsed (e.g.
Office of Personnel Management records of FBI reports) by such other
Department or agency, and a copy is in the possession of a component of
the Department of the Treasury, that portion of the request shall be
referred to the originating agency for determination as to all issues in
accordance with the Privacy Act. In the case of a referral to another
agency under this paragraph, the requester shall be notified that such
portion of the request has been so referred and that the requester may
expect to hear from that agency.
(3) When information sought from a system manager or other
appropriate official in the Department of the Treasury includes
information furnished by other Federal agencies not classified or
otherwise restrictively endorsed, the system manager or other
appropriate official receiving the request shall consult with the
appropriate agency prior to making a decision to disclose or not to
disclose the record. The decision as to whether the record shall be
disclosed shall be made, in the first instance by the system manager or
other appropriate official maintaining the record. (See 5 U.S.C. 552a
(d) and (f))
(f) Date of receipt of request. A request for notification or access
to records shall be considered to have been received for purposes of
this subpart on the date on which the requirements of paragraph (d) of
this section have been satisfied. Requests for notification or access to
records and any separate agreement to pay shall be stamped or endorsed
with the date of receipt by
[[Page 45]]
the receiving office. The latest of such stamped dates will be deemed to
be the date of receipt of the request for the purposes of this subpart.
(See 5 U.S.C. 552a (d) and (f))
(g) Notification of determination--(1) In general. Notification of
determinations as to notification of whether a record exists or as to
whether to grant access to records requested will be made by the
officers designated in the appendices to this subpart. The notification
of the determination shall be mailed within 30 days (excluding
Saturdays, Sundays and legal public holidays) after the date of receipt
of the request, as determined in accordance with paragraph (f) of this
section. If it is not possible to respond within 30 days, the designated
officer shall inform the requester, stating the reason for the delay
(e.g. volume of records requested, scattered location of the records,
need to consult other agencies, or the difficulty of the legal issues
involved) and when a response will be dispatched. (See 5 U.S.C. 552a (d)
and (f))
(2) Granting of access. When it has been determined that the request
for access will be granted--(i) and a copy requested; such copy in a
form comprehensible to the requester shall be furnished promptly,
together with a statement of the applicable fees for duplication; and
(ii) and the right to inspect has been requested, the requester shall be
promptly notified in writing of the determination, and when and where
the requested records may be inspected. An individual seeking to inspect
such records may be accompanied by another person of such individual's
choosing. The individual seeking access shall be required to sign the
required form indicating that the Department of the Treasury is
authorized to discuss the contents of the subject record in the
accompanying person's presence. If, after making the inspection, the
individual making the request desires a copy of all or a portion of the
requested records, such copy in a form comprehensible to the individual
shall be furnished upon payment of the applicable fees for duplication.
Fees to be charged are as prescribed by 31 CFR part 1, Subpart A,
Sec. 1.6 Fees shall not be charged where they would amount, in the
aggregate, to less than $3.00. (See 5 U.S.C. 552a (d) and (f))
(3) Requirements for access to medical records. When access is
requested to medical records, including psychological records, the
responsible official may determine that such release could have an
adverse effect on the individual and that release will be made only to a
physician authorized in writing to have access to such records by the
individual making the request. Upon receipt of the authorization the
physician will be permitted to review the records or to receive copies
of the records by mail, upon proper verification of identity. (See 5
U.S.C. 552a (f) (3))
(4) Denial of request. When it is determined that the request for
notification of whether a record exists or access to records will be
denied (whether in whole or part or subject to conditions or
exceptions), the person making the request shall be so notified by mail
in accordance with paragraph (g)(1) of this section. The letter of
notification shall specify the city or other location where the
requested records are situated (if known), contain a statement of the
reasons for not granting the request as made, set forth the name and
title or position of the responsible official and advise the individual
making the request of the right to file suit in accordance with 5 U.S.C.
552a (g)(1)(B).
(5) Prohibition against the use of 5 U.S.C. 552 (b) exemptions.
Exemptions from disclosure under 5 U.S.C. 552 (b) (31 CFR part 1,
Subpart A, Sec. 1.2 (c)), may not be invoked for the purpose of
withholding from an individual any record which is otherwise accessible
to such individual under the Privacy Act, 5 U.S.C. 552a and this
subpart. (See 5 U.S.C. 552a (q))
(6) Records exempt in whole or in part. (i) When an individual
requests notification as to whether a record exists or access to records
concerning the individual which have been exempted from individual
access pursuant to 5 U.S.C. 552a (j) or which have been compiled in
reasonable anticipation of a civil action or proceeding in either a
court or before an administrative tribunal and the assertion of the
exemption is deemed necessary, the Department of the Treasury will
neither confirm nor
[[Page 46]]
deny the existence of the record but shall advise the individual only
that no record available to the individual pursuant to the Privacy Act
of 1974 has been identified.
(ii) Requests from individuals for access to records which have been
exempted from access pursuant to 5 U.S.C. 552a (k) shall be processed as
follows:
(A) Requests for information classified pursuant to Executive Order
11652 require the responsible component of the Department to review the
information to determine whether it continues to warrant classification
under the criteria of sections 1 and 5 (B), (C), (D) and (E) of the
Executive order. Information which no longer warrants classification
under these criteria shall be declassified and made available to the
individual. If the information continues to warrant classification, the
individual shall be advised that the information sought is classified,
that it has been reviewed and continues to warrant classification, and
that it has been exempted from access pursuant to 5 U.S.C. 552 (b)(1)
and 5 U.S.C. 552a (k)(1). Information which has been exempted pursuant
to 5 U.S.C. 552a (j) and which is also classified shall be reviewed as
required by this paragraph but the response to the individual shall be
in the form prescribed by paragraph (g)(6)(i) of this section.
(B) Requests for information which has been exempted from disclosure
pursuant to 5 U.S.C. 552a (k)(2) shall be responded to in the manner
provided in paragraph (g)(6)(i) of this section unless the requester
shows that the information has been used or is being used to deny the
individual any right, privilege or benefit for which he is eligible or
to which he would otherwise be entitled under federal law. In that
event, the individual shall be advised of the existence of the
information but such information as would identify a confidential source
shall be extracted or summarized in a manner which protects the source
to the maximum degree possible and the summary extract shall be provided
to the requesting individual.
(C) Information compiled as part of an employee background
investigation which has been exempted pursuant to 5 U.S.C. 552a (k)(5)
shall be made available to an individual upon request except to the
extent that it identifies the confidential source. Material identifying
the confidential sources shall be extracted or summarized in a manner
which protects the source to the maximum degree possible and the summary
or extract shall be provided to the requesting individual.
(D) Testing or examination material which has been exempted pursuant
to 5 U.S.C. 552a (k)(6) shall not be made available to an individual if
disclosure would compromise the objectivity or fairness of the testing
or examination process; but may be made available if no such compromise
possibility exists. (See 5 U.S.C. 552a (d)(5), (j) and (k)).
Sec. 1.27 Procedures for amendment of records pertaining to individuals--format, agency review and appeal from initial adverse agency determination.
(a) In general. Subject to the application of exemptions promulgated
by the head of each component, in accordance with Sec. 1.23(c), and
subject to Sec. 1.27(f), each component of the Department of the
Treasury, shall in conformance with 5 U.S.C. 552a(d)(2), permit an
individual to request amendment of a record pertaining to such
individual. Any request for amendment of records or any appeal that does
not fully comply with the requirements of this section and any
additional specific requirements imposed by the component in the
applicable appendix to this subpart will not be deemed subject to the
time constraints of paragraph (e) of this section, unless and until
amended so as to comply. However, components shall advise the requester
in what respect the request or appeal is deficient so that it may be
resubmitted or amended. (See 5 U.S.C. 552a (d) and (f))
(b) Form of request to amend records. In order to be subject to the
provisions of this section, a request to amend records shall:
(1) Be made in writing and signed by the person making the request,
who must be the individual about whom the record is maintained, or the
duly authorized representative of such individual;
(2) State that it is made pursuant to the Privacy Act, 5 U.S.C. 552a
or these
[[Page 47]]
regulations, have marked ``Privacy Act Amendment Request'' on the
request and on the envelope;
(3) Be addressed to the office or officer of the component specified
for such purposes in ``Privacy Act Issuances'' published by the Office
of the Federal Register and referenced in the appendices to this subpart
for that purpose; and
(4) Reasonably describe the records which the individual desires to
have amended, including, to the best of the requester's knowledge, dates
of letters requesting access to such records previously and dates of
letters in which notification concerning access was made, if any, and
the individual's documentation justifying the correction. (See U.S.C.
552a (d) and (f))
(c) Date of receipt of request. A request for amendment of records
pertaining to an individual shall be deemed to have been received for
purposes of this subpart when the requirements of paragraph (b) of this
section have been satisfied. The receiving office or officer shall stamp
or otherwise endorse the date of receipt of the request. (See 5 U.S.C.
552a (d) and (f))
(d) Review of requests to amend records. Officials responsible for
review of requests to amend records pertaining to an individual, as
specified in the appropriate appendix to this subpart, shall:
(1) Not later than 10 days (excluding Saturdays, Sundays, and legal
public holidays) after the date of receipt of such request, acknowledge
in writing such receipt; and
(2) Promptly, either--(i) Make any correction of any portion which
the individual believes and the official agrees is not accurate,
relevant, timely, or complete; or
(ii) Inform the individual of the refusal to amend the record in
accordance with the individual's request, the reason for the refusal,
and the name and business address of the officer designated in the
applicable appendix to this subpart, as the person who is to review such
refusal. (See 5 U.S.C. 552a (d) and (f))
(e) Administrative appeal--(1) In general. Each component shall
permit individuals to request a review of initial decisions made under
paragraph (d) of this section, when an individual disagrees with a
refusal to amend this record. (See 5 U.S.C. 552a (d), (f), and (g)(1))
(2) Form of request for administrative review of refusal to amend
record. At any time within 35 days after the date of the notification of
the initial decision described in paragraph (d)(2)(ii) of this section,
the requester may submit an administrative appeal from such refusal to
the official specified in the notification of the initial decision and
the appropriate appendix to this subpart. The appeal shall:
(i) Be made in writing stating any arguments in support thereof and
be signed by the person to whom the record pertains, or the duly
authorized representative of such official;
(ii) Be addressed to and mailed or hand delivered within 35 days of
the date of the initial decision, to the office or officer specified in
the appropriate appendix to this subpart and in the notification. (See
the appendices to this subpart for the address to which appeals made by
mail should be addressed);
(iii) Have clearly marked on the appeal and on the envelope,
``Privacy Act Amendment Appeal'';
(iv) Reasonably describe the records requested to be amended; and
(v) Specify the date of the initial request, to amend records, and
the date of the letter giving notification that the request was denied.
(See 5 U.S.C. 552a (d) and (f))
(3) Date of receipt. Appeals shall be promptly stamped with the date
of their receipt by the office to which addressed and such stamped date
will be deemed to be the date of receipt for all purposes of this
subpart. The receipt of the appeal shall be acknowledged within 10 days
(excluding Saturdays, Sundays, and legal public holidays) from the date
of the receipt (unless the determination on appeal is dispatched in 10
days, in which case, no acknowledgement is required) by the responsible
official and the requester advised of the date of receipt established by
the foregoing and when a response is due in accordance with this
paragraph. (See 5 U.S.C. 552a (d) and (f))
(4) Review of administrative appeals from denial of requests to
amend records.
[[Page 48]]
Officials responsible for deciding administrative appeals from denials
of requests to amend records pertaining to an individual, as specified
in the appendices to this subpart shall: Complete the review, and notify
the requester of the final agency decision within 30 days (exclusive of
Saturdays, Sundays and legal public holidays) after the date of receipt
of such appeal, unless the time is extended by the head of the agency or
the delegate of such official, for good cause shown. If such final
agency decision is to refuse to amend the record, in whole or in part,
the requester shall also be advised of the right--(i) to file a concise
``Statement of Disagreement'' setting forth the reasons for his
disagreement with the decision which shall be filed within 35 days of
the date of the notification of the final agency decision and (ii) to
judicial review of the final agency decision under 5 U.S.C.
552a(g)(1)(A). (See 5 U.S.C. 552a (d), (f) and (g)(1))
(5) Notation on record and distribution of statements of
disagreement. The system manager is responsible, in any disclosure
containing information about which an individual has filed a ``Statement
of Disagreement'', occurring after the filing of the statement under
paragraph (e)(4) of this section, for clearly noting any portion of the
record which is disputed and providing copies of the statement and, if
deemed appropriate, a concise statement of the component's reasons for
not making the amendments requested to persons or other agencies to whom
the disputed record has been disclosed. (See 5 U.S.C. 552a(d)(4))
(f) Records not subject to correction under the Privacy Act. The
following records are not subject to correction or amendment by
individuals:
(1) Transcripts or written statements made under oath; and
(2) Transcripts of Grand Jury proceedings, judicial or quasi-
judicial proceedings which form the official record of those
proceedings; and
(3) Pre-sentence reports comprising the property of the courts but
maintained in agency files; and
(4) Records pertaining to the determination, the collection and the
payment of the Federal taxes; and
(5) Records duly exempted from correction by notice published in the
Federal Register; and
(6) Records compiled in reasonable anticipation of a civil action or
proceeding.
Sec. 1.28 Training, rules of conduct, penalties for non-compliance.
(a) Training. Subject to policy guidance and regulations issued by
the Deputy Secretary, who has Departmentwide responsibility therefor,
each component shall institute a training program to instruct employees
and employees of Government contractors covered by 5 U.S.C. 552a(m), who
are involved in the design, development, operation or maintenance of any
system of records, on a continuing basis with respect to the duties and
responsibilities imposed on them and the rights conferred on individuals
by the Privacy Act, the regulations in this subpart, including the
appendices thereto, and any other related regulations. Such training
shall provide suitable emphasis on the civil and criminal penalties
imposed on the Department and the individual employees by the Privacy
Act for non-compliance with specified requirements of the Act as
implemented by the regulations in this subpart. (See 5 U.S.C.
552a(e)(9))
(b) Rules of conduct. In addition, to the Standards of Conduct
published in part O of this title, particularly 31 CFR 0.735-44, the
following are applicable to employees of the Department of the Treasury
(including, to the extent required by the contract or 5 U.S.C. 552a(m),
Government contractors and employees of such contractors), who are
involved in the design, development, operation or maintenance of any
system of records, or in maintaining any records, for or on behalf of
the Department, including any component thereof.
(1) The head of each office of a component of the Department shall
be responsible for assuring that employees subject to such official's
supervision are advised of the provisions of the Privacy Act, including
the criminal penalties and civil liabilities provided therein, and the
regulations in this subpart, and that such employees are
[[Page 49]]
made aware of their individual and collective responsibilities to
protect the security of personal information, to assure its accuracy,
relevance, timeliness and completeness, to avoid unauthorized disclosure
either orally or in writing, and to insure that no information system
concerning individuals, no matter how small or specialized is maintained
without public notice.
(2) Employees of the Department of the Treasury involved in the
design, development, operation, or maintenance of any system of records,
or in maintaining any record shall:
(i) Collect no information of a personal nature from individuals
unless authorized to collect it to achieve a function or carry out a
responsibility of the Department;
(ii) Collect from individuals only that information which is
necessary to Department functions or responsibilities, unless related to
a system exempted under 5 U.S.C. 552a (j) or (k):
(iii) Collect information, wherever possible, directly from the
individual to whom it relates, unless related to a system exempted under
5 U.S.C. 552a(j);
(iv) Inform individuals from whom information is collected about
themselves of the authority for collection, the purposes thereof, the
use that will be made of the information, and the effects, both legal
and practical, of not furnishing the information. (While this provision
does not explicitly require it, where feasible, third party sources
should be informed of the purposes for which information they are asked
to provide will be used.);
(v) Neither collect, maintain, use nor disseminate information
concerning an individual's religious or political beliefs or activities
or membership in associations or organizations, unless (A) the
individual has volunteered such information for the individual's own
benefits; (B) the information is expressly authorized by statute to be
collected, maintained, used or disseminated; or (C) the activities
involved are pertinent to and within the scope of an authorized
investigation, adjudication or correctional activity;
(vi) Advise their supervisors of the existence or contemplated
development of any record system which is capable of retrieving
information about individuals by individual identifier;
(vii) Disseminate no information concerning individuals outside the
Department except when authorized by 5 U.S.C. 552a or pursuant to a
routine use published in the Federal Register;
(viii) Assure that an accounting is kept in the prescribed form, of
all dissemination of personal information outside the Department,
whether made orally or in writing, unless disclosed under 5 U.S.C. 552
and subpart A of this part;
(ix) Maintain and process information concerning individuals with
care in order to insure that no inadvertent disclosure of the
information is made either within or without the Department; and
(x) Assure that the proper Department authorities are aware of any
information in a system maintained by the Department which is not
authorized to be maintained under the provisions of the Privacy Act of
1974, including information on First Amendment Activities, information
that is inaccurate, irrelevant or so incomplete as to risk unfairness to
the individual concerned.
(3) Heads of components within the Department or their delegates
shall, at least annually, review the record systems subject to their
supervision to insure compliance with the provisions of the Privacy Act
of 1974 and the regulations in this subpart. (See 5 U.S.C. 552a (e)(9),
(i) and (m))
(c) Criminal penalties. (1) The Privacy Act imposes criminal
penalties on the conduct of Government officers or employees as follows:
Any officer or employee of an agency (which term includes the Department
of the Treasury):
(i) Who by virtue of the official's employment or official position,
has possession of, or access to, agency records which contain
individually identifiable information the disclosure of which is
prohibited by this section (5 U.S.C. 552a) or regulations established
thereunder, and who knowing that disclosure of the specific material is
so prohibited, willfully discloses the material in any manner to any
person or agency not entitled to receive it, or
[[Page 50]]
(ii) Who willfully maintains a system of records without meeting the
notice requirements of paragraph (e)(4) of this section (5 U.S.C.
552a)--shall be guilty of a misdemeanor and fined not more than $5,000.
(2) The Act also imposes a collateral criminal penalty on the
conduct of any person as follows:
``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.''
(3) For the purposes of 5 U.S.C. 552a (i), the provisions of
paragraph (c)(1) of this section are applicable to Government
contractors and employees of such contractors who by contract, operate
by or on behalf of the Department of the Treasury a system of records to
accomplish a Departmental function. Such contractor and employees are
considered employees of the Department of the Treasury for the purposes
of 5 U.S.C. 552a(i). (See 5 U.S.C. 552a (i) and (m).)
Sec. 1.29 Records transferred to Federal Records Center or National Archives of the United States.
(a) Records transferred to the Administrator of General Services for
storage in the Federal Records Center. Records pertaining to an
identifiable individual which are transferred to the Federal Records
Center in accordance with 44 U.S.C. 3103 shall, for the purposes of the
Privacy Act, 5 U.S.C. 552a, be considered to be maintained by the
component which deposited the record and shall be subject to the
provisions of the Privacy Act and this subpart. The Administrator of
General Services shall not disclose such records except to the
Department of the Treasury or to others under rules consistent with the
Privacy Act which may be established by the Department of the Treasury
or a component. If such records are retrieved for the purpose of making
a determination about an individual, they must be reviewed for accuracy,
relevance, timeliness, and completeness.
(b) Records transferred to the National Archives of the United
States. (1) Records transferred to National Archives prior to September
27, 1975. Records pertaining to an identifiable individual transferred
to the National Archives prior to September 27, 1975, as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government shall be considered to be
maintained by the National Archives, and
(i) Shall not be subject to 5 U.S.C. 552a,
(ii) Except, that a statement describing such records [modeled after
5 U.S.C. 552a (e)(4) (A) through (G)] shall be published in the Federal
Register.
(2) Records transferred to National Archives on or after September
27, 1975. Records pertaining to an identifiable individual transferred
to the National Archives as a record which has sufficient historical or
other value to warrant its continued preservation by the United States
Government, on or after September 27, 1975, shall be considered to be
maintained by the National Archives, and
(i) Shall not be subject to 5 U.S.C. 552a,
(ii) Except, that a statement describing such records in accordance
with 5 U.S.C. 552a (e)(4) (A) through (G) shall be published in the
Federal Register and rules of conduct and training in accordance with 5
U.S.C. 552 (e) (9) are to be established by the National Archives. (See
5 U.S.C. 552a (e))
Sec. 1.30 Application to system of records maintained by Government contractors.
When a component contracts for the operation of a system of records,
to accomplish a Departmental function, the provisions of the Privacy
Act, 5 U.S.C. 552a, and this subpart shall be applicable to such system.
The component shall have responsibility for insuring that the contractor
complies with the contract requirements relating to privacy.
Sec. 1.31 Sale or rental of mailing lists.
(a) In general. An individual's name and address shall not be sold
or rented by a component unless such action is specifically authorized
by law.
(b) Withholding of names and addresses. This section shall not be
construed to require the withholding of names
[[Page 51]]
and addresses otherwise permitted to be made public. (See 5 U.S.C. 552a
(n)).
Sec. 1.32 Use and disclosure of social security numbers.
(a) In general. An individual shall not be denied any right,
benefit, or privilege provided by law by a component because of such
individual's refusal to disclose his social security number.
(b) Exceptions. The provisions of paragraph (a) of this section
shall not apply with respect to:
(1) Any disclosure which is required by Federal statute, or
(2) The disclosure of a social security number to any Federal,
State, or local agency maintaining a system of records in existence and
operating before January 1, 1975, if such disclosure was required under
statute or regulation adopted prior to such date to verify the identity
of an individual.
(c) Requests for disclosure of social security number. Any component
which requests an individual to disclose his or her social security
account number shall inform that individual whether:
(1) Disclosure is mandatory or voluntary.
(2) By what statutory or other authority such number is solicited,
and
(3) What uses will be made of it. (See section 7 of the Privacy Act
of 1974 set forth at 5 U.S.C. 552a, note.)
Sec. 1.34 Guardianship.
The parent or guardian of a minor or a person judicially determined
to be incompetent shall, in addition to establishing the identity of the
minor or other person represented, establish parentage or guardianship
by furnishing a copy of a birth certificate showing parentage or a court
order establishing the guardianship and may thereafter, act on behalf of
such individual. (See 5 U.S.C. 552a (h))
Sec. 1.35 Information forms.
(a) Review of forms. Except for forms developed and used by
constituent units, the Deputy Assistant Secretary for Administration
shall be responsible for reviewing all forms developed and used by the
Department of the Treasury to collect information from and about
individuals. The heads of components shall each be responsible for the
review of forms used by such component to collect information from and
about individuals.
(b) Scope of review. The responsible officers shall review each form
for the purpose of eliminating any requirement for information that is
not relevant and necessary to carry out an agency function and to
accomplish the following objectives;
(1) To insure that no information concerning religion, political
beliefs or activities, association memberships (other than those
required for a professional license), or the exercise of First Amendment
rights is required to be disclosed unless such requirement of disclosure
is expressly authorized by statute or is pertinent to, and within the
scope of, any authorized law enforcement activity;
(2) To insure that the form or a separate form that can be retained
by the individual makes clear to the individual which information he is
required by law to disclose and the authority for that requirement and
which information is voluntary;
(3) To insure that the form or a separate form that can be retained
by the individual states clearly the principal purpose or purposes for
which the information is being collected, and summarizes concisely the
routine uses that will be made of the information;
(4) To insure that the form or a separate form that can be retained
by the individual clearly indicates to the individual the effect in
terms of rights, benefits or privileges of not providing all or part of
the requested information; and
(5) To insure that any form requesting disclosure of a Social
Security Number, or a separate form that can be retained by the
individual, clearly advises the individual of the statute or regulation
requiring disclosure of the number or clearly advises the individual
that disclosure is voluntary and that no consequence will follow from
the refusal to disclose it, and the uses that will be made of the number
whether disclosed mandatorily and voluntarily.
(c) Revision of forms. Any form which does not meet the objectives
specified in the Privacy Act and in this section, shall be revised to
conform thereto. A
[[Page 52]]
separate statement may be used in instances when a form does not
conform. This statement will accompany a form and shall include all the
information necessary to accomplish the objectives specified in the
Privacy Act and this section.
Sec. 1.36 Systems exempt in whole or in part from provisions of 5 U.S.C. 552a and this part.
In accordance with 5 U.S.C. 552a (j) and (k) and Sec. 1.23(c),
constituent units of the Department of the Treasury exempt the following
systems of records from certain provisions of the Privacy Act for the
reasons indicated:
Office of the Secretary
office of the general counsel
Notice exempting a system of records from requirements of the Privacy
Act
(a) In general. The General Counsel of the Treasury exempts the
system of records entitled ``Treasury Interagency Automated Litigation
System (TRIALS)'' from the provisions of subsections (c)(3), (d),
(e)(1), (e)(4)(G), (H) and (I), and (f) of 5 U.S.C. 552a. The manual
part of this system of records contains information or documents
relating to litigation or administrative proceedings involving or
concerning the Department or its officials, and includes pending, active
and closed files. The manual records consist of copies of pleadings,
investigative reports, information compiled in reasonable anticipation
of a civil action or proceeding, legal memoranda, and related
correspondence. Pleadings which have been filed with a court or
administrative tribunal are matters of public record and no exemption is
claimed as to them. The computerized part of the system contains summary
data on Treasury Department non-tax litigation and administrative
proceedings, e.g., plaintiff, defendant, attorney, witness, judge and/or
hearing officer names, type of case, relief sought, date, docket number,
pertinent dates, and issues. The purpose of the exemptions is to
maintain the confidentiality of investigatory materials compiled for law
enforcement purposes; information compiled in reasonable anticipation of
a civil action a proceeding is exempt from access under section (d)(5)
until the file is closed; thereafter section (k)(2) may apply in part to
the information. Legal memorandum and related correspondence contain no
personal information and are not subject to disclosure under section
552a. Determinations concerning whether particular information contained
in this system is exempt from disclosure will be made at the time a
request is received from an individual to gain access to information
pertaining to him.
(b) Authority. These rules are promulgated pursuant to the authority
vested in the Secretary of the Treasury by 5 U.S.C. 552a(k), and
pursuant to the authority vested in the General Counsel by 31 CFR
1.23(c).
(c) Name of system. Treasury Interagency Automated Litigation System
(TRIALS).
(d) Provisions from which exempted. This system contains records
described in 5 U.S.C. 552a(k), the Privacy Act of 1974. Exemption will
be claimed for such records only where appropriate from the following
provisions, subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I),
and (f) of 5 U.S.C. 552a.
(e) Reasons for claimed exemptions. Those sections would otherwise
require the Department to notify an individual of investigatory
materials maintained in a record pertaining to him, permit access to
such record, permit requests for its correction (section 552a(d),
(e)(4)(G), (H), and (f)); make available to him any required accounting
of disclosures made of the record (section 552a(c)(3)), publish the
sources of records in the system (section 552a(e)(4)(I)); and screen
records to insure that there is maintained only such information about
an individual as is relevant to accomplish a required purpose of the
Department (section 552a(e)(1)). The records compiled for the
prosecution or defense of civil litigation on behalf of the Department
or its officials contain investigatory materials compiled for litigation
purposes, together with memoranda concerning the applicable law, and
related correspondence. The use of investigatory material in court
proceedings is governed by due process and statutory
[[Page 53]]
procedural requirements. Informing individuals that they are on record
in a particular system enables such individuals to learn the nature of
the investigatory material and the evidentiary basis for prosecuting or
defending legal proceedings to which they are a party; furthermore, the
disclosure of certain investigatory material compiled for law
enforcement purposes may disclose investigative techniques and
procedures so that future law enforcement efforts would be hindered.
Access to an accounting of disclosures of such records would have a
similar detrimental effort upon the successful prosecution of legal
claims. In addition, screening for relevancy to Department purposes, and
correction or attempted correction of such materials could require
excessive amounts of time and effort on the part of all concerned.
Accordingly, the General Counsel finds that the public interest and
public policy in maintaining an effective legal services program
requires exemption from the stated sections of the Act to the extent
that they are applicable to appropriate materials in this system.
office of the inspector general
Notice exempting a system of records from the disclosure requirements of
the Privacy Act of 1974
(a) In general. The Office of the Inspector General, Department of
the Treasury exempts the system of records entitled, ``General
Allegations and Investigative Records'' from certain provisions of the
Privacy Act of 1974. The purpose of the exemption is to maintain
confidentiality of data obtained from various sources that may
ultimately accomplish a statutory or executively ordered purpose.
(b) Authority: The authority to issue exemptions is vested in the
Office of the Inspector General, as a constituent unit of the Treasury
Department by 31 CFR 1.20.
(c) Exemptions under 5 U.S.C. 552a(j)(2): (1) Under 5 U.S.C.
552a(j)(2), the head of any agency may exempt any system of records
within the agency from certain provisions of the Privacy Act of 1974, if
the agency or component that maintains the system performs as its
principal function any activities pertaining to the enforcement of
criminal laws. The Office of the Inspector General is authorized under
Treasury Department Order No. 256 to initiate, organize, direct, and
control investigations of any allegations of illegal acts, violations,
and any other misconduct, concerning any official or employee of any
Treasury Office or Bureau.
(2) To the extent that the exemption under 5 U.S.C. 552a(j)(2) does
not apply to the above named system of records, then the exemption under
5 U.S.C. 552a(k)(2) relating to investigatory material compiled for law
enforcement purposes is claimed for this system.
(3) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(j)(2) are as follows:
5 U.S.C. 552a(c)(3) and (4)
5 U.S.C. 552a(d)(1), (2), (3), (4)
5 U.S.C. 552a(e)(1)(2) and (3)
5 U.S.C. 552a(e)(4)(G), (H), and (I)
5 U.S.C. 552a(e)(5) and (8)
5 U.S.C. 552a(f)
5 U.S.C. 552a(g)
(d) Exemptions under 5 U.S.C. 552a(k)(2): (1) Under 5 U.S.C.
552a(k)(2), the head of any agency may exempt any system of records
within the agency from certain provisions of the Privacy Act of 1974 if
the system is investigatory material compiled for law enforcement
purposes.
(2) To the extent that information contained in the above named
system has as its principal purpose the enforcement of criminal laws,
the exemption for such information under 5 U.S.C. 552a(j)(2) is claimed.
(3) Provisions of the Privacy Act of 1974 from which exemptions are
claimed under 5 U.S.C. 552a(k)(2) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a(d)(1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4)(G), (H), and (I)
5 U.S.C. 552a(f)
(e) Reasons for exemptions under 5 U.S.C. 552a(j)(2) and (k)(2): (1)
5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request. These accountings must state the date, nature and purpose
of each disclosure of the
[[Page 54]]
record and the name and address of the recipient. The application of
this provision would alert subjects of an investigation to the existence
of the investigation and that such persons are subjects of that
investigation. Since release of such information to subjects of an
investigation would provide the subjects with significant information
concerning the nature of the investigation, it could result in the
altering or destruction of documentary evidence, improper influencing of
witnesses, and other activities that could impede or compromise the
investigation.
(2) 5 U.S.C. 552a(c)(4), (d)(1), (2), (3), and (4), (e)(4)(G) and
(H), (f) and (g) relate to an individual's right to be notified of the
existence of records pertaining to such individual; requirements for
identifying an individual who requests access to records; the agency
procedures relating to access to records and the contest of information
contained in such records; and the civil remedies available to the
individual in the event of adverse determinations by an agency
concerning access to or amendment of information contained in record
systems. This system is exempt from the foregoing provisions for the
following reasons: To notify an individual at the individual's request
of the existence of records in an investigative file pertaining to such
individual or to grant access to an investigative file could interfere
with investigative and enforcement proceedings; co-defendants of a right
to a fair trial; constitute an unwarranted invasion of the personal
privacy of others, disclose the identity of confidential sources and
reveal confidential information supplied by these sources; and disclose
investigative techniques and procedures.
(3) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose investigative techniques
and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity
and confidentiality. This would compromise the ability to conduct
investigations, and to identify, detect, and apprehend violators.
(4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive Order. An exemption from the foregoing is needed:
(A) Because it is not possible to detect relevance or necessity of
specific information in the early stages of a criminal or other
investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance and necessity of such information can be
established.
(C) In any investigation the Inspector General may obtain
information concerning the violations of laws other than those within
the scope of his jurisdiction. In the interest of effective law
enforcement, the Inspector General should retain this information as it
may aid in establishing patterns of criminal activity, and provide leads
for those law enforcement agencies charged with enforcing other segments
of criminal or civil law.
(D) In interviewing persons, or obtaining other forms of evidence
during an investigation, information may be supplied to the investigator
which relate to matters 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.
(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 privilege under Federal programs. The
application of the provision would impair investigations of illegal
acts, violations of the rules of conduct, merit system and any other
misconduct for the following reasons:
(A) In certain instances the subject of an investigation cannot be
required to supply information to investigators.
[[Page 55]]
In those instances, information relating to a subject's illegal acts,
violations of rules of conduct, or any other misconduct, etc., must be
obtained from other sources.
(B) Most information collected about an individual under
investigation is obtained from third parties such as witnesses and
informers. It is not feasible to rely upon the subject of the
investigation as a source for information regarding his activities.
(C) The subject of an investigation will be alerted to the existence
of an investigation if an attempt is made to obtain information from the
subject. This would afford the individual the opportunity to conceal any
criminal activities to avoid apprehension.
(D) In any investigation it is necessary to obtain evidence from a
variety of sources other than the subject of the investigation in order
to verify the evidence necessary for successful litigation.
(6) 5 U.S.C. 552a(e)(3) requires that an agency must inform the
subject of an investigation who is asked to supply information of:
(A) The authority under which the information is sought and whether
disclosure of the information is mandatory or voluntary.
(B) The purposes for which the information is intended to be used,
(C) The routine uses which may be made of the information, and
(D) The effects on the subject, if any of not providing the
requested information. The reasons for exempting this system of records
from the foregoing provision are as follows:
(i) The disclosure to the subject of the investigation as stated in
(B) above would provide the subject with substantial information
relating to the nature of the investigation and could impede or
compromise the investigation.
(ii) If the subject were informed of the information required by
this provision, it could seriously interfere with undercover activities
by requiring disclosure of undercover agents identity and impairing
their safety, as well as impairing the successful conclusion of the
investigation.
(iii) Individuals may be contacted during preliminary information
gathering in investigations authorized by Treasury Department Order No.
256 before any individual is identified as the subject of an
investigation. Informing the individual of the matters required by this
provision would hinder or adversely affect any present or subsequent
investigations.
(7) 5 U.S.C. 552a(e)(5) requires that records be maintained with
such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in making any
determination about an individual. Since the law 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 of its collection. In
gathering information during the course of an investigation it is not
possible to determine this prior to collection of the information. Facts
are first gathered and then placed into a logical order which
objectively proves or disproves criminal behavior on the part of the
suspect. Material which may seem unrelated, irrelevant, incomplete,
untimely, etc., may take on added meaning as an investigation
progresses. The restrictions in this provision could interfere with the
preparation of a complete investigative report.
(8) 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. The notice
requirement of this provision could prematurely reveal an ongoing
criminal investigation to the subject of the investigation.
(f) Exempt information included in another system. Any information
from a system of records for which an exemption is claimed under 5
U.S.C. 552a(j) or (k) which also is included in another system of
records retains the same exempt status as in the system for which an
exemption is claimed.
Assistant Secretary for Administration
The Assistant Secretary for Administration exempts under section (k)
of the Privacy Act of 1974, 5 U.S.C. 552a,
[[Page 56]]
the Department's Personnel Security Files and Personnel Security Files
and Indices from sections (c)(3), (d), (e)(1), (e)(4)(G) through
(e)(4)(I), and (f) of the Act. The records maintained in the exempt
systems of records are of the type described in section (k)(5) of the
Act:
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, 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 the effective date of this
section, under an implied promise that the identity of the source would
be held in confidence.
Thus to the extent that the records in this system can be disclosed
without revealing the identity of a confidential source, they are not
within the scope of this exemption and are subject to all the
requirements of the Privacy Act.
The sections of the Act from which this system of records are exempt
are in general those providing for individual access to records. When
such access would cause the identity of a confidential source to be
revealed, it would impair the future ability of the Treasury Department
to compile investigatory material for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, Federal contracts, or access to classified information.
In addition, the systems are exempt from section (e)(1) which
requires that the agency maintain in its records only such information
about an individual as is relevant and necessary to accomplish a
statutory or executively ordered purpose. The Director finds that to
fulfill the requirements of section (e)(1) would unduly restrict the
agency in its information gathering inasmuch as it is often not until
well after the investigation that it is possible to determine the
relevance and necessity of particular information.
If any investigations within the scope of section (k)(5) become
involved with civil or criminal matters, exemptions from the Act could
also be asserted under sections (k)(2) or (j)(2).
exemption of foreign assets control enforcement records from certain
provisions of the privacy act of 1974 (pub. l. 93-579, 5 u.s.c. 552a)
The new regulations promulgated by the Office of Foreign Assets
Control (as amendments to its Foreign Assets Control Regulations;
Transaction Control Regulations; Cuban Assets Control Regulations; and,
Rhodesian Sanction Regulations) read as follows:
Pursuant to subsection (k)(2) of 5 U.S.C. 552a, the Privacy Act of
1974, the Enforcement Records of the Office of Foreign Assets Control
are hereby exempted from the requirements of subsections (c)(3), (d),
(e)(1), (e)(4)(G-I), and (f) of 5 U.S.C. 552a, as materials which are
compiled and maintained for the purpose of conducting and recording
investigations of criminal violations of relevant statutes and
regulations administered by the Office of Foreign Assets Control. These
records contain, among other things, information and evidence which was
furnished in confidence by individuals, corporations, partnerships and
other entities, Federal, State and local agencies, and by foreign
individuals, corporations, partnerships and other entities, and foreign
government sources. If it should appear that the individual concerning
whom a record is maintained has been or will be denied any right,
privilege, or benefit to which he would otherwise be entitled by Federal
law, or for which he would otherwise be eligible, except for the
maintenance of such material, such material shall be disclosed to such
individual, except: (1) To the extent that disclosure 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 (2) to the extent that disclosure would reveal the
identity of a source who furnished information prior to the effective
date of the Privacy Act (September 27, 1975) under an implied promise
that the identity of the source would be held in confidence.
[[Page 57]]
Assistant Secretary (Enforcement)
Financial Crimes Enforcement Network
Notice of Exempt System
(a) In general. The Assistant Secretary of the Treasury for
Enforcement exempts the system of records entitled ``FinCEN Data Base''
(Treasury/DO .200) from certain provisions of the Privacy Act of 1974,
as amended, 5 U.S.C. 552a.
(b) Authority: 5 U.S.C. 552a (j) and (k); 31 CFR 1.23(c).
(c) General exemptions under 5 U.S.C. 552a(j)(2). Pursuant to 5
U.S.C. 552a(j)(2), the Assistant Secretary for Enforcement hereby
exempts the FinCEN Data Base system of records, maintained by the
Financial Crimes Enforcement Network (``FinCEN''), an office reporting
to the Assistant Secretary for Enforcement, from the following
provisions of the Privacy Act of 1974:
5 U.S.C. 552a(c) (3) and (4);
5 U.S.C. 552a(d) (1), (2), (3) and (4);
5 U.S.C. 552a (e) (1), (2) and (3);
5 U.S.C. 552a(e)(4) (G), (H) and (I);
5 U.S.C. 552a(e) (5) and (8);
5 U.S.C. 552a(f); and
5 U.S.C. 552a(g).
(d) Specific exemptions under 5 U.S.C. 552a(k)(1). To the extent
that the system of records may contain information subject to the
provisions of 5 U.S.C. 552(b)(1), regarding national defense and foreign
policy information classified pursuant to Executive order, the Assistant
Secretary for Enforcement hereby exempts the FinCEN Data Base system of
records from the following provisions of 5 U.S.C. 552a, pursuant to 5
U.S.C. 552a(k)(1):
5 U.S.C. 552a(c)(3);
5 U.S.C. 552a(d) (1), (2), (3), and (4);
5 U.S.C. 552a(e)(1);
5 U.S.C. 552a(e)(4) (G), (H), and (I); and
5 U.S.C. 552a(f).
(e) Specific exemptions under 5 U.S.C. 552a(k)(2). To the extent
that the exemption under 5 U.S.C. 552a(j)(2) does not apply to the
FinCEN Data Base, the Assistant Secretary for Enforcement hereby exempts
the FinCEN Data Base system of records from the following provisions of
5 U.S.C. 552a, pursuant to 5 U.S.C. 552a(k)(2):
5 U.S.C. 552a(c)(3);
5 U.S.C. 552a(d) (1), (2), (3), and (4);
5 U.S.C. 552a(e)(1);
5 U.S.C. 552a(e)(4) (G), (H), and (I); and
5 U.S.C. 552a(f).
(f) Reasons for exemptions under 5 U.S.C. 552a (j)(2) and (k)(2).
(1) 5 U.S.C. 552a (e)(4)(G) and (f)(1) enable individuals to inquire
whether a system of records contains records pertaining to them.
Application of these provisions to the FinCEN Data Base would allow
individuals to learn whether they have been identified as suspects or
subjects of investigation. As further described in the following
paragraph, access to such knowledge would impair FinCEN's ability to
carry out its mission, since individuals could (i) take steps to avoid
detection, (ii) inform associates that an investigation is in progress,
(iii) learn the nature of the investigation, (iv) learn whether they are
only suspects or identified as law violators, (v) begin, continue, or
resume illegal conduct upon learning that they are not identified in the
system of records, or (vi) destroy evidence needed to prove the
violation.
(2) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) grant
individuals access to records pertaining to them. The application of
these provisions to the FinCEN Data Base would compromise FinCEN's
ability to provide useful tactical and strategic information to law
enforcement agencies.
(i) Permitting access to records contained in the FinCEN Data Base
would provide individuals with information concerning the nature of any
current investigations and would enable them to avoid detection or
apprehension by (A) discovering the facts that would form the basis for
their arrest, (B) enabling them to destroy or alter evidence of criminal
conduct that would form the basis for their arrest, and (C) using
knowledge that criminal investigators had reason to believe that a crime
was about to be committed, to delay the commission of the crime or
commit it at a location that might not be under surveillance.
(ii) Permitting access to either on-going or closed investigative
files
[[Page 58]]
would also reveal investigative techniques and procedures, the knowledge
of which could enable individuals planning crimes to structure their
operations so as to avoid detection or apprehension.
(iii) Permitting access to investigative files and records could,
moreover, disclose the identity of confidential sources and informers
and the nature of the information supplied and thereby endanger the
physical safety of those sources by exposing them to possible reprisals
for having provided the information. Confidential sources and informers
might refuse to provide criminal investigators with valuable information
unless they believed that their identities would not be revealed through
disclosure of their names or the nature of the information they
supplied. Loss of access to such sources would seriously impair FinCEN's
ability to carry out its mandate.
(iv) Furthermore, providing access to records contained in the
FinCEN Data Base could reveal the identities of undercover law
enforcement officers who compiled information regarding the individual's
criminal activities and thereby endanger the physical safety of those
undercover officers or their families by exposing them to possible
reprisals.
(v) By compromising the law enforcement value of the FinCEN Data
Base for the reasons outlined in paragraphs (f)(2) through (iv) of this
paragraph, permitting access in keeping with these provisions would
discourage other law enforcement and regulatory agencies, foreign and
domestic, from freely sharing information with FinCEN and thus would
restrict FinCEN's access to information necessary to accomplish its
mission most effectively.
(vi) Finally, the dissemination of certain information that FinCEN
may maintain in the FinCEN Data Base is restricted by law.
(3) 5 U.S.C. 552a (d) (2), (3) and (4), (e)(4)(H), and (f)(4) permit
an individual to request amendment of a record pertaining to him or her
and require the agency either to amend the record, or to note the
disputed portion of the record and to provide a copy of the individual's
statement of disagreement with the agency's refusal to amend a record to
persons or other agencies to whom the record is thereafter disclosed.
Since these provisions depend on the individual's having access to his
or her records, and since these rules propose to exempt the FinCEN Data
Base from the provisions of 5 U.S.C. 552a relating to access to records,
for the reasons set out in paragraph (f)(2) of this section, these
provisions should not apply to the FinCEN Data Base.
(4) 5 U.S.C. 552(c)(4) requires an agency to inform any person or
other agency about any correction or notation of dispute that the agency
made in accordance with 5 U.S.C. 552a(d) to any record that the agency
disclosed to the person or agency if an accounting of the disclosure was
made. Since this provision depends on an individual's having access to
and an opportunity to request amendment of records pertaining to him or
her, and since these rules proposed to exempt the FinCEN Data Base from
the provisions of 5 U.S.C. 552a relating to access to and amendment of
records, for the reeasons set out in paragraph (f)(3) of this section,
this provision ought not apply to the FinCEN Data Base.
(5) 5 U.S.C. 552a(3) requires an agency to make accountings of
disclosures of a record available to the individual named in the record
upon his or her request. The accountings must state the date, nature,
and purpose of each disclosure of the record and the name and address of
the recipient.
(i) The application of this provision would impair the ability of
law enforcement agencies outside the Department of the Treasury to make
effective use of information provided by FinCEN. Making accountings of
disclosures available to the subjects of an investigation would alter
them to the fact that another agency is conducting an investigation into
their criminal activities and could reveal the geographic location of
the other agency's investigation, the nature and purpose of that
investigation, and the dates on which that investigation was active.
Violators possessing such knowledge would be able to take measures to
avoid detection or apprehension by altering their operations, by
transferring
[[Page 59]]
their criminal activities to other geographical areas, or by destroying
or concealing evidence that would form the basis for arrest.
(ii) Moreover, providing accountings to the subjects of
investigations would alert them to the fact that FinCEN has information
regarding their criminal activities and could inform them of the general
nature of that information. Access to such information could reveal the
operation of FinCEN's information-gathering and analysis systems and
permit violators to take steps to avoid detection or apprehension.
(6) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a general
notice listing the categories of sources for information contained in a
system of records. The application of this provision to the FinCEN Data
Base could compromise FinCEN's ability to provide useful information to
law enforcement agencies, since revealing sources for the information
could (i) disclose investigative techniques and procedures, (ii) result
in threats or reprisals against informers by the subjects of
investigations, and (iii) cause informers to refuse to give full
information to criminal investigators for fear of having their
identities as sources disclosed.
(7) 5 U.S.C. 552a(e)(1) requires an 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 to be
accomplished by statute or executive order. The term ``maintain,'' as
defined in 5 U.S.C. 552a(a)(3), includes ``collect'' and
``disseminate.'' The application of this provision to the FinCEN Data
Base could impair FinCEN's ability to collect and disseminate valuable
law enforcement information.
(i) At the time that FinCEN collects information, it often lacks
sufficient time to determine whether the information is relevant and
necessary to accomplish a FinCEN purpose.
(ii) In many cases, especially in the early stages of investigation,
it may be impossible immediately to determine whether information
collected is relevant and necessary, and information that initially
appears irrelevent and unnecessary often may, upon further evaluation or
upon collation with information developed subsequently, prove
particularly relevant to a law enforcement program.
(iii) Not all violations of law discovered by FinCEN analysts fall
within the investigative jurisdiction of the Department of the Treasury.
To promote effective law enforcement, FinCEN will have to disclose such
violations to other law enforcement agencies, including State, local and
foreign agencies, that have jurisdiction over the offenses to which the
information relates. Otherwise, FinCEN might be placed in the position
of having to ignore information relating to violations of law not within
the jurisdiction of the Department of the Treasury when that information
comes to FinCEN's attention during the collation and analysis of
information in its records.
(8) 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 to the FinCEN Data Base would impair
FinCEN's ability to collate, analyze, and disseminate investigative,
intelligence, and enforcement information.
(i) Most information collected about an individual under criminal
investigation is obtained from third parties, such as witnesses and
informants. It is usually not feasible to rely upon the subject of the
investigation as a source for information regarding his criminal
activities.
(ii) An attempt to obtain information from the subject of a criminal
investigation will often alert that individual to the existence of an
investigation, thereby affording the individual an opportunity to
attempt to conceal his criminal activities so as to avoid apprehension.
(iii) In certain instances, the subject of a criminal investigation
is not required to supply information to criminal investigators as a
matter of legal duty.
(iv) During criminal investigations it is often a matter of sound
investigative procedure to obtain information from a
[[Page 60]]
variety of sources to verify information already obtained.
(9) 5 U.S.C. 552a(e)(3) requires an agency to inform each individual
whom it asks to supply information, on the form that it uses to collect
the information or on a separate form that the individual can retain, of
the agency's authority for soliciting the information; whether
disclosure of information is voluntary or mandatory; the principal
purposes for which the agency will use the information; the routine uses
that may be made of the information; and the effects on the individual
of not providing all or part of the information. The FinCEN Data Base
should be exempted from this provision to avoid impairing FinCEN's
ability to collect and collate investigative, intelligence, and
enforcement data.
(i) Confidential sources or undercover law enforcement officers
often obtain information under circumstances in which it is necessary to
keep the true purpose of their actions secret so as not to let the
subject of the investigation or his or her associates know that a
criminal investigation is in progress.
(ii) If it became known that the undercover officer was assisting in
a criminal investigation, that officer's physical safety could be
endangered through reprisal, and that officer may not be able to
continue working on the investigation.
(iii) Individuals often feel inhibited in talking to a person
representing a criminal law enforcement agency but are willing to talk
to a confidential source or undercover officer whom they believe not to
be involved in law enforcement activities.
(iv) Providing a confidential source of information with written
evidence that he or she was a source, as required by this provision,
could increase the likelihood that the source of information would be
subject to retaliation by the subject of the investigation.
(v) Finally, application of this provision could result in an
unwarranted invasion of the personal privacy of the subject of the
criminal investigation, particularly where further investigation reveals
that the subject was not involved in any criminal activity.
(10) 5 U.S.C. 552a(e)(5) requires an agency to maintain all records
it uses in making any determination about any individual with such
accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination.
(i) Since 5 U.S.C. 552a(a)(3) defines ``maintain'' to include
``collect'' and ``disseminate,'' application of this provision to the
FinCEN Data Base would hinder the initial collection of any information
that could not, at the moment of collection, be determined to be
accurate, relevant, timely, and complete. Similarly, application of this
provision would seriously restrict FinCEN's ability to disseminate
information pertaining to a possible violation of law to law enforcement
and regulatory agencies. In collecting information during a criminal
investigation, it is often impossible or unfeasible to determine
accuracy, relevance, timeliness, or completeness prior to collection of
the information. In disseminating information to law enforcement and
regulatory agencies, it is often impossible to determine accuracy,
relevance, timeliness, or completeness prior to dissemination, because
FinCEN may not have the expertise with which to make such
determinations.
(ii) Information that may initially appear inaccurate, irrelevant,
untimely, or incomplete may, when collated and analyzed with other
available information, become more pertinent as an investigation
progresses. In addition, application of this provision could seriously
impede criminal investigators and intelligence analysts in the exercise
of their judgment in reporting results obtained during criminal
investigations.
(11) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when the agency makes any
record on the individual available to any person under compulsory legal
process, when such process becomes a matter of public record. The FinCEN
Data Base should be exempted from this provision to avoid revealing
investigative techniques and procedures outlined in those records and to
prevent revelation of
[[Page 61]]
the existence of an ongoing investigation where there is need to keep
the existence of the investigation secret.
(12) 5 U.S.C. 552a(g) provides for civil remedies to an individual
when an agency wrongfully refuses to amend a record or to review a
request for amendment, when an agency wrongfully refuses to grant access
to a record, when an agency fails to maintain accurate, relevant,
timely, and complete records which are used to make a determination
adverse to the individual, and when an agency fails to comply with any
other provision of 5 U.S.C. 552a so as to adversely affect the
individual. The FinCEN Data Base should be exempted from this provision
to the extent that the civil remedies may relate to provisions of 5
U.S.C. 552a from which these rules propose to exempt the FinCEN Data
Base, since there should be no civil remedies for failure to comply with
provisions from which FinCEN is exempted. Exemption from this provision
will also protect FinCEN from baseless civil court actions that might
hamper its ability to collate, analyze, and disseminate investigative,
intelligence, and law enforcement data.
(g) In general. The Assistant Secretary (Enforcement) exempts the
system of records entitled ``Suspicious Activity Reporting System''
(Treasury/DO .212) from certain provisions of the Privacy Act of 1974,
as amended, 5 U.S.C. 552a.
(h) Authority. 5 U.S.C. 552a(j) and (k); 31 CFR 1.23(c).
(i) General exemptions under 5 U.S.C. 552a(j)(2). Pursuant to 5
U.S.C. 552a(j)(2), the Assistant Secretary (Enforcement) hereby exempts
the Suspicious Activity Reporting System (SAR System) of records,
maintained by FinCEN, an office reporting to the Assistant Secretary
(Enforcement), from the following provisions of the Privacy Act of 1974:
5 U.S.C. 552a(c)(3) and (4);
5 U.S.C. 552a(d)(1), (2), (3), and (4);
5 U.S.C. 552a(e)(1), (2), and (3);
5 U.S.C. 552a(e)(4)(G), (H), and (I):
5 U.S.C. 552a(e)(5) and (8);
5 U.S.C. 552a(f); and
5 U.S.C. 552a(g).
(j) Specific exemptions under 5 U.S.C. 552a(k)(2). To the extent
that the exemption under 5 U.S.C. 552a(j)(2) does not apply to the SAR
System of records, the Assistant Secretary (Enforcement) hereby exempts
the SAR System of records from the following provisions of 5 U.S.C. 552a
pursuant to 5 U.S.C. 552a(k)(2):
5 U.S.C. 552a(c)(3);
5 U.S.C. 552a(d)(1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4)(G), (H), and (I); and
5 U.S.C. 552a(f).
(k) Reasons for exemptions under 5 U.S.C. 552a(j)(2) and (k)(2). (1)
5 U.S.C. 552a(e)(4)(G) and (f)(1) enable individuals to inquire whether
a system of records contains records pertaining to them. Application of
these provisions to the SAR System would allow individuals to learn
whether they have been identified as suspects or possible subjects of
investigation. Access by individuals to such knowledge would seriously
hinder the law enforcement purposes that the SAR System is created to
serve, because individuals involved in activities that are violations of
law could:
(i) Take steps to avoid detection;
(ii) Inform associates that an investigation is in progress;
(iii) Learn the nature of the investigation;
(iv) Learn whether they are only suspects or identified as violators
of law;
(v) Begin, continue, or resume illegal conduct upon learning that
they are not identified in the system of records, or
(vi) Destroy evidence needed to prove the violation.
(2) 5 U.S.C. 552a(d)(1), (e)(4)(H) and (f)(2), (f)(3) and (f)(5)
grant individuals access to records containing information about them.
The application of these provisions to the SAR System would compromise
the ability of the component agencies of the SAR System to use the
information effectively for purposes of law enforcement.
(i) Permitting access to records contained in the SAR System would
provide individuals with information concerning the nature of any
current investigations and would enable them to avoid detection or
apprehension, because they could;
(A) Discover the facts that would form the basis of an arrest;
[[Page 62]]
(B) Destroy or alter evidence of criminal conduct that would form
the basis of their arrest, and
(C) Delay or change the commission of a crime that was about to be
discovered by investigators.
(ii) Permitting access to either on-going or closed investigative
files would also reveal investigative techniques and procedures, the
knowledge of which could enable individuals planning crimes to structure
their operations so as to avoid detection or apprehension.
(3) 5 U.S.C. 552a(d)(2), (d)(3) and (d)(4), (e)(4)(H) and (f)(4)
permit an individual to request amendment of a record pertaining to him
or her and require the agency either to amend the record or note the
disputed portion of the record and, if the agency refuses to amend the
record, to provide a copy of the individual's statement of disagreement
with the agency's refusal, to persons or other agencies to whom the
record is thereafter disclosed. Because these provisions depend on the
individual's having access to his or her records, and since these rules
exempt the SAR System from the provisions of 5 U.S.C. 552a relating to
access to records, for the reasons set out in paragraph (k)(2), these
provisions do not apply to the SAR System.
(4) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or
other agency about any correction or notation of dispute that the agency
made in accordance with 5 U.S.C. 552a(d) to any record that the agency
disclosed to the person or agency, if an accounting of the disclosure
was made. Because this provision depends on an individual's having
access to and an opportunity to request amendment of records pertaining
to him or her, and because these rules exempt the SAR System from the
provisions of 5 U.S.C. 552a relating to access to and amendment of
records, for the reasons set forth in paragraphs (k)(2) and (3), this
provision does not apply to the SAR System.
(5) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of
any disclosures of records required by 5 U.S.C. 552a(c)(1) available to
the individual named in the record upon his or her request. The
accounting must state the date, nature, and purpose of each disclosure
of the record and the name and address of the recipient.
(i) The application of this provision would impair the effective use
of information collected in the SAR System. Making an accounting of
disclosures available to the subjects of an investigation would alert
them to the fact that another agency is conducting an investigation into
their criminal activities and could reveal the geographic location of
the other agency's investigation, the nature and purpose of that
investigation, and the dates on which that investigation was active.
Violators possessing such knowledge would be able to take measures to
avoid detection or apprehension by altering their operations, by
transferring their criminal activities to other geographical areas, or
by destroying or concealing evidence that would form the basis for
arrest.
(ii) Moreover, providing an accounting to the subjects of
investigations would alert them to the fact that FinCEN has information
regarding possible criminal activities and could inform them of the
general nature of that information. Access to such information could
reveal the operation of the information-gathering and analysis systems
of FinCEN, the Federal Supervisory Agencies and other SAR System Users
and permit violators to take steps to avoid detection or apprehension.
(6) 5 U.S. C. 552a(e)(4)(I) requires an agency to publish a general
notice listing the categories of sources for information contained in a
system of records. The application of this provision to the SAR System
could compromise FinCEN's and the Federal Supervisory Agencies' ability
to provide useful information to law enforcement agencies, because
revealing sources for the information could:
(i) Disclose investigative techniques and procedures,
(ii) Result in threats or reprisals against informers by the
subjects of investigations, and
(iii) Cause informers to refuse to give full information to criminal
investigators for fear of having their identities as sources disclosed.
(7) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its
records only
[[Page 63]]
such information about an individual as is relevant and necessary to
accomplish a purpose of the agency required to be accomplished by
statute or executive order. The application of this provision to the SAR
System could impair the effectiveness of law enforcement because in many
cases, especially in the early stages of investigation, it may be
impossible immediately to determine whether information collected is
relevant and necessary, and information that initially appears
irrelevant and unnecessary, upon further evaluation or upon collation
with information developed subsequently, often may prove helpful to an
investigation.
(8) 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 to the SAR System would impair
FinCEN's ability to collect, analyze and disseminate to System Users
investigative or enforcement information. The SAR System is designed to
house information about known or suspected criminal activities or
suspicious transactions that has been collected and reported by
financial institutions, or their examiners or other enforcement or
supervisory officials. It is not feasible to rely upon the subject of an
investigation to supply information. An attempt to obtain information
from the subject of any investigation would alert that individual to the
existence of an investigation, providing an opportunity to conceal
criminal activity and avoid apprehension. Further, with respect to the
initial SAR, 31 U.S.C. Sec. 5318(g)(2) specifically prohibits financial
institutions making such reports from notifying any participant in the
transaction that a report has been made.
(9) 5 U.S.C. 552a(e)(3) requires an agency to inform each individual
whom it asks to supply information, on the form that it uses to collect
the information or on a separate form that the individual can retain,
the agency's authority for soliciting the information; whether
disclosure of information is voluntary or mandatory; the principal
purposes for which the agency will use the information; the routine uses
that may be made of the information; and the effects on the individual
of not providing all or part of the information. The application of
these provisions to the SAR System would compromise the ability of the
component agencies of the SAR System to use the information effectively
for purposes of law enforcement.
(10) 5 U.S.C. 552a(e)(5) requires an agency to maintain all records
it uses in making any determination about any individual with such
accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination.
Application of this provision to the SAR System would hinder the
collection and dissemination of information. Because Suspicious Activity
Reports are filed by financial institutions with respect to known or
suspected violations of law or suspicious activities, it is not possible
at the time of collection for the agencies that use the SAR System to
determine that the information in such records is accurate, relevant,
timely and complete.
(11) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when the agency makes any
record on the individual available to any person under compulsory legal
process, when such process becomes a matter of public record.
Application of these requirements to the SAR System would prematurely
reveal the existence of an ongoing investigation to the subject of
investigation where there is need to keep the existence of the
investigation secret. It would render ineffective 31 U.S.C.
Sec. 5318(g)(2), which prohibits financial institutions and their
officers, employees and agents from disclosing to any person involved in
a transaction that a SAR has been filed.
(12) 5 U.S.C. 552a(g) provides an individual with civil remedies
when an agency wrongfully refuses to amend a record or to review a
request for amendment, when an agency wrongfully refuses to grant access
to a record, when any determination relating to an individual is based
on records that are not accurate, relevant, timely and complete, and
when an agency fails
[[Page 64]]
to comply with any other provision of 5 U.S.C. 552a so as to adversely
affect the individual. Because the SAR System is exempt from these
provisions it follows that civil remedies for failure to comply with
these provisions are not appropriate.
(l) Exempt information included in another system. Any information
from a system of records for which an exemption is claimed under 5
U.S.C. 552a (j) or (k) which is also included in another system of
records retains the same exempt status such information has in the
system for which such exemption is claimed.
The Internal Revenue Service
notice of exempt systems
The Commissioner of Internal Revenue finds that the orderly and
efficient administration of the internal revenue laws necessitates that
certain systems of records maintained by the Internal Revenue Service be
exempted from certain sections of the Privacy Act of 1974 (88 Stat.
1986).
(a) Exemptions under 5 U.S.C. 552a (j) (2). (1) This paragraph
applies to the following systems of records maintained by the Internal
Revenue Service, for which exemptions are claimed under 5 U.S.C. 552a(j)
(2).
------------------------------------------------------------------------
Name of system No.
------------------------------------------------------------------------
Integrated Data Reporting System (IDRS) Security Files......... 34.018
Case Management and Time Reporting System, Criminal
Investigation Division........................................ 46.002
Confidential Informants, Criminal Investigation Division....... 46.003
Electronic Surveillance Files, Criminal Investigation Division. 46.005
Centralized Evaluation and Processing of Information Items
(CEPIIs), Criminal Investigation Division..................... 46.009
Relocated Witnesses, Criminal Investigation Division........... 46.015
Secret Service Details, Criminal Investigation Division........ 46.016
Treasury Enforcement Communications System (TECS).............. 46.022
Automated Information Analysis System.......................... 46.050
Assault and Threat Investigation Files......................... 60.001
Bribery Investigation Files.................................... 60.002
Disclosure Investigation Files................................. 60.004
Internal Security Management Information System (ISMIS)........ 60.011
Chief Counsel Criminal Tax Case Files.......................... 90.001
------------------------------------------------------------------------
(2) Under 5 U.S.C. 552a(j)(2), the head of any agency may promulgate
rules to exempt any system of records within the agency from certain
provisions of the Privacy Act of 1974 if the agency or component thereof
that maintains the system performs as its principal function any
activities pertaining to the enforcement of criminal laws. Certain
components of the Internal Revenue Service have as their principal
function activities pertaining to the enforcement of criminal laws.
(3) To the extent the exemption under 5 U.S.C. 552a(j)(2) does not
apply to any of the above-named systems, then exemptions under 5 U.S.C.
552a(k)(2), relating to investigatory material compiled for law
enforcement purposes, are hereby claimed for such systems.
(4) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(j)(2) are as follows:
5 U.S.C. 552a(c) (3) and (4)
5 U.S.C. 552a(d) (1), (2), (3), and (4)
5 U.S.C. 552a(e) (1), (2), and (3)
5 U.S.C. 552a(e) (4) (G), (H), and (I)
5 U.S.C. 552a(e) (5) and (8)
5 U.S.C. 552a(f)
5 U.S.C. 552a(g)
(5) See paragraph (c) for reasons for the exemptions.
(b) Exemptions under 5 U.S.C. 552a (k)(2). (1) This paragraph
applies to the following systems of records maintained by the Internal
Revenue Service, for which exemptions are claimed under 5 U.S.C.
552a(k)(2):
------------------------------------------------------------------------
Name of system No.
------------------------------------------------------------------------
Wage and Information Returns Processing (IRP).................. 22.061
Acquired Property Records...................................... 26.001
Form 2209, Courtesy Investigations............................. 26.006
IRS and Treasury Employee Delinquency.......................... 26.008
Litigation Case Files.......................................... 26.011
Offer in Compromise (OIC) Files................................ 26.012
One-hundred Per Cent Penalty Cases............................. 26.013
Returns Compliance Programs (RCP).............................. 26.016
TDA (Taxpayer Delinquent Accounts)............................. 26.019
TDI (Taxpayer Delinquency Investigations) Files................ 26.020
Transferee Files............................................... 26.021
Delinquency Prevention Programs................................ 26.022
Applicant Appeal Files......................................... 37.002
Closed Files containing Derogatory Information about
Individuals' practice before the IRS and Files of attorneys
and certified public accountants formerly enrolled to Practice 37.003
Derogatory Information (No Action)............................. 37.004
Present Suspensions and Disbarments Resulting from
Administrative Proceeding..................................... 37.005
Inventory...................................................... 37.007
Resigned Enrolled Agents (action pursuant to 31 CFR Section
10.55(b))..................................................... 37.009
Present Suspensions from Practice Before the Internal Revenue
Service....................................................... 37.011
Examination Administrative File................................ 42.001
Audit Information Management System (AIMS)..................... 42.008
Classification and Examination Selection Files................. 42.016
[[Page 65]]
Compliance Programs and Projects Files......................... 42.021
International Enforcement Program Files........................ 42.017
Combined Case Control Files.................................... 42.012
Audit Underreporter Case Files................................. 42.029
Discriminant Function File (DIF)............................... 42.030
Appeals Case Files............................................. 44.001
Automated Information Analysis System.......................... 46.050
Disclosure Records............................................. 48.001
Collateral and Information Requests System..................... 49.001
Component Authority and Index Card Mircofilm Retrieval System.. 49.002
Overseas Compliance Projects System............................ 49.007
Conduct Investigation Files.................................... 60.003
Enrollee Charge Investigation Files............................ 60.006
Miscellaneous Information File................................. 60.007
Special Inquiry Investigation Files............................ 60.009
Chief Counsel Disclosure Litigation Division Case Files........ 90.002
Chief Counsel General Legal Services Case Files................ 90.004
Chief Counsel General Litigation Case Files.................... 90.005
Chief Counsel Tax Litigation Case Files........................ 90.009
File Digest Room Files containing briefs, Legal opinions,
Digests of Documents generated internally or by the Department
of Justice relating to the Administration of the Revenue Laws. 90.010
Legal Case Files of the Chief Counsel, Deputy Chief Counsel,
Associate Chief Counsels (Litigation) and (Technical)......... 90.013
Reports and Information Retrieval Activity Computer and
Microfilm Records............................................. 90.016
Correspondence File--Inquiries about Enforcement Activities.... 00.002
------------------------------------------------------------------------
(2) Under 5 U.S.C. 552a (k)(2), the head of any agency may
promulgate rules to exempt any system of records within the agency from
certain provisions of the Privacy Act of 1974 if the system is
investigatory material compiled for law enforcement purposes. To the
extent that information contained in the above-named systems has as its
principal purpose the enforcement of criminal laws, exemption for such
information under 5 U.S.C. 552a (j)(2) is hereby claimed.
(3) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(k)(2) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a(d) (1), (2), (3), and (4)
5 U.S.C. 552a (e)(1)
5 U.S.C. 552a(e)(4) (G), (H), and (I)
5 U.S.C. 552a(f)
(4) See paragraph (c) for reasons for the exemptions.
(c) Reasons for exemptions. The following are the reasons for
exempting systems of records maintained by the Internal Revenue Service
pursuant to 5 U.S.C. 552a (j)(2) and (k)(2) of the Privacy Act of 1974.
(1) 5 U.S.C. 552a(c)(3). This provision of the Privacy Act provides
for the release of the disclosure accounting required by 5 U.S.C.
552a(c) (1) and (2) to the individual named in the record at his
request. The reasons for exempting systems of records from the foregoing
provision are as follows:
(i) The release of disclosure accounting would put the subject of an
investigation on notice of the existence of an investigation and that
such person is the subject of that investigation;
(ii) Such release would provide the subject of an investigation with
an accurate accounting of the date, nature, and purpose of each
disclosure and the name and address of the person or agency to whom the
disclosure is made. The release of such information to the subject of an
investigation would provide the subject with significant information
concerning the nature of the investigation and could result in the
altering or destruction of documentary evidence, the improper
influencing of witnesses, and other activities that could impede or
compromise the investigation. In the case of a delinquent account, such
release might enable the subject of the investigation to dissipate
assets before levy;
(iii) Release to the individual of the disclosure accounting would
alert the individual as to which agencies were investigating this person
and the scope of the investigation, and could aid the individual in
impeding or compromising investigations by those agencies.
(2) 5 U.S.C. 552a (c)(4), (d)(1), (2), (3), and (4), (e)(4) (G) and
(H), (f), and (g). These provisions of the Privacy Act relate to an
individual's right to notification of the existence of records
pertaining to such individual; requirements for identifying an
individual who requests access to records; the agency procedures
relating to access to records and the contest of the information
contained in such records; and the civil remedies available to the
individual in the event of adverse determinations by an agency
concerning access to or amendment of information contained in record
systems. The reasons for exempting systems of records from the foregoing
provisions are as follows: To notify an individual at the individual's
request of the existence of records in
[[Page 66]]
an investigative file pertaining to such individual or to grant access
to an investigative file could interfere with investigative and
enforcement proceedings; deprive co-defendants of a right to a fair
trial or an impartial adjudication; constitute an unwarranted invasion
of the personal privacy of others; disclose the identity of confidential
sources and reveal confidential information supplied by such sources;
and disclose investigative techniques and procedures.
(3) 5 U.S.C. 552a(e)(4)(I). This provision of the Privacy Act
requires the publication of the categories of sources of records in each
system of records. In cases where an exemption from this provision has
been claimed, the reasons are as follows:
(i) Revealing categories of sources of information could disclose
investigative techniques and procedures;
(ii) Revealing categories of sources of information could cause
sources who supply information to investigators to refrain from giving
such information because of fear of reprisal, or fear of breach of
promises of anonymity and confidentiality.
(4) 5 U.S.C. 552a(e)(1). This provision of the Privacy Act 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 to be accomplished by statute or executive order. The
reasons for exempting systems of records from the foregoing provision
are as follows:
(i) The Internal Revenue Service will limit its inquiries to
information which is necessary for the enforcement and administration of
tax laws. However, an exemption from the foregoing provision is needed
because, particularly in the early stages of a tax audit or other
investigation, it is not possible to determine the relevance or
necessity of specific information.
(ii) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may subsequently be
determined to be irrelevant or unnecessary. It is only after the
information is evaluated that the relevance and necessity of such
information can be established with certainty.
(iii) When information is received by the Internal Revenue Service
relating to violations of law within the jurisdiction of other agencies,
the Service processes this information through Service systems in order
to forward the material to the appropriate agencies.
(5) 5 U.S.C. 552a(e)(2). This provision of the Privacy Act 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 reasons for exempting systems of
records from the foregoing provisions are as follows:
(i) In certain instances the subject of a criminal investigation
cannot be required to supply information to investigators. In those
instances, information relating to a subject's criminal activities must
be obtained from other sources;
(ii) In a criminal investigation it is necessary to obtain evidence
from a variety of sources other than the subject of the investigation in
order to accumulate and verify the evidence necessary for the successful
prosecution of persons suspected of violating the criminal laws.
(6) 5 U.S.C. 552a(e)(3). This provision of the Privacy Act requires
that an agency must inform the subject of an investigation who is asked
to supply information of (A) the authority under which the information
is sought and whether disclosure of the information is mandatory or
voluntary, (B) the purposes for which the information is intended to be
used, (C) the routine uses which may be made of the information, and (D)
the effects on the subject, if any, of not providing the requested
information. The reasons for exempting systems of records from the
foregoing provision are as follows:
(i) The disclosure to the subject of an investigation of the
purposes for which the requested information is intended to be used
would provide the subject with significant information concerning the
nature of the investigation and could result in impeding or compromising
the investigation.
(ii) Informing the subject of an investigation of the matters
required by this
[[Page 67]]
provision could seriously undermine the actions of undercover officers,
requiring them to disclose their identity and impairing their safety, as
well as impairing the successful conclusion of the investigation.
(iii) Individuals may be contacted during preliminary information
gathering, surveys, or compliance projects concerning the administration
of the internal revenue laws before any individual is identified as the
subject of an investigation. Informing the individual of the matters
required by this provision would impede or compromise subsequent
investigations.
(7) 5 U.S.C. 552a(e)(5). This provision of the Privacy Act requires
an agency to maintain all records which are used in making any
determination about an individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination. The reasons for
exempting systems of records from the foregoing provision are as
follows: Since the law defines ``maintain'' to include the collection of
information, compliance with the foregoing provision would prohibit the
initial collection of any data not shown to be accurate, relevant,
timely, and complete at the moment of its collection. In gathering
information during the course of a criminal investigation, it is not
feasible or possible to determine completeness, accuracy, timeliness, or
relevancy prior to collection of the information. Facts are first
gathered and then placed into a cohesive order which objectively proves
or disproves criminal behavior on the part of a suspect. Seemingly
nonrelevant, untimely, or incomplete information when gathered may
acquire new significance as an investigation progresses. The
restrictions of the foregoing provision could impede investigators in
the preparation of a complete investigative report.
(8) 5 U.S.C. 552a(e)(8). This provision of the Privacy Act 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. The reasons for exempting systems of records from the foregoing
provision are as follows: The notice requirement of the foregoing
provision could prematurely reveal the existence of criminal
investigations to individuals who are the subject of such
investigations.
(d) Exemption under 5 U.S.C. 552a (k)(4). (1) This paragraph applies
to the following system of records maintained by the Internal Revenue
Service, for which exemption is claimed under 5 U.S.C. 552a(k)(4):
Statistics of Income--Individual Tax Returns 70.001.
(2) Under 5 U.S.C. 552a(k)(4), the head of any agency may promulgate
rules to exempt any system of records within the agency from certain
provisions of the Privacy Act of 1974 if the system is required by
statute to be maintained and used solely as statistical records.
(3) The above-named system is maintained under section 6108 of the
Internal Revenue Code, which provides that ``the Secretary or his
delegate shall prepare and publish annually statistics reasonably
available with respect to the operation of the income tax laws,
including classifications of taxpayers and of income, the amounts
allowed as deductions, exemptions, and credits, and any other facts
deemed pertinent and valuable''.
(4) The reason for exempting the above-named system of records is
that disclosure of statistical records (including release of accounting
for disclosures) would in most instances be of no benefit to a
particular individual since the records do not have a direct effect on a
given individual.
(5) The provisions of the Privacy Act of 1974 from which exemption
is claimed under 5 U.S.C. 552a(k)(4) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a(d) (1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4) (G), (H), and (I)
5 U.S.C. 552a(f)
(e) Exemptions under 5 U.S.C. 552a (k)(5). (1) This paragraph
applies to the following systems of records maintained by the Internal
Revenue Service, for which exemptions are claimed under 5 U.S.C.
552a(k)(5):
------------------------------------------------------------------------
Name of system No.
------------------------------------------------------------------------
Recruiting, Examining and Placement Records.................... 36.008
[[Page 68]]
Security, Background, and Character Investigations Files....... 60.008
Chief Counsel General Administrative Systems................... 90.003
Employee Recruiting Files Maintained by the Operations Division 90.011
Management Files Maintained by Operations Division and the
Deputy Chief Counsel other than the Office of Personnel
Management's Official Personnel Files......................... 90.014
------------------------------------------------------------------------
(2) Under 5 U.S.C. 552a(k)(5), the head of any agency may promulgate
rules to exempt any system of records within the agency from certain
provisions of the Privacy Act of 1974 if the system is investigatory
material compiled solely for the purpose of determining suitability,
eligibility, and qualifications for Federal civilian employment 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 of the
source would be held in confidence. Thus, to the extent that records in
the above-named systems can be disclosed without revealing the identity
of a confidential source, they are not within the scope of this
exemption and are subject to all the requirements of the Privacy Act.
(3) The provisions of the Act from which exemptions are claimed for
the above-named systems of records are in general those providing for
individual access to records. When such access would cause the identity
of a confidential source to be revealed, it would impair the future
ability of the Service to compile investigatory material for the purpose
of determining suitability, eligibility, or qualifications for Federal
civilian employment, Federal contracts, or access to classified
information. In addition, the systems are to be exempt from 5 U.S.C.
552a(e)(1), which requires that the agency maintain in its records only
such information about an individual as is relevant and necessary to
accomplish a statutory or executively ordered purpose. The Service finds
that to fulfill the requirements of 5 U.S.C. 552a(e)(1) would unduly
restrict the agency in its information gathering inasmuch as it is often
not until well after the investigation that it is possible to determine
the relevance and necessity of particular information.
(4) If any investigatory material contained in the above-named
systems becomes involved in criminal or civil matters, exemptions of
such material under 5 U.S.C. 552a (j)(2) or (k)(2) is hereby claimed.
(5) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(k)(5) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a (d) (1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4) (G), (H), and (I)
5 U.S.C. 552a (f)
(f) Exemption under 5 U.S.C. 552a(k)(6). (1) This paragraph applies
to the following system of records maintained by the Internal Revenue
Service, for which exemption is claimed under 5 U.S.C. 552a(k)(6):
Recruiting, Examining and Placement Records 36.008
(2) Under 5 U.S.C. 552a(k)(6), the head of any agency may promulgate
rules to exempt any system of records that is testing or examination
material used solely to determine individual qualifications for
appointment or promotion in the Federal service the disclosure of which
would compromise the objectivity or fairness of the testing or
examination process.
(3) The reason for exempting the above-named system is that
disclosure of the material in the system would compromise the
objectivity or fairness of the examination process.
(4) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(k)(6) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a(d)(1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4) (G), (H), and (I)
5 U.S.C. 552a (f)
(g) Exempt information included in another system. Any information
from a system of records for which an exemption is claimed under 5
U.S.C. 552a (j) or (k) which also is included in another system of
records retains the same exempt status such information has in
[[Page 69]]
the system for which such exemption is claimed.
United States Customs Service
notice of exempt systems
In accordance with 5 U.S.C. 552a (j) and (k), general notice is
hereby given of rulemaking pursuant to the Privacy Act of 1974 by the
Commissioner, United States Customs Service, under authority delegated
to him by the Secretary of the Treasury. The Commissioner, United States
Customs Service, exempts the systems of records identified in the
paragraphs below from certain provisions of the Privacy Act of 1974 as
set forth in such paragraphs.
a. General exemptions under 5 U.S.C. 552a(j)(2). Pursuant to the
provisions of 5 U.S.C. 552a(j)(2), the Commissioner, United States
Customs Service, hereby exempts certain systems of records, maintained
by the United States Customs Service, from the provisions of 5 U.S.C.
552a(c) (3) and (4), (d) (1), (2), (3) and (4), (e)(1), (2), (3),
(4)(G), (H) and (I), (5) and (8), (f) and (g).
1. Exempt systems. The following systems of records, which contain
information of the type described in 5 U.S.C. 552a(j)(2), shall be
exempt from the provisions of 5 U.S.C. 552a listed in paragraph a. above
except as otherwise indicated below and in the general notice of the
existence and character of systems of records which appears elsewhere in
the Federal Register:
00.285--Automated Index to Central Enforcement Files
00.270--Background--Record File of Non-Customs Employees
00.067--Bank Secrecy Act Reports File
00.037--Cargo Security Record System
00.053--Confidential Source Identification File
00.287--Customs Automated Licensing Information System (CALIS)
[Proposed]
00.127--Internal Security Records System
00.129--Investigations Record System
00.171--Pacific Basin Reporting Network
00.244--Treasury Enforcement Communications System (TECS)
2. Reasons for exemptions, (a) 5 U.S.C. 552a (e)(4)(G) and (f)(1)
enable individuals to be notified whether a system of records contains
records pertaining to them. The Customs Service believes that
application of these provisions to the above-listed systems of records
would give individuals an opportunity to learn whether they are of
record either as suspects or as subjects of a criminal investigation;
this would compromise the ability of the Customs Service to complete
investigations and to detect and apprehend violators of the Customs and
related laws in that individuals would thus be able (1) to take steps to
avoid detection, (2) to inform co-conspirators of the fact that an
investigation is being conducted, (3) to learn the nature of the
investigation to which they are being subjected, (4) to learn the type
of surveillance being utilized, (5) to learn whether they are only
suspects or identified law violators, (6) to continue or resume their
illegal conduct without fear of detection upon learning that they are
not in a particular system of records, and (7) to destroy evidence
needed to prove the violation.
(b) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f) (2), (3) and (5) enable
individuals to gain access to records pertaining to them. The Customs
Service believes that application of these provisions to the above-
listed systems of records would compromise its ability to complete or
continue criminal investigations and to detect and apprehend violators
of the Customs and related criminal laws. Permitting access to records
contained in the above-listed systems of records would provide
individuals with significant information concerning the nature of the
investigation, and this could enable them to avoid detection or
apprehension in the following ways: (1) By discovering the collection of
facts which would form the basis for their arrest, (2) by enabling them
to destroy contraband or other evidence of criminal conduct which would
form the basis for their arrest and, (3) by learning that the criminal
investigators had reason to believe that a crime was about to be
committed, they could delay the commission of the crime or change the
scene of the crime to a location which might not be under surveillance.
Granting access to on-going or closed investigative files would also
reveal investigative techniques and procedures, the knowledge of which
could enable individuals planning criminal activity to structure their
future operations in
[[Page 70]]
such a way as to avoid detection or apprehension, thereby neutralizing
law enforcement officer's established investigative tools and
procedures. Further, granting access to investigative files and records
could disclose the identity of confidential sources and other informers
and the nature of the information which they supplied, thereby
endangering the life or physical safety of those sources of information
by exposing them to possible reprisals for having provided information
relating to the criminal activities of those individuals who are the
subjects of the investigative files and records; confidential sources
and other informers might refuse to provide criminal investigators with
valuable information if they could not be secure in the knowledge that
their identities would not be revealed through disclosure of either
their names or the nature of the information they supplied, and this
would seriously impair the ability of the Customs Service to carry out
its mandate to enforce the Customs criminal and related laws.
Additionally, providing access to records contained in the above-listed
systems of records could reveal the identities of undercover law
enforcement officers who compiled information regarding individual's
criminal activities, thereby endangering the life or physical safety of
those undercover officers or their families by exposing them to possible
reprisals.
(c) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which
are dependent upon access having been granted to records pursuant to the
provisions cited in paragraph (b) above, enable individuals to contest
(seek amendment to) the content of records contained in a system of
records and require an agency to note an amended record and to provide a
copy of an individual's statement (of disagreement with the agency's
refusal to amend a record) to persons or other agencies to whom the
record has been disclosed. The Customs Service believes that the reasons
set forth in paragraph (b) above are equally applicable to this
subparagraph and, accordingly, those reasons are hereby incorporated
herein by reference.
(d) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request; such accountings must state the date, nature and purpose
of each disclosure of a record and the name and address of the
recipient. The Customs Service believes that application of this
provision to the above-listed systems of records would impair the
ability of other law enforcement agencies to make effective use of
information provided by the Customs Service in connection with the
investigation, detection and apprehension of violators of the criminal
laws enforced by those other law enforcement agencies. Making
accountings of disclosure available to violators would alert those
individuals to the fact that another agency is conducting an
investigation into their criminal activities, and this could reveal the
geographic location of the other agency's investigation, the nature and
purpose of that investigation, and the dates on which that investigation
was active. Violators possessing such knowledge would thereby be able to
take appropriate measures to avoid detection or apprehension by altering
their operations, by transferring their criminal activities to other
geographical areas or by destroying or concealing evidence which would
form the basis for their arrest. In addition, providing violators with
accountings of disclosure would alert those individuals to the fact that
the Customs Service has information regarding their criminal activities
and could inform those individuals of the general nature of that
information; this, in turn, would afford those individuals a better
opportunity to take appropriate steps to avoid detection or apprehension
for violations of the Customs and related criminal laws.
(e) 5 U.S.C. 552a(c)(4) requires that an agency inform any person or
other agency about any correction or notation of dispute made by the
agency in accordance with 5 U.S.C. 552a(d) of any record that has been
disclosed to the person or agency if an accounting of the disclosure was
made. Since this provision is dependent on an individual's having been
provided an opportunity to contest (seek amendment to) records
pertaining to him, and since the above-listed systems of records are
proposed to be exempted from those
[[Page 71]]
provisions of 5 U.S.C. 552a relating to amendments of records as
indicated in paragraph (c) above, the Customs Service believes that this
provision should not be applicable to the above-listed systems of
records.
(f) 5 U.S.C. 552a(e)(4)(I) requires that an agency publish a public
notice listing the categories of sources for information contained in a
system of records. The Customs Service believes that application of this
provision to the above-listed systems of records could compromise its
ability to conduct investigations and to identify, detect and apprehend
violators of the Customs and related criminal laws for the reasons that
revealing sources for information could 1) disclose investigative
techniques and procedures, 2) result in threatened or actual reprisal
directed to informers by the subject under investigation, and 3) result
in the refusal of informers to give information or to be candid with
criminal investigators because of the knowledge that their identities as
sources might be disclosed.
(g) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term ``maintain'' as
defined in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.''
At the time that information is collected by the Customs Service, there
is often insufficient time to determine whether the information is
relevant and necessary to accomplish a purpose of the Customs Service;
in many cases information collected may not be immediately susceptible
to a determination of whether the information is relevant and necessary,
particularly in the early stages of investigation, and in many cases
information which initially appears to be irrelevant and unnecessary
may, upon further evaluation or upon continuation of the investigation,
prove to have particular relevance to an enforcement program of the
Customs Service. Further, not all violations of law discovered during a
Customs Service criminal investigation fall within the investigative
jurisdiction of the Customs Service; in order to promote effective law
enforcement, it often becomes necessary and desirable to disseminate
information pertaining to such violations to other law enforcement
agencies which have jurisdiction over the offense to which the
information relates. The Customs Service should not be placed in a
position of having to ignore information relating to violations of law
not within its jurisdiction where that information comes to the
attention of the Customs Service through the conduct of a lawful Customs
Service investigation. The Customs Service therefore believes that it is
appropriate to exempt the above-listed systems of records from the
provisions of 5 U.S.C. 552a(e)(1).
(h) 5 U.S.C. 552a(e)(2) requires that an agency 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 Customs Service believes that application of this provision to the
above-listed systems of records would impair the ability of the Customs
Service to conduct investigations and to identify, detect and apprehend
violators of the Customs and related criminal laws for the following
reasons: (1) most information collected about an individual under
criminal investigation is obtained from third parties such as witnesses
and informers, and it is usually not feasible to rely upon the subject
of the investigation as a source for information regarding his criminal
activities, (2) an attempt to obtain information from the subject of a
criminal investigation will often alert that individual to the existence
of an investigation, thereby affording the individual an opportunity to
attempt to conceal his criminal activities so as to avoid apprehension,
(3) in certain instances the subject of a criminal investigation is not
required to supply information to criminal investigators as a matter of
legal duty, and (4) during criminal investigations it is often a matter
of sound investigative procedure to obtain information from a variety of
sources in order to verify information already obtained.
(i) 5 U.S.C. 552a(e)(3) requires that an agency inform each
individual whom it
[[Page 72]]
asks to supply information, on the form which it uses to collect the
information or on a separate form that can be retained by the
individual: the authority which authorizes the solicitation of the
information and whether disclosure of such information is mandatory or
voluntary; the principal purposes for which the information is intended
to be used; the routine uses which may be made of the information; and
the effects on the individual of not providing all or part of the
requested information. The Customs Service believes that the above-
listed systems of records should be exempted from this provision in
order to avoid adverse effects on its ability to identify, detect and
apprehend violators of the Customs and related criminal laws. In many
cases information is obtained by confidential sources or other informers
or by undercover law enforcement officers under circumstances where it
is necessary that the true purpose of their actions be kept secret so as
to not let it be known by the subject of the investigation or his
associates that a criminal investigation is in progress. Further, if it
became known that the undercover officer was assisting in a criminal
investigation, that officer's life or physical safety could be
endangered through reprisal, and, further, under such circumstances it
may not be possible to continue to utilize that officer in the
investigation. In many cases individuals for personal reasons would feel
inhibited in talking to a person representing a criminal law enforcement
agency but would be willing to talk to a confidential source or
undercover officer who they believed was not involved in law enforcement
activities. In addition, providing a source of information with written
evidence that he was a source, as required by this provision, could
increase the likelihood that the source of information would be the
subject of retaliatory action by the subject of the investigation.
Further, application of this provision could result in an unwarranted
invasion of the personal privacy of the subject of the criminal
investigation, particularly where further investigation would result in
a finding that the subject was not involved in any criminal activity.
(j) 5 U.S.C. 552a(e)(5) requires that an agency maintain all records
used by the agency in making any determination about any individual with
such accuracy, relevance, timeliness and completeness as is reasonably
necessary to assure fairness to the individual in the determination.
Since 5 U.S.C. 552a(a)(3) defines ``maintain'' to include ``collect''
and ``disseminate,'' application of this provision to the above-listed
systems of records would hinder the initial collection of any
information which could not, at the moment of collection, be determined
to be accurate, relevant, timely and complete. Similarly, application of
this provision would seriously restrict the necessary flow of
information from the Customs Service to other law enforcement agencies
where a Customs Service investigation revealed information pertaining to
a violation of law which was under the investigative jurisdiction of
another agency. In collecting information during the course of a
criminal investigation, it is not possible or feasible to determine
accuracy, relevance, timeliness or completeness prior to collection of
the information; in disseminating information to other law enforcement
agencies it is often not possible to determine accuracy, relevance,
timeliness or completeness prior to dissemination because the
disseminating agency may not have the expertise with which to make such
determinations. Further, information which may initially appear to be
inaccurate, irrelevant, untimely or incomplete may, when gathered,
grouped, and evaluated with other available information, become more
pertinent as an investigation progresses. In addition, application of
this provision could seriously impede criminal investigators and
intelligence analysts in the exercise of their judgment in reporting on
results obtained during criminal investigations. The Customs Service
therefore believes that it is appropriate to exempt the above-listed
systems of records from the provisions of 5 U.S.C. 552a(e)(5).
(k) 5 U.S.C. 552a(e)(8) requires that an agency make reasonable
efforts to serve notice on an individual when any record on the
individual is made available to any person under compulsory
[[Page 73]]
legal process when such process becomes a matter of public record. The
Customs Service believes that the above-listed systems of records should
be exempt from this provision in order to avoid revealing investigative
techniques and procedures outlined in those records and in order to
prevent revelation of the existence of an on-going investigation where
there is a need to keep the existence of the investigation secret.
(l) 5 U.S.C. 552a(g) provides civil remedies to an individual for an
agency refusal to amend a record or to make a review of a request for
amendment, for an agency refusal to grant access to a record, for an
agency failure to maintain accurate, relevant, timely and complete
records which are used to make a determination which is adverse to the
individual, and for an agency failure to comply with any other provision
of 5 U.S.C. 552a in such a way as to have an adverse effect on an
individual. The Customs Service believes that the above-listed systems
of records should be exempted from this provision to the extent that the
civil remedies provided therein may relate to provisions of 5 U.S.C.
552a from which the above-listed systems of records are proposed to be
exempt. Since the provisions of 5 U.S.C. 552a enumerated in paragraphs
(a) through (k) above are proposed to be inapplicable to the above-
listed systems of records for the reasons stated therein, there should
be no corresponding civil remedies for failure to comply with the
requirements of those provisions to which the exemption is proposed to
apply. Further, the Customs Service believes that application of this
provision to the above-listed systems of records would adversely affect
its ability to conduct criminal investigations by exposing to civil
court action every stage of the criminal investigative process in which
information is compiled or used in order to identify, detect, apprehend
and otherwise investigate persons suspected or known to be engaged in
criminal conduct in violation of the Customs and related laws.
b. Specific exemptions under 5 U.S.C. 552a(k) (2). Pursuant to the
provisions of 5 U.S.C. 552a(k)(2), the Commissioner, United States
Customs Service, hereby exempts certain systems of records, maintained
by the United States Customs Service, from the provisions of 5 U.S.C.
552a(c)(3), (d) (1), (2), (3) and (4), (e) (1) and (4) (G), (H) and (I)
and (f).
1. Exempt systems. The following systems of records, which contain
information of the type described in 5 U.S.C. 552a(k)(2), shall be
exempt from the provisions of 5 U.S.C. 552a listed in paragraph b. above
except as otherwise indicated below and in the general notice of the
existence and character of systems of records which appears elsewhere in
the Federal Register:
00.014--Advice Requests (Legal) (Pacific Region)
00.021--Arrest/Seizure/Search Report and Notice of Penalty File
00.022--Attorney Case File
00.285--Automated Index to Central Enforcement Files
00.270--Background--Record File of Non-Customs Employees
00.067--Bank Secrecy Act Reports File
00.037--Cargo Security File
00.271--Cargo Security Record System
00.041--Cartmen or Lightermen
00.043--Case Files (Regional Counsel--South Central Region)
00.046--Claims Case File
00.053--Confidential Source Identification File
00.057--Container Station Operator Files
00.058--Cooperating Individual Files
00.061--Court Case File
00.069--Customhouse Brokers File (Chief Counsel)
00.287--Customs Automated Licensing Information System (CALIS)
00.077--Disciplinary Action and Resulting Grievances or Appeal Case
Files
00.078--Disclosure of Information File
00.098--Fines, Penalties, and Forfeitures Records
00.099--Fines, Penalties, and Forfeiture Files (Supplemental Petitions)
00.100--Fines, Penalties, and Forfeiture Records (Headquarters)
00.122--Information Received File
00.125--Intelligence Log
00.127--Internal Security Records System
00.129--Investigations Record System
00.133--Justice Department Case File
00.138--Litigation Issue Files
00.140--Lookout Notice
00.155--Narcotics Suspect File
00.159--Notification of Personnel Management Division when an employee
is placed under investigation by the Office of Internal Affairs.
00.171--Pacific Basin Reporting Network
00.182--Penalty Case File
00.186--Personal Search
00.190--Personal Case File
00.197--Private Aircraft/Vessel Inspection Reporting System
[[Page 74]]
00.206--Regulatory Audits of Customhouse Brokers
00.212--Search/Arrest/Seizure Report
00.214--Seizure File
00.224--Suspect Persons Index
00.232--Tort Claims Act File
00.244--Treasury Enforcement Communications System (TECS)
00.258--Violator's Case Files
00.260--Warehouse Proprietor Files
2. Reasons for exemptions. (a) 5 U.S.C. 552a (e)(4)(G) and (f)(1)
enable individuals to be notified whether a system of records contains
records pertaining to them. The Customs Service believes that
application of these provisions (to those of the above-listed systems of
records for which no notification procedures have been provided in the
general notice of the existence and character of systems of records
which appears elsewhere in the Federal Register) would impair the
ability of the Customs Service to successfully complete investigations
and inquires of suspected violators of civil and criminal laws and
regulations under its jurisdiction. In many cases investigations and
inquiries into violations of civil and criminal laws and regulations
involve complex and continuing patterns of behavior. Individuals, if
informed that they have been identified as suspected violators of civil
or criminal laws and regulations, would have an opportunity to take
measures to prevent detection of illegal action so as to avoid
prosecution or the imposition of civil sanctions. They would also be
able to learn the nature and location of the investigation or inquiry
and the type of surveillance being utilized, and they would be able to
transmit this knowledge to co-conspirators. Finally, violators might be
given the opportunity to destroy evidence needed to prove the violation
under investigation or inquiry.
(b) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f) (2), (3) and (5) enable
individuals to gain access to records pertaining to them. The Customs
Service believes that application of these provisions to the above-
listed systems of records would impair its ability to complete or
continue civil or criminal investigations and inquiries and to detect
and apprehend violators of the Customs and related laws. Permitting
access to records contained in the above-listed systems of records would
provide violators with significant information concerning the nature of
the civil or criminal investigation or inquiry. Knowledge of the facts
developed during an investigation or inquiry would enable violators of
criminal and civil laws and regulations to learn the extent to which the
investigation or inquiry has progressed, and this could provide them
with an opportunity to destroy evidence that would form the basis for
prosecution or the imposition of civil sanctions. In addition, knowledge
gained through access to investigatory material could alert a violator
to the need to temporarily postpone commission of the violation or to
change the intended point where the violation is to be committed so as
to avoid detection or apprehension. Further, access to investigatory
material would disclose investigative techniques and procedures which,
if known, could enable violators to structure their future operations in
such a way as to avoid detection or apprehension, thereby neutralizing
investigators' established and effective investigative tools and
procedures. In addition, investigatory material may contain the identity
of a confidential source of information or other informer who would not
want his identity to be disclosed for reasons of personal privacy or for
fear of reprisal at the hands of the individual about whom he supplied
information. In some cases mere disclosure of the information provided
by an informer would reveal the identity of the informer either through
the process of elimination or by virtue of the nature of the information
supplied. If informers cannot be assured that their identities (as
sources for information) will remain confidential, they would be very
reluctant in the future to provide information pertaining to violations
of criminal and civil laws and regulations, and this would seriously
compromise the ability of the Customs Service to carry out its mission.
Further, application of 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f) (2), (3)
and (5) to the above-listed systems
[[Page 75]]
of records would make available attorney's work product and other
documents which contain evaluations, recommendations, and discussions of
ongoing civil and criminal legal proceedings; the availability of such
documents could have a chilling effect on the free flow of information
and ideas within the Customs Service which is vital to the agency's
predecisional deliberative process, could seriously prejudice the
agency's or the Government's position in a civil or criminal litigation,
and could result in the disclosure of investigatory material which
should not be disclosed for the reasons stated above. It is the belief
of the Customs Service that, in both civil actions and criminal
prosecutions, due process will assure that individuals have a reasonable
opportunity to learn of the existence of, and to challenge,
investigatory records and related materials which are to be used in
legal proceedings.
(c) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which
are dependent upon access having been granted to records pursuant to the
provisions cited in subparagraph (b) above, enable individuals to
contest (seek amendment to) the content of records contained in a system
of records and require an agency to note an amended record and to
provide a copy of an individual's statement (of disagreement with the
agency's refusal to amend a record) to persons or other agencies to whom
the record has been disclosed. The Customs Service believes that the
reasons set forth in subparagraph (b) above are equally applicable to
this subparagraph, and, accordingly, those reasons are hereby
incorporated herein by reference.
(d) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request; such accountings must state the date, nature and purpose
of each disclosure of a record and the name and address of the
recipient. The Customs Service believes that application of this
provision to the above-listed systems of records would impair the
ability of the Customs Service and other law enforcement agencies to
conduct investigations and inquiries into civil and criminal violations
under their respective jurisdictions. Making accountings available to
violators would alert those individuals to the fact that the Customs
Service or another law enforcement authority is conducting an
investigation or inquiry into their activities, and such accountings
could reveal the geographic location of the investigation or inquiry,
the nature and purpose of the investigation or inquiry and the nature of
the information disclosed, and the dates on which that investigation or
inquiry was active. Violators possessing such knowledge would thereby be
able to take appropriate measures to avoid detection or apprehension by
altering their operations, transferring their activities to other
locations or destroying or concealing evidence which would form the
basis for prosecution or the imposition of civil sanctions.
(e) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term ``maintain'' as
defined in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.''
At the time that information is collected by the Customs Service there
is often insufficient time to determine whether the information is
relevant and necessary to accomplish a purpose of the Customs Service;
in many cases information collected may not be immediately susceptible
to a determination of whether the information is relevant and necessary,
particularly in the early stages of investigation or inquiry, and in
many cases information which initially appears to be irrelevant and
unnecessary may, upon further evaluation or upon continuation of the
investigation or inquiry, prove to have particular relevance to an
enforcement program of the Customs Service. Further, not all violations
of law uncovered during a Customs Service investigation or inquiry fall
within the civil or criminal jurisdiction of the Customs Service; in
order to promote effective law enforcement it often becomes necessary
and desirable to disseminate information pertaining to such violations
to other law enforcement agencies
[[Page 76]]
which have jurisdiction over the offense to which the information
relates. The Customs Service should not be placed in a position of
having to ignore information relating to violations of law not within
its jurisdiction where that information comes to the attention of the
Customs Service through the conduct of a lawful Customs Service civil or
criminal investigation or inquiry. The Customs Service therefore
believes that it is appropriate to exempt the above-listed systems of
records from the provisions of 5 U.S.C. 552a(e)(1).
c. Specific exemptions under 5 U.S.C. 552a(k)(5). Pursuant to the
provisions of 5 U.S.C. 552a(k)(5), the Commissioner, United States
Customs Service, hereby exempts the Internal Security Records System
from the provisions of 5 U.S.C. 552a (c)(3), (d) (1), (2), (3) and (4),
(e) (1) and (4) (G), (H) and (I) and (f). The records maintained in the
exempt system of records are of the type described in 5 U.S.C.
552a(k)(5): ``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, but only to the extent that 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, under an implied promise that the identity of the source
would be held in confidence.''
Thus to the extent that the records in this system can be disclosed
without revealing the identity of a confidential source, they are not
within the scope of this exemption and are subject to all the
requirements of 5 U.S.C. 552a, except where those records contain other
information which is exempt under the provisions of 5 U.S.C. 552a(k)(2)
for the reasons stated under paragraph b. above.
The sections of 5 U.S.C. 552a from which this system of records is
exempt include in general those providing for individuals' access to or
amendment of records. When such access or amendment would cause the
identity of a confidential source to be revealed, it would impair the
future ability of the Customs Service to compile investigatory material
for the purpose of determining suitability, eligibility, or
qualifications for Federal civilian employment, Federal contracts, or
access to classified information.
In addition, the systems shall be exempt from 5 U.S.C. 552a(e)(1) which
requires that an agency maintain in its records only such information
about an individual as is relevant and necessary to accomplish a purpose
of the agency required to be accomplished by statute or executive order.
The Customs Service believes that to fulfill the requirements of 5
U.S.C. 552a(e)(1) would unduly restrict the agency in its information
gathering inasmuch as it is often not until well after the investigation
that it is possible to determine the relevance and necessity of
particular information.
If any investigations within the scope of 5 U.S.C. 552a(k)(5) become
involved with civil or criminal matters, exemptions from 5 U.S.C. 552a
could also be asserted under 5 U.S.C. 552a (k)(2) or (j)(2).
United States Secret Service
Notice of rules exempting certain systems from requirements of the
Privacy Act
(a) In general. The Director of the U.S. Secret Service hereby
issues rules exempting the Criminal Investigation Information System of
records, the Non-Criminal Investigation Information System of records,
and the Protection Information System of records from the provisions of
certain subsections of 5 U.S.C. 552a, the Privacy Act of 1974. The
purpose of the exemptions is to maintain the confidentiality of
information compiled for the purpose of criminal, non-criminal, and
protective investigations.
(b) Authority. These rules are promulgated pursuant to the authority
vested in the Secretary of the Treasury by 5 U.S.C. 552a (j) and (k) and
pursuant to the authority vested in the Director, U.S. Secret Service by
paragraph 123(c) of subpart C of part 1 of subtitle A of title 31 of the
Code of Federal Regulations.
(c) Exempted Systems.
[[Page 77]]
I. U.S. Secret Service Criminal Investigation Information System
The Criminal Investigation Information System is further described in
``Notices of Records Systems'' published by the General Services
Administration.
(1) Provisions from which exempted. The Criminal Investigation
Information System maintained by the Secret Service contains records
described in 5 U.S.C. 552a(j) and (k), the Privacy Act of 1974.
Exemptions are claimed for such described records only where appropriate
from the following provisions of the Privacy Act of 1974 subsections (c)
(3) and (4); (d) (1), (2), (3) and (4); (e) (1), (2), and (3); (e) (4)
(G), (H) and (I); (e) (5) and (8); (f) and (g) of 5 U.S.C. 552a.
(2) Reasons for claimed exemptions. a. 5 U.S.C. 552a(c)(3): This
provision of the Privacy Act provides for the release of the disclosure
accounting required by 5 U.S.C. 552a(c) (1) and (2) to the individual
named in the record at his request. The reasons why the Criminal
Investigation Information System is exempted from the foregoing
provision are as follows:
(i) The release of accounting disclosures would put the subject of a
criminal investigation on notice of the existence of an investigation
and that he is the subject of that investigation;
(ii) It would provide the subject of a criminal investigation with
an accurate accounting of the date, nature, and purpose of each
disclosure and the name and address of the person or agency to whom the
disclosure is made. Obviously, the release of such information to the
subject of a criminal investigation would provide him with significant
information concerning the nature of the investigation and could result
in impeding or compromising the efforts of law enforcement personnel to
detect and arrest persons suspected of criminal activity;
(iii) Disclosure to the individual of the disclosure accounting
after the investigation is closed would alert the individual as to which
agencies were investigating him and would put him on notice concerning
the scope of his suspected criminal activities and could aid him in
avoiding detection and apprehension.
b. 5 U.S.C. 552a (c)(4); (d); (e)(4) (G) and (H); (f) and (g): The
foregoing provisions of the Privacy Act relate to an individual's right
to notification of the existence of records pertaining to him and access
to such records; the agency procedures relating to notification, access
and contest of the information contained in such records; and the civil
remedies available to the individual in the event of adverse
determinations by an agency concerning access to or amendment of
information contained in record systems. The reasons why the Criminal
Investigation Information System of records is exempted from the
foregoing provisions are as follows:
(i) To notify an individual at his request of the existence of
records pertaining to him in the Criminal Investigation Information
System would inform the individual of the existence of an investigation
and that he is the subject of that investigation. This would enable the
individual to avoid detection and would further enable him to inform co-
conspirators of the fact that an investigation is being conducted;
(ii) To permit access to the records contained in the Criminal
Investigation Information System would not only inform an individual
that he is or was the subject of a criminal investigation, but would
also provide him with significant information concerning the nature of
the investigation which might enable him to avoid detection or
apprehension;
(iii) To grant access to an on-going or closed criminal
investigative file could interfere with Secret Service investigative and
enforcement proceedings, deprive co-defendants of a right to a fair
trial or an impartial adjudication, constitute an unwarranted invasion
of the personal privacy of others, disclose the identity of confidential
sources and reveal confidential information supplied by such sources,
and disclose investigative techniques and procedures, or endanger the
life or physical safety of law enforcement personnel, informants,
witnesses, and other persons supplying information to investigators.
c. 5 U.S.C. 552a(e)(4)(I). This provision of the Privacy Act
requires the publication of the categories of sources of
[[Page 78]]
records, in each system of records. The reasons why the Criminal
Investigation Information System of records is exempted from the
foregoing provision are as follows:
(i) Revealing sources of information could disclose investigative
techniques and procedures;
(ii) Revealing sources of information could result in retaliation
and threat of reprisal by the subject under investigation against such
sources;
(iii) Revealing sources of information could cause witnesses,
informants and others who supply information to criminal investigators
to refrain from giving such information because of fear of reprisal, or
fear of breach of promises of anonymity and confidentiality;
(iv) Revealing sources of information could result in the refusal of
some sources to give full and complete information or to be candid with
investigators because of the knowledge that the identity of such sources
may be disclosed.
d. 5 U.S.C. 552a(e)(1): This provision of the Privacy Act 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. The reasons why the Criminal Investigation Information System of
records is exempted from the foregoing provisions are as follows:
(i) In a criminal investigation it is difficult to accurately
determine the relevancy and necessity of information during the process
of information gathering. Only after the information is evaluated can
the relevancy and necessity of such information be ascertained;
(ii) In a criminal investigation, the Secret Service often obtains
information concerning the violations of laws other than those within
the scope of its criminal investigative jurisdiction. In the interest of
effective law enforcement, the Secret Service should retain this
information as it may aid in establishing patterns of criminal activity,
and provide valuable leads for those law enforcement agencies charged
with enforcing other segments of the criminal law;
(iii) In interviewing persons, or obtaining other forms of evidence
during a criminal investigation, information will be supplied to the
investigator which relates to matters which are ancillary to the main
purpose of the investigation but which may relate to matters under the
investigative jurisdiction of another agency. Such information is not
readily susceptible to segregation.
e. 5 U.S.C. 552a(e)(2): This provision of the Privacy Act 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 right, benefits and
privileges under Federal programs. The reasons why the Criminal
Investigation Information System is exempted from the foregoing
provision are as follows:
(i) In certain instances, the subject of a criminal investigation is
not required to supply information to investigators as a matter of legal
right. In those instances, information relating to a subject's criminal
activities must be obtained from other sources;
(ii) A requirement that information be collected from an individual
who is the subject of a criminal investigation would put the individual
on notice of the existence of the investigation and could enable him to
avoid detection or apprehension;
(iii) In a criminal investigation it is necessary to obtain evidence
from a variety of sources other than the subject of the investigation in
order to accumulate and verify the evidence necessary for the successful
prosecution of persons suspected of violating the criminal laws.
f. 5 U.S.C. 552a(e)(3): This provision of the Privacy Act requires
an agency to inform each individual whom it asks to supply information
of the authority which authorizes the solicitation of the information
and whether disclosure of such information is mandatory or voluntary;
the principal purposes for which the information is intended to be used;
the routine uses which may be made of the information; and the effect on
the individual of not providing the requested information. The reasons
why the Criminal Investigation Information System is exempted from the
foregoing provision are as follows:
[[Page 79]]
(i) Informing each individual who is asked to supply information in
a criminal investigation of the information required under the foregoing
provision could inform the individual of the existence of a confidential
investigation; reveal the identity of confidential sources of
information; and endanger the life or physical safety of confidential
informants;
(ii) Informing each individual who is asked to supply information in
a criminal investigation of the information required under the foregoing
provision could result in an unwarranted invasion of the privacy of
individuals who may be the subject of a criminal investigation or who
are suspected of engaging in criminal activity;
(iii) Informing each individual who is asked to supply information
in a criminal investigation of the information required under the
foregoing provision would inhibit such individuals from supplying the
requested information and thereby present a serious impediment to the
successful investigation and prosecution of violations of the criminal
law.
g. 5 U.S.C. 552a(e)(5): This provision of the Privacy Act requires
an agency to maintain all records which are used in making any
determination about an individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination. The reasons why the
Criminal Investigation Information System is exempted from the foregoing
provisions are as follows:
(i) In gathering information during the course of a criminal
investigation it is usually not possible to determine in advance what
information is accurate, relevant, timely, and complete. Seemingly
nonrelevant or untimely information may acquire new significance as an
investigation progresses;
(ii) The restrictions on the maintenance of the records contained in
the foregoing provision could impede investigators and intelligence
analysts in the exercise of their judgment and discretion in reporting
on criminal investigations;
(iii) Compliance with the records maintenance criteria listed in the
foregoing provision could require the periodic up-dating of Secret
Service criminal investigations to insure that the records maintained in
the system remain timely and complete.
h. 5 U.S.C. 552a(e)(8): This provision of the Privacy Act requires
an agency to make reasonable efforts to serve notice to an individual
when any record on such individual is made available to any person under
compulsory legal process becomes a matter of public record. The reasons
why the Criminal Investigation Information System is exempted from the
foregoing provision are as follows:
(i) The notice requirement of the foregoing provision could impede
law enforcement by revealing investigative techniques and procedures;
(ii) The notice requirement of the foregoing provision could reveal
the existence of confidential investigations to individuals who are the
subjects of such investigations.
i. The foregoing exemptions are claimed for materials maintained in
the Criminal Investigation Information System to the extent that such
materials contain information and reports described in 5 U.S.C. 552a(j)
(2). Further, records maintained in the Criminal Investigation
Information System described in 5 U.S.C. 552a(k) are exempted from
subsections (c)(3), (d) (1), (2), (3) and (4), (e)(1), (e)(4) (G), (H)
and (I) and (f) of 5 U.S.C. 552a for the reasons previously stated.
II. U.S. Secret Service Non-Criminal Investigation Information System
The Non-Criminal Investigation Information System is further described
in ``Notices of Records Systems'' published by the General Services
Administration.
(1) Provisions from which exempted: The Non-Criminal Investigation
Information System maintained by the Secret Service contains records
similar to those described in 5 U.S.C. 552a(k), the Privacy Act of 1974.
Exemptions are claimed for such described records where appropriate from
the following provisions of the Privacy Act of 1974: subsections (c)(3),
(d) (1), (2), (3) and (4), (e)(1), (e)(4) (G), (H) and (I) and (f) of 5
U.S.C. 552a.
(2) Reasons for claimed exemptions. a. 5 U.S.C. 552a(c)(3): This
provision of the
[[Page 80]]
Privacy Act provides for the release of the disclosure accounting
required by 5 U.S.C. 552a(c) (1) and (2) to the individual named in the
record at his request. The reasons why the Non-Criminal Investigation
Information System is exempted from the foregoing provision are as
follows;
(i) The release of accounting disclosures would put the subject of
an investigation on notice of the existence of an investigation and that
he is the subject of that investigation;
(ii) It would provide the subject of an investigation with an
accurate accounting of the date, nature, and purpose of each disclosure
and the name and address of the person or agency to whom the disclosure
is made. Obviously, the release of such information to the subject of an
investigation would provide him with significant information concerning
the nature of the investigation and could result in impeding or
compromising the efforts of law enforcement personnel to obtain
information essential to the successful conclusion of the investigation;
(iii) Disclosure to the individual of the disclosure accounting
after the investigation is closed would alert the individual as to which
agencies were investigating him; put him on notice concerning the scope
of his suspected activities and reveal investigatory techniques and the
identity of confidential informants. It could result in an invasion of
privacy of private citizens who provide information in connection with a
particular investigation.
b. 5 U.S.C. 552a; (d), (e)(4) (G), (H) and (f): The foregoing
provisions of the Privacy Act relate to an individual's right to
notification of the existence of records pertaining to him and access to
such records and the agency procedures relating to notification, access
and contest of the information contained in such records. The reasons
why the Non-Criminal Investigation Information System of records is
exempted from the foregoing provisions are as follows:
(i) To notify an individual at his request of the existence of
records pertaining to him in the Non-Criminal Investigation Information
System would inform the individual of the existence of an investigation
and that he is the subject of that investigation. This could enable the
individual to secrete or destroy evidence essential to the successful
completion of the investigation;
(ii) To permit access to the records contained in the Non-Criminal
Investigation System would not only inform an individual that he is or
was the subject of an investigation, but would also provide him with
significant information concerning the nature of the investigation which
might enable him to avoid detection or apprehension;
(iii) To grant access to an on-going or closed non-criminal
investigative file would interfere with Secret Service investigative and
enforcement proceedings; deprive other parties involved in the
investigations of a right to a fair trial or an impartial adjudication;
constitute an unwarranted invasion of the personal privacy of others;
disclose the identity of confidential sources and reveal confidential
information supplied by such sources; and disclose investigative
techniques and procedures.
c. 5 U.S.C. 552a 3 (e)(4)(I). This provision of the Privacy Act
requires the publication of the categories of sources of records in each
system of records. The reasons why the Non-Criminal Investigation
Information System of records is exempted from the foregoing provision
are as follows:
(i) Revealing sources of information would disclose investigative
techniques and procedures;
(ii) Revealing sources of information would result in retaliation
and threat of reprisal by the subject under investigation against such
sources;
(iii) Revealing sources of information could cause witnesses,
informants and others who supply information to investigators to refrain
from giving such information because of fear of reprisal, or fear of
breach of promises of anonymity and confidentiality;
(iv) Revealing sources of information could result in the refusal of
some sources to give full and complete information or to be candid with
investigators because of the knowledge that the identity of such sources
may be disclosed.
d. 5 U.S.C. 552a(e)(1): This provision of the Privacy Act requires
each agency to maintain in its records only such
[[Page 81]]
information about an individual as is relevant and necessary to
accomplish a purpose of the agency. The reasons why the Criminal
Investigation Information System of records is exempted from the
foregoing provision are as follows:
(i) In a non-criminal investigation it is difficult to determine
accurately the relevancy and necessity of information during the process
of information gathering. It is only after the information is evaluated
that the relevancy and necessity of such information can be ascertained;
(ii) In a non-criminal investigative case, the Secret Service often
obtains information concerning the violation of laws other than those
within the scope of its jurisdiction. In the interest of effective law
enforcement, it is desirable that the Secret Service retain this
information since it can aid in establishing patterns of unlawful
activity and provide valuable leads for those law enforcement agencies
that are charged with enforcing other segments of the criminal,
regulatory and civil laws;
(iii) In interviewing persons, or obtaining other forms of evidence
during an investigation, information will be supplied to the
investigator which relates to matters which are ancillary to the main
purpose of the investigation but which may relate to matters under the
investigative jurisdiction of another agency. Such information is not
readily susceptible to segregation.
e. The foregoing exemptions are claimed for records maintained in
the Non-Criminal Investigation Information System only to the extent
that such records contain materials described in subsection (k) of 5
U.S.C. 552a, the Privacy Act of 1974.
III. U.S. Secret Service Protection Information System
The Protection Information System is further described in ``Notices of
Records Systems'' published by the General Services Administration.
(1) Provisions from which exempted. The Protection Information
System maintained by the Secret Service contains records similar to
those described in 5 U.S.C. 552a (j) and (k), the Privacy Act of 1974.
The Protection Information System contains material relating to criminal
investigations concerned with the enforcement of criminal statutes
involving the security of persons and property. Further, this system
contains records described in 5 U.S.C. 552a(k) including, but not
limited to, classified materials and investigatory material compiled for
law enforcement purposes. There are maintained in the Protection
Information System, in addition to the categories of records described
above, records which are considered necessary to assuring the safety of
individuals protected by the Secret Service Pursuant to the provisions
of 18 U.S.C. 3056 and Pub. L. 90-331 (5 U.S.C. 522a(k)(3)). Exemptions
are claimed for the above described records only where appropriate from
the following provisions of the Privacy Act of 1974: subsections (c)(3)
and (d) (1), (2), (3) and (4); (e) (1), (2) and (3); (e)(4) (G), (H) and
(I); (e) (5) and (8); (f) and (g) of 5 U.S.C. 552a.
(2) Reasons for claimed exemptions. a. 5 U.S.C. 552a(c)(3): This
provision of the Privacy Act provides for the release of the disclosure
accounting required by 5 U.S.C. 552a(c) (1) and (2) to the individual
named in the record at his request. The reasons why the Protection
Information System is exempted from the foregoing provision are as
follows:
(i) The release of accounting disclosures would put the subject of a
protective intelligence file on notice of the existence of an
investigation and that he is the subject of that investigation;
(ii) It would provide the subject of a protective intelligence file
with an accurate accounting of the date, nature, and purpose of each
disclosure and the name and address of the person or agency to whom the
disclosure is made. Obviously, the release of such information to the
subject of a protective intelligence file would provide him with
significant information concerning the nature of the investigation, and
could result in impeding or compromising the efforts of Secret Service
personnel to detect persons suspected of criminal activities or to
collect information necessary for the proper evaluation of persons
considered to be of protective interest;
[[Page 82]]
(iii) Disclosures of the disclosure accounting after the protective
intelligence file is closed would alert the individual as to which
agencies were investigating him and would put him on notice concerning
the scope of the protective intelligence investigation and could aid him
in avoiding detection.
b. 5 U.S.C. 552a (c)(4); (d); (e)(4) (G) and (H); (f) and (g): The
foregoing provisions of the Privacy Act relate to an individual's right
to notification of the existence of records pertaining to him and access
to such records; the agency procedures relating to notification; access
and contest of the information contained in such records; and the civil
remedies available to the individual in the event of adverse
determinations by an agency concerning access to or amendment of
information contained in record systems. The reasons why the Protection
Information System of records is exempted from the foregoing provisions
are as follows:
(i) To notify an individual at his request of the existence of
records pertaining to him in the Protection Information System would be
injurious to the protective intelligence activities of the Secret
Service if the existence of files on the subject were even acknowledged.
Granting access to the criminal and the unstable person would
necessarily lead to knowledge of the sources of Secret Service
information and could endanger other enforcement and intelligence
operations and confidential sources including co-workers, friends and
relatives of the subjects of such records;
(ii) Limitation on access to the materials contained in the
Protection Information System is considered necessary to the
preservation of the utility of intelligence files and in safeguarding
those persons the Secret Service is authorized to protect. Without such
denial of access the Protection Information System could adversely
effect in the poor quality of information available; in compromised
confidential sources; in the inability to keep track of persons of
protective interest; and from interference with Secret Service
protective intelligence activities by individuals gaining access to
protective intelligence files. Many of the persons on whom records are
maintained in the Protection Information System suffer from mental
aberrations. Knowledge of their condition and progress comes from
authorities, family members and witnesses. Many times this information
comes to the Secret Service as a result of two party conversations where
it would be impossible to hide the identity of informants. Sources of
information must be developed, questions asked and answers recorded.
Trust must be extended and guarantees of confidentiality and anonymity
must be maintained. Allowing access of information of this kind to
individuals who are the subjects of protective interest may well lead to
violence directed against an informant by a mentally disturbed
individual;
(iii) Permitting access to protective intelligence files would
reveal techniques and procedures, not only of Secret Service protective
investigations but could reveal the criteria by which protective
intelligence subjects are evaluated;
(iv) To notify an individual at his request of the existence of
records pertaining to him in the Protection Information System would
inform the individual of the existence of an investigation and that he
is the subject of protective interest. This would enable the individual
to avoid detection and would further enable him to inform co-
conspirators of the fact that an investigation is being conducted;
(v) To permit access to the records contained in the Protection
Information System would not only inform an individual that he is or was
the subject of protective interest, but would also provide him with
significant information concerning the nature of any investigation
concerning his activities;
(vi) To grant access to current or closed protective intelligence
files would interfere with Secret Service investigative and enforcement
proceedings; deprive co-defendants of a right to a fair trial or an
impartial adjudication; constitute an unwarranted invasion of the
personal privacy of others; disclose the identity of confidential
[[Page 83]]
sources; reveal confidential information supplied by such sources; and
disclose investigative techniques and procedures, and endanger the life
or physical safety of law enforcement personnel, informants, witnesses,
and other persons suppling information to investigators.
c. 5 U.S.C. 552a(e)(4)(I). This provision of the Privacy Act
requires the publication of the categories of sources of records in each
system of records. The reasons why the Protection Information System of
records is exempted from the foregoing provision are as follows:
(i) Revealing sources of information would disclose investigative
techniques and procedures;
(ii) Revealing sources of information would result in retaliation
and threat of reprisal by the subject of a protective intelligence file;
(iii) Revealing sources of information would cause witnesses,
informants and others who supply information to Secret Service
investigators to refrain from giving such information because of fear of
reprisal, or fear of breach of promises of anonymity and
confidentiality;
(iv) Revealing sources of information would result in the refusal of
some sources to give full and complete information or to be candid with
investigators because of the knowledge that the identity of such sources
may be disclosed.
d. 5 U.S.C. 552a(e)(1): This provision of the Privacy Act 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. The reasons why the Protection Information System of records is
exempted from the foregoing provisions are as follows:
(i) In gathering protective intelligence information it is difficult
to determine accurately the relevancy and necessity of information
during the process of information gathering. It is only after the
information is evaluated that the relevancy and necessity of such
information can be ascertained;
(ii) In carrying out protective intelligence responsibilities the
Secret Service often obtains information concerning the violation of
laws other than those within the scope of its protective intelligence
jurisdiction. In the interest of effective law enforcement, it is
desirable that the Secret Service retain this information since it can
aid in establishing patterns of criminal activity and provide valuable
leads for those law enforcement agencies that are charged with enforcing
other segments of the criminal law;
(iii) During protective intelligence investigations, information
will be supplied to the investigator which relates to matters which are
ancillary to the main purpose of the investigation but which may relate
to matters under the investigative jurisdiction of another agency. Such
information is not readily susceptible to segregation.
e. 5 U.S.C. 552a(c)(2): This provision of the Privacy Act 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 reasons why the Protection
Information System is exempted from the foregoing provision are as
follows:
(i) In certain instances, where the protective intelligence subject
is suspected of criminal activity, he is not required to supply
information to investigators as a matter of legal right. In those
instances, information relating to a subject's criminal activities must
be obtained from other sources;
(ii) A requirement that information be collected from an individual
who is of protective interest would put the individual on notice of the
existence of the intelligence investigation and such knowledge would
enable him to avoid detection in the event that the individual attempted
to physically harm persons protected by the Secret Service;
(iii) In a protective intelligence investigation where the subject
of the investigation is suspected of engaging in criminal activities it
is necessary to obtain evidence from a variety of sources other than the
subject of the investigation in order to accumulate and verify the
evidence necessary for the successful prosecution of persons suspected
of violating the criminal laws.
[[Page 84]]
f. 5 U.S.C. 552a(e)(3): This provision of the Privacy Act requires
an agency to inform each individual whom it asks to supply information
of the authority which authorizes the solicitation of the information
and whether disclosure of such information is mandatory or voluntary;
the principle purposes for which the information is intended to be used;
the routine uses which may be made of the information; and the effect on
the individual of not providing the requested information. The reasons
why the Protection Information System is exempted from the foregoing
provision are as follows:
(i) Informing each individual who is asked to supply information in
a protective intelligence investigation of the information required
under the foregoing provision would inform the individual of the
existence of a confidential investigation; reveal the identity of
confidential sources of information; and endanger the life or physical
safety of confidential informants;
(ii) Informing each individual who is asked to supply information in
a protective intelligence investigation of the information required
under the foregoing provision would result in an unwarranted invasion of
the privacy of individuals who may be the subject of a criminal
investigation or who are suspected of engaging in criminal activity;
(iii) Informing each individual who is asked to supply information
in a protective intelligence investigation of the information required
under the foregoing provision would inhibit such individuals from
supplying the requested information and thereby present a serious
impediment to the success of the Secret Service in carrying out its
protective intelligence activities.
g. 5 U.S.C. 552a(e)(5): This provision of the Privacy Act requires
an agency to maintain all records which are used in making any
determination about an individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination. The reasons why the
Protection Information System is exempted from the foregoing provisions
are as follows:
(i) In gathering information during the course of a protective
intelligence investigation it is usually not possible to determine in
advance what information is accurate, relevant, timely, and complete.
Seemingly nonrelevant or untimely information may acquire new
significance as an investigation progresses;
(ii) The restrictions on the maintenance of the records contained in
the foregoing provision would impede investigators and intelligence
analysts in the exercise of their judgment and discretion in reporting
on protective intelligence subjects;
(iii) Compliance with the records maintenance criteria listed in the
foregoing provision would require the periodic up-dating of Secret
Service protective intelligence files to insure that the records
maintained in the system remain timely and complete.
h. 5 U.S.C. 552a(e)(8): This provision of the Privacy Act requires
an agency to make reasonable efforts to serve notice to an individual
when any record on such individual is made available to any person under
compulsory legal process becomes a matter of public record. The reasons
why the Protection Information System is exempted from the foregoing
provision are as follows:
(i) The notice requirement of the foregoing provision could impede
Secret Service protective efforts by revealing techniques and
procedures;
(ii) The notice requirements of the foregoing provision could reveal
the existence of confidential investigations to individuals who are the
subjects of such investigations.
i. The foregoing exemptions are claimed for materials maintained in
the Protection Information System to the extent that such materials
contain information and reports described in 5 U.S.C. 552a(j)(2).
Further, records maintained in the Protection Information System
described in 5 U.S.C. 552a(k) are to be exempted from subsections
(c)(3), (d) (1), (2), (3) and (4); (e)(1), (e)(4) (G), (H) and (I) and
(f) of 5 U.S.C. 552a for the reasons previously stated.
[[Page 85]]
Bureau of Alcohol, Tobacco and Firearms
notice of systems exempt from certain provisions of the privacy act of
1974
In accordance with 5 U.S.C. 552a (j) and (k), general notice is
hereby given of rulemaking under the Privacy Act of 1974 by the
Director, Bureau of Alcohol, Tobacco and Firearms. The Director, Bureau
of Alcohol, Tobacco and Firearms, exempts the systems of records
identified in paragraphs (a), (b) and (c) of this section from certain
provisions of the Privacy Act of 1974 as set forth in such paragraphs.
exemptions
(a) General exemptions. Under the provisions of 5 U.S.C. 552a(j),
the Director, Bureau of Alcohol, Tobacco and Firearms, hereby determines
that certain provisions of the Privacy Act of 1974 shall not apply to
the Treasury--ATF Criminal Investigation Report System.
(1) The Privacy Act of 1974 creates several methods by which
individuals who are of record in this system of records may discover
information collected about their criminal activities. These methods are
as follows: subsections (e)(4)(G) and (f)(1) allow individuals to
ascertain whether their criminal activities have been recorded;
subsections (d)(1), (e)(4)(H), and (f) (2), (3) and (5) establish the
ability of individuals to gain access into the investigatory files
maintained on their criminal activities; subsections (d) (2), (3) and
(4), (e)(4)(H), and (f)(4) presuppose access and further enable
individuals to contest the contents of their criminal files; subsection
(c)(3) allows individuals to discover if other law enforcement agencies
are investigating their criminal activities and subsection (e)(4)(I)
discloses the categories of sources of records in the system. Since
these subsections are variations upon the criminal subjects' ability to
ascertain whether a Federal law enforcement agency has uncovered their
criminal misdeeds, these subsections have been grouped together for
purposes of this notice.
(A) With respect to subsections (e)(4)(G) and (f)(1), the Bureau of
Alcohol, Tobacco and Firearms believes that imposition of these
requirements would identify to individuals the fact that they are of
record, and in so doing, compromise the ability of ATF to successfully
complete an investigation into violations of law. Where individuals have
the ability to discover the location and specific character of their
investigative records in this system, they will be able to determine the
nature of the investigation, the type of surveillance utilized and the
precise stage of the investigation into their criminal activities. When
individuals can determine that the investigation into their criminal
activities has been closed, they are placed on notice that they may
safely resume their illegal conduct. For these reasons, ATF seeks
exemption of this system from subsections (e)(4)(G) and (f)(1).
(B) With respect to subsections (d)(1), (e)(4)(H) and (f) (2), (3)
and (5), the Bureau of Alcohol, Tobacco and Firearms believes that
access into criminal investigative files poses present and future
dangers on the ability of this agency to effectively enforce the
criminal laws committed to its administration. Where individuals may
break into an ongoing criminal investigative file they discover the
collection of facts which will form the basis of their arrests.
Knowledge of these facts enables them to destroy valuable contraband or
other evidence of their activities prior to lawful seizure and thereby
prevent enforcement proceedings. The ongoing investigative file may
reveal that reasonable cause exists to believe that a crime is about to
be committed. Disclosure of these facts enable individuals with criminal
intent to either postpone the commission of their criminal acts or
relocate the scene of the crime to an alternatively acceptable location
where Federal agents will not be anticipated. After a criminal
investigation has been closed, information in the file nevertheless
reveals to the investigated subjects the techniques and procedures
utilized by a law enforcement agency. Knowledge of these investigative
techniques and procedures by individuals and groups devoted to crime
enables them to structure their future operations in such a way as to
place these activities beyond discovery until after the crime has
[[Page 86]]
been committed. Thus, the ability of Federal agents to prevent crime by
apprehension of the criminals at the precise moment of commission of the
criminal act is seriously jeopardized.
Disclosure of investigative techniques and procedures could further
render the commission of the criminal act itself not susceptible to
reconstruction and tracing to its originator. Armed with a knowledge of
forensic science and the applied technology of criminal investigation
contained in their own files, individuals and groups of individuals
devoted to crime have the necessary information to develop counter-
techniques which may effectively neutralize established investigative
tools and procedures. Additionally, a closed criminal file reveals the
identities of informers and undercover agents who have possibly risked
their lives and the lives of their families by contributing information
concerning the criminal activities of individuals and groups.
Oftentimes, friends, family, neighbors and business associates of the
subject under investigation, secure in the assured anonymity of a
Federal criminal investigation, are not afraid to furnish valuable
information relating to the criminal activities of the subjects of
investigation. Where criminal subjects have access to the confidential
information in their criminal files (with or without the identities of
the sources) they can determine from the nature of the information and
by process of elimination the identity of those individuals against whom
to retaliate. This legitimate fear of reprisal exists in the minds of
neighbors, relatives, and co-workers, especially with regard to
individuals who are violence-prone or emotionally unstable. As a direct
result of this fear of discovery through access to the investigative
file, sources close to the criminal subject would decline to be
interviewed or otherwise refrain from contact with the Bureau. This
absence of information would render the Bureau unable to comply
effectively with the mandates of the statutes committed to its
administration. For these reasons, ATF seeks exemption of this system
from subsections (d)(1), (e)(4)(H) and (f) (2), (3) and (5).
(C) With respect to subsections (d) (2), (3) and (4), (e)(4)(H), and
(f)(4), which presuppose access and provide for contest of the content
of records contained in this system, the Bureau of Alcohol, Tobacco and
Firearms believes that the reasons set forth in subparagraph (B) of
paragraph (1) of this subsection are equally applicable to this
subparagraph, and are hereby incorporated by reference. For these
reasons, ATF seeks exemption of this system from subsections (d) (2),
(3) and (4), (e)(4)(H) and (f)(4).
(D) With respect to subsection (c)(3) which provides for making the
accounting of disclosures available to the requester, the Bureau of
Alcohol, Tobacco and Firearms believes that access to this accounting by
a subject under investigation would impair the ability of other law
enforcement agencies to utilize information developed by ATF for their
investigations into violations of criminal laws not enforced by ATF.
Where the interstate criminal activities of individuals or groups span
the jurisdictions of several law enforcement agencies, information will
be shared by these agencies in their attempts to bring these violators
to justice. Disclosure of the accounting will alert such individuals to
which agencies are conducting investigations, the geographic locations
of such investigations, the nature and purpose of the investigations,
and the date during which the investigation received information
maintained by ATF. Supplied with this information, individuals or groups
may ascertain which of their criminal activities have been discovered
and the law enforcement agencies which are in current pursuit. For these
reasons, ATF seeks exemption of this system from subsection (c)(3).
(E) With respect to subsection (e)(4)(I), which requires publication
of the categories of sources for a record system, the Bureau of Alcohol,
Tobacco and Firearms believes that imposition of subsection (e)(4)(I)
upon this system would reveal investigative techniques and procedures.
For this reason, ATF seeks exemption of this system from subsection
(e)(4)(I).
(2) The Privacy Act of 1974 provides, at subsection (e)(1), that an
agency may maintain only such information about an individual as is
relevant and necessary to accomplish a purpose of
[[Page 87]]
the agency required to be accomplished by a statute or executive order
of the President. The term ``maintain'' is defined in the Privacy Act to
include the initial collection of information. The Bureau of Alcohol,
Tobacco and Firearms believes that exemption of this system from
subsection (e)(1) is appropriate because not all violations uncovered in
an investigation are capable of enforcement by ATF. Where individuals or
groups are engaged in a multiplicity of criminal violations, this
evidence should be recorded by ATF and transferred to the appropriate
law enforcement agencies. This Bureau should not and cannot legally
ignore violations of law uncovered in a lawful ATF investigation merely
because ATF has no authority to bring the criminal to justice for these
non-ATF violations. Where other agencies uncover evidence of ATF
violations, this information must be susceptible to collection and
preservation by that agency for subsequent use by ATF. Where an
investigation by ATF uncovers only ATF violations, information may
initially appear irrelevant and unnecessary when collected. However, a
later stage of the investigation may uncover additional facts which when
placed together with the initially collected irrelevant information,
form the basis for reasonable cause to believe that additional suspects
are involved or additional crimes have been or are being committed.
Until all facts have been gathered and evaluated at the conclusion of
the investigation it may not be possible to determine relevancy and
necessity. For these reasons, ATF seeks exemption of this system from
subsection (e)(1).
(3) The Privacy Act of 1974 provides at subsection (e)(2) that an
agency must collect information to the greatest extent practicable
directly from the subject individual. The Bureau of Alcohol, Tobacco and
Firearms believes that this system should be exempted from subsection
(e)(2) because most information gathered upon a subject under
investigation is obtained from third parties and witnesses. There is a
minimal degree of practicability in contacting a criminal subject for
purposes of seeking information as to his criminal activities. Such
contact alerts the individual that he is under investigation and affords
him opportunity to conceal his criminal activities or otherwise avoid
detection or apprehension. In certain instances, the subject of a
criminal investigation is not required to supply information to
investigators as a matter of legal right. Law violators seldom give
self-incriminatory information about their involvement in criminal
activities. In those instances, information relating to the subject's
criminal activities must be obtained from other sources. For these
reasons, ATF seeks exemption of this system from subsection (e)(2).
(4) The Privacy Act of 1974 provides at subsection (e)(3) that each
individual must be informed of the authority, principle purposes, and
routine uses and effects on the individual when requested to provide
information. The Bureau of Alcohol, Tobacco and Firearms believes that
this system should be exempted from subsection (e)(3). When information
is obtained by undercover officers, conformity to (e)(3) discloses their
identity as agents of a law enforcement authority and thereby impairs
their physical safety as well as the successful conclusion of the
investigation. When presented with a written statement complying with
(e)(3) by special agents acting in undercover capacity, the individual
may not thereafter be completely open with such agents. For these
reasons, ATF seeks exemption of this system from subsection (e)(3).
(5) The Privacy Act of 1974 provides at subsection (e)(5) that an
agency maintain all records which are used in making any determination
about an individual with such accuracy, relevance, timeliness, and
completeness as is reasonably necessary to assure fairness to the
individual in the determination. Since the law defines ``maintain'' to
include collection of information, the Bureau of Alcohol, Tobacco and
Firearms believes that this system should be exempt from subsection
(e)(5) because it would prohibit the initial collection of any data not
shown to be accurate, relevant, timely or complete at the moment of its
collection. In gathering information during the course of
[[Page 88]]
a criminal investigation it is not feasible or possible to determine
completeness, accuracy, timeliness or relevancy prior to collection of
the information. Facts are first gathered then placed into a cohesive
order which objectively proves or disproves criminal behavior on the
part of a suspect. Seemingly irrelevant, untimely and incomplete
information when gathered may acquire new significance as an
investigation progresses. The restrictions of (e)(5) could impede
special agents in the preparation of a complete investigative report.
For these reasons, ATF seeks exemption of this system from subsection
(e)(5).
(6) The Privacy Act of 1974 provides, at subsection (e)(8), that an
agency must make reasonable efforts to serve notice on an individual
when his records are made available pursuant to compulsory legal
process, when such process becomes a matter of public record. Such a
requirement would impose unnecessary and unusual administrative demands
on the Bureau of Alcohol, Tobacco and Firearms by requiring a record
system to follow up on legal process emanating from court proceedings to
which ATF is not a party. The Bureau of Alcohol, Tobacco and Firearms
believes the duty of serving notice in such a case properly rests with
the moving party who seeks disclosure by utilization of the court's
compulsory legal process. Further, in most cases where an individual's
criminal records have been disclosed pursuant to compulsory legal
process, the individual who is the subject of the records will be a
party to the proceedings and will have actual notice of the disclosure.
For these reasons, ATF seeks exemption of this system from subsection
(e)(8).
(7) The Privacy Act of 1974 provides, at subsection (g), civil
remedies for agency failure to grant access, agency failure to amend
records, agency failure to maintain accurate, relevant, timely and
complete records and agency failure to comply with provisions of the
Privacy Act which have an adverse effect on an individual. The Bureau of
Alcohol, Tobacco and Firearms believes that this system should be
exempted from subsection (g) because the civil remedies provided in this
subsection apply to provisions in the Privacy Act which have been
exempted from application to this system by virtue of this notice. Since
these provisions are not intended to apply to this system, there should
be no corresponding civil penalty for failure to comply with the
requirements of these sections due to exercise of the exemption
authority. ATF believes that application of this subsection to this
system of records would impair ATF's ability to conduct investigations
into the criminal behavior of suspects because every step in the
investigation process in which information is compiled for prosecution
purposes would be susceptible to civil action under this subsection. For
these reasons, ATF seeks exemption of this system from subsection (g).
(b) Specific exemptions under section 552a(k)(2). Under the
provisions of 5 U.S.C. 552a(k)(2), the Director, Bureau of Alcohol,
Tobacco and Firearms, hereby determines that certain provisions of the
Privacy Act of 1974 shall not apply to the Treasury--ATF--Regulatory
Enforcement Record System, the Treasury--ATF--Technical and Scientific
Services Record System, and that portion of the Treasury--ATF--Internal
Security Record System relating to ``conduct of employees'' and
``integrity of employees'' records.
(1) The Privacy Act of 1974 creates several methods by which
individuals may discover records containing information on such
individuals and consisting of investigatory material compiled for law
enforcement purposes. These methods are as follows: subsection (c)(3)
allows individuals to discover if other agencies are investigating such
individuals; subsections (d)(1), (e)(4)(H), and (f) (2), (3) and (5)
establish the ability of individuals to gain access to investigatory
material compiled on such individuals; subsections (d) (2), (3) and (4),
(e)(4)(H) and (f)(4) presuppose access and enable individuals to contest
the contents of investigatory material compiled on these individuals;
and subsections (e)(4)(G) and (f)(1) allow individuals to determine
whether or not they are under investigation. Since these subsections are
variations upon the individuals' ability to ascertain whether their
civil or criminal misdeeds have been discovered, these
[[Page 89]]
subsections have been grouped together for purposes of this notice.
(A) The Bureau of Alcohol, Tobacco and Firearms believes that
imposition of the requirements of subsection (c) (3), requiring
accounting of disclosures be made available to individuals, would impair
the ability of ATF and other investigative entities to conduct
investigations of alleged or suspected violations of civil or criminal
laws. Making the accounting of disclosures available identifies to
individuals which investigative entities are investigating the
individuals, the nature of the violations of which they are suspected,
and the purpose for the exchange of information. Supplied with this
information, the individuals concerned would be able to alter their
ongoing and future illegal activities, conceal or destroy evidentiary
materials and documents, and otherwise seriously impair the successful
completion of investigations. Further, where individuals learn the
geographic location and identity of the investigative entities which are
interested in them, such individuals are able to move the site of their
illegal activities or become secure in the knowledge that their illegal
activities have not been detected in particular geographic locations.
For these reasons, ATF seeks an exemption from the requirements of
subsection (c)(3).
(B) With respect to subsections (d) (1), (e)(4)(H), and (f) (2), (3)
and (5), the Bureau of Alcohol, Tobacco and Firearms believes that
access into investigatory material would prevent the successful
completion of ongoing investigations. Individuals who gain access to
investigatory material compiled on them discover the nature and extent
of the violations of civil or criminal laws which they are suspected or
alleged to have committed. By gaining access, such individuals also
learn the facts developed during an investigation. Knowledge of the
facts and the nature and extent of the suspected or alleged violations
enables these individuals to destroy materials or documents which would
have been used as evidence against them. In addition, knowledge of the
facts and the suspected violations gives individuals, who are committing
ongoing violations or who are about to commit violations of civil or
criminal laws, the opportunity to temporarily postpone the commission of
the violations or to effectively disguise the commission of these
violations. Access to material compiled on investigated individuals
reveals investigative techniques and the procedures followed in
conducting investigations. Disclosure of these techniques and procedures
enables individuals who intend to violate civil or criminal laws to
structure their future illegal activities in such a way that they escape
detection. Investigative material may contain the identity of
confidential sources of information. Individuals who gain access to
investigatory material compiled on them learn the identity of these
confidential sources. Even where the name of the source is not revealed,
investigated individuals may learn the identity of confidential sources
by the process of elimination or by the very nature of the information
contained in the files. Where the identity of confidential sources has
been revealed, they may be subject to various forms of reprisal. If
confidential sources of information are subjected to reprisals or the
fear of reprisals, they would become reluctant to provide information
necessary to identify or prove the guilt of individuals who violate
civil or criminal laws. Without the information that is often supplied
by confidential sources, the ability of investigative entities would be
seriously impaired. For the reasons stated in this paragraph, ATF seeks
exemption from the requirements of subsections (d)(1), (e)(4)(H), and
(f) (2), (3) and (5).
(C) With respect to subsections (d) (2), (3) and (4), (e) (4) (H),
and (f) (4), the Bureau of Alcohol, Tobacco and Firearms believes that
the imposition of these requirements, which presuppose access and
provide for amending records, would impair ATF's ability to conduct
investigations for the same reasons stated in the preceding paragraph
(b)(1)(B), and are incorporated by reference herein. Therefore, ATF
seeks exemption from the requirements of subsections (d) (2), (3) and
(4), (e)(4)(H), and (f)(4).
(D) With respect to subsections (e) (4)(G) and (f)(1), the Bureau of
Alcohol, Tobacco and Firearms believes that informing individuals that
they are of
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record would impair the ability of ATF to successfully complete the
investigations of suspected or alleged violators of civil or criminal
laws. Individuals, who are informed that they have been identified as
suspected violators of civil or criminal laws, are given the opportunity
to destroy evidence or other material needed to prove the alleged
violations. Such individuals would also be able to impair investigations
by temporarily suspending ongoing illegal activities or by restructuring
intended illegal activities. Informing individuals that they are of
record in a particular system of records enables such individuals to
learn the nature of the investigation, the character of the
investigatory material and the specific civil or criminal laws they are
suspected of violating. For these reasons, ATF seeks exemption from the
requirements of subsections (e)(4)(G) and (f)(1).
(2) Subsection (e)(1) of the Privacy Act of 1974 requires that ATF
maintain in its records only information that is relevant and necessary
to accomplish a purpose of ATF required to be accomplished by statute or
by executive order of the President. The Bureau of Alcohol, Tobacco and
Firearms believes that imposition of such requirement would seriously
impair the ability of ATF and other investigative entities to
effectively investigate suspected or alleged violations of civil or
criminal laws. Where individuals are engaged in a broad variety of
violations, if ATF were only to collect information necessary and
relevant to laws under ATF's jurisdiction, ATF would be unable to
perform one of its functions, i.e., working with other governmental
agencies which have similar jurisdictional concerns. Additionally, it is
often impossible to determine whether or not information is relevant and
necessary until the investigation is completed. When initially
collected, information may appear irrelevant or immaterial. However,
when this information is placed together with additional data gathered
at a later stage of the investigation, the initially collected
irrelevant information may form the basis for reasonable cause to
believe additional violations of law are present or additional suspects
are involved. Until all facts have been gathered and evaluated it may
not be possible to determine relevancy and materiality. For these
reasons, ATF seeks an exemption from the requirement of subsection
(e)(1).
(c) Specific exemptions under section 552a (k)(5). The Director,
Bureau of Alcohol, Tobacco and Firearms exempts under section (k) of the
Privacy Act of 1974, 5 U.S.C. 552a, that portion of the Treasury--ATF--
Internal Security Record System relating to ``security clearances for
employees'' records, and the Treasury--ATF--Personnel Record System from
sections (c)(3), (d) (1) through (4), (e)(1), (e)(4)(G) through
(e)(4)(I), and (f) of the Act. The records maintained in the exempt
systems of records are of the type described in section (k)(5) of the
Act: 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, 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 the effective
date of this section, under an implied promise that the identity of the
source would be held in confidence.
Thus to the extent that the records in this system can be disclosed
without revealing the identity of a confidential source, they are not
within the scope of this proposed exemption and are subject to all the
requirements of the Privacy Act.
The sections of the Act from which this system of records are exempt
are in general those providing for individual access to records. When
such access would cause the identity of a confidential source to be
revealed, it would impair the future ability of the Treasury Department
to compile investigatory material for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, Federal contracts, or access to classified information.
In addition, the systems are exempt from section (e)(1) which
requires that the agency maintain in its records only such information
about an individual
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as is relevant and necessary to accomplish a statutory or executively
ordered purpose. The Director finds that to fulfill the requirements of
section (e) (1) would unduly restrict the agency in its information
gathering inasmuch as it is often not until well after the investigation
that it is possible to determine the relevance and necessity of
particular information.
If any investigations within the scope of section (k)(5) become
involved with civil or criminal matters, exemptions from the Act could
also be asserted under sections (k)(2) or (j)(2).
(d) Application of exemptions to records exempt in whole or in part.
(1) When an individual requests records about himself which have been
exempted from individual access pursuant to 5 U.S.C. 552a(j) or which
have been compiled in reasonable anticipation of a civil action or
proceeding in either a court or before an administrative tribunal, the
Bureau of Alcohol, Tobacco and Firearms will neither confirm nor deny
the existence of the record but shall advise the individual only that no
record available to him pursuant to the Privacy Act of 1974 has been
identified.
(2) When there is a request for information which has been
classified by ATF pursuant to Executive Order 11652 and Treasury Order
160, ATF will review the information to determine whether it continues
to warrant classification under the criteria of sections 1 and 5 (B),
(C), (D), and (E) of the Executive Order. Information which no longer
warrants classification under these criteria shall be declassified.
After declassification, the information shall be made available to the
individual, unless an exemption is claimed. If the information continues
to warrant classification, the provisions of EO 11652 shall apply.
(3) Requests for information which have been exempted from
disclosure pursuant to 5 U.S.C. 552a(k)(2) shall be responded to in the
manner provided in paragraph (d)(1) of this section unless a review of
the information indicates that the information has been used to deny the
individual any right, privilege, or benefit for which he is eligible or
to which he would otherwise be entitled under federal law. In that
event, the individual shall be advised of the existence of the
information and shall be provided the information except to the extent
it 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 of the source would be held in
confidence.
(4) Information compiled as part of an employee background
investigation which has been exempted pursuant to 5 U.S.C. 552a(k)(5)
shall be made available to an individual upon request except to the
extent it 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 of the source would be
held in confidence.
(5) Even though the exemptions described in paragraphs (a), (b) and
(c) of this section may be fully applicable, the Bureau may, if not
precluded by law, elect under the circumstances of a particular case not
to apply the exemption; or to exempt only a part. The fact that the
exemption is not applied by the Bureau in a particular case has no
precedential significance as to the application of the exemption to such
matter in other cases. It is merely an indication that in the particular
case involved, the Bureau finds no compelling necessity for applying the
exemption to such matter. Where the Bureau has elected not to apply an
exemption, in whole or in part, Appendix E of 31 CFR part 1, subpart C,
relating to ATF's notice, access and amendment procedures shall apply to
the records requested only to the extent that the exemption was not
asserted.
Bureau of Engraving and Printing, Department of the Treasury
Notice of rules exempting certain systems from requirements of the
Privacy Act
(a) In general. The Director of the Bureau of Engraving and Printing
exempts the Office of Security Investigative Files from the provisions
of certain subsections of 5 U.S.C. 552a, the Privacy Act of 1974. The
purpose of the
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exemptions is to maintain the confidentiality of information compiled
for the purpose of criminal, non-criminal, employee suitability and
security investigations.
(b) Authority. These rules are promulgated pursuant to the authority
vested in the Secretary of the Treasury by 5 U.S.C. 552a(k) and pursuant
to the authority vested in the Director, Bureau of Engraving and
Printing.
(c) Exempted system. Bureau of Engraving and Printing, Office of
Security, Investigative Files.
(1) Provisions from which exempted. The Investigative Files
maintained by the Office of Security contain records described in 5
U.S.C. 552a(k)(2), the Privacy Act of 1974. Exemptions will be claimed
for such described records only where appropriate from the following
provisions of the Privacy Act of 1974: Subsections (c)(3); (d) (1), (2),
(3), (4); (e)(1); (e)(4) (G), (H), and (I); and (f) of 5 U.S.C. 552a.
(2) Reasons for claimed exemptions. a. 5 U.S.C. 552a(c)(3): This
provision of the Privacy Act provides for the release of the disclosure
accounting required by 5 U.S.C. 552a(c) (1) and (2) to the individual
named in the Investigative Files. The reasons why these files are
exempted from the foregoing provision are as follows:
(i) The release of accounting disclosures would put the subject of a
security investigation on notice of the existence of an investigation
and that he is the subject of that investigation;
(ii) It would provide the subject of an investigation with an
accurate accounting of the date, nature, and purpose of each disclosure
and the name and address of the person or agency to whom the disclosure
is made. Obviously, the release of such information to the subject of a
security investigation would provide him with significant information
concerning the nature of the investigation and could result in impeding
or compromising the efforts of Bureau Security personnel to detect and
report persons suspected of illegal, unlawful, or unauthorized activity;
(iii) Disclosure to the individual of the disclosure accounting
after the investigation is closed would alert the individual as to which
agencies were investigating him and would put him on notice concerning
the scope of his suspected improper activities and could aid him in
avoiding detection and apprehension.
b. 5 U.S.C. 552a(d) (1), (2), (3), (4); (e)(4) (G) and (H); and (f):
The foregoing provisions of the Privacy Act relate to an individual's
right to notification of the existence of records pertaining to him and
access to such records; the agency procedures relating to notification,
access and contest of the information continued in such records. The
reasons why the Investigative Files are exempted from the foregoing
provisions are as follows:
(i) To notify an individual at his request of the existence of
records pertaining to him in the Investigative Files would inform the
individual of the existence of an investigation and that he is the
subject of that investigation. This would enable the individual to avoid
detection and would further enable him to inform co-conspirators of the
fact that an investigation is being conducted;
(ii) To permit access to the records contained in the Investigative
Files would not only inform an individual that he is or was the subject
of a security investigation, but would also provide him with significant
information concerning the nature of the investigation which might
enable him to avoid detection or apprehension;
(iii) To grant access to an on-going or closed investigative file
could interfere with Office of Security investigative proceedings,
disclose the identity of confidential sources and reveal confidential
information supplied by such sources, and disclose investigative
techniques and procedures, or endanger the life or physical safety of
Office of Security personnel, informants, witnesses, and other persons
supplying information to investigators.
c. 5 U.S.C. 552a(e)(4)(I). This provision of the Privacy Act
requires the publication of the categories of sources of records in each
system of records. The reasons why the Investigative Files are exempted
from the foregoing provision are as follows:
(i) Revealing sources of information could disclose investigative
techniques and procedures;
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(ii) Revealing sources of information could result in retaliation
and threat of reprisal by the subject under investigation against such
sources;
(iii) Revealing sources of information could cause witnesses,
informants and others who supply information to Office of Security
investigators to refrain from giving such information because of fear of
reprisal, or fear of breach of promises of anonymity and
confidentiality;
(iv) Revealing sources of information could result in the refusal of
some sources to give full and complete information or to be candid with
investigators because of the knowledge that the identity of such sources
may be disclosed.
d. 5 U.S.C. 552a(e)(1): This provision of the Privacy Act 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. The reasons why the Investigative Files are exempted from the
foregoing provision are as follows:
(i) In a security investigation it is difficult to determine
accurately the relevancy and necessity of information during the process
of information gathering. It is only after the information is evaluated
that the relevancy and necessity of such information can be ascertained;
(ii) In a security investigation, the Office of Security often
obtains information concerning the violation of laws other than those
within the scope of its responsibilities. In the interest of effective
law enforcement, it is desirable that the Office of Security retain this
information since it can aid in establishing patterns of criminal
activity and provide valuable leads for those law enforcement agencies
that are charged with enforcing other segments of the criminal law;
(iii) In interviewing persons, or obtaining other forms of evidence
during a criminal investigation, information will be supplied to the
investigator which relates to matters which are ancillary to the main
purpose of the investigation but which may relate to matters under the
investigative jurisdiction of another agency. Such information is not
readily susceptible to segregation.
e. The foregoing exemptions are claimed for materials maintained in
the Investigative Files to the extent that such materials contain
information and reports described in 5 U.S.C. 552a(k)(2).
The Bureau of Engraving and Printing exempts under section (k) of
the Privacy Act of 1974, 5 U.S.C. 552a, the Bureau's Personnel Security
Files and Personnel Security Files and Indices from sections (c)(3),
(d), (e)(1), (e)(4)(G) through (e)(4)(I), and (f) of the Act. The
records maintained in the exempt systems of records are of the type
described in section (k)(5) of the Act:
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, but only to the extent that the disclosure of such material
would reveal the identity of a source who furnished the 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, under an implied promise that the identity of the source would
be held in confidence.
Thus to the extent that the records in this system can be disclosed
without revealing the identity of a confidential source, they are not
within the scope of this exemption and are subject to all the
requirements of the Privacy Act.
The sections of the Act from which this system of records are exempt
are in general those providing for individual access to records. When
such access would cause the identity of a confidential source to be
revealed, it would impair the future ability of the Treasury Department
to compile investigatory material for the purpose of determining
suitability, eligibility, or qualifications for Federal civilian
employment, Federal contracts, or access to classified information.
In addition, the systems are exempt from section (e)(1) which
requires that the agency maintain in its records only such information
about an individual as is relevant and necessary to accomplish a
statutory or executively ordered purpose. The Director finds that to
fulfill the requirements of section (e)(1) would unduly restrict the
agency
[[Page 94]]
in its information gathering inasmuch as it is often not until well
after the investigation that it is possible to determine the relevance
and necessity of particular information.
If any investigations within the scope of section (k)(5) become
involved with civil and criminal matters, exemptions from the Act should
also be asserted under sections (k) (2) or (j) (2).
Bureau of the Mint
Notice of rules exempting certain systems from requirements of the
Privacy Act
(a) In general. The Director of the Mint exempts investigatory files
on theft of Mint property and examination reports of coins forwarded to
the Mint by the U.S. Secret Service from certain subsections of 5 U.S.C.
552a, the Privacy Act of 1974. The purpose of the exemption is to
maintain the confidentiality of investigatory material compiled for law
enforcement purposes.
(b) Authority. These rules are promulgated pursuant to the authority
vested in the Secretary of the Treasury by 5 U.S.C. 552(a)(k)(2), and
pursuant to the authority vested in the Director of the Mint by
paragraph 1.23(c) of subpart C of part 1 of subtitle A of title 31 of
the Code of Federal Regulations.
(c) Name of systems. Examination Reports of Coins Forwarded to Mint
from U.S. Secret Service and Investigatory Files on Theft of Mint
Property.
(d) Provisions from which exempted. These two systems consist in
large part of records generated by the U.S. Secret Service in connection
with its responsibilities to enforce various criminal laws. Those
records are described in 5 U.S.C. 552a(j) and are exempted from various
provisions of the Privacy Act of 1974 by the Director of the U.S. Secret
Service. To a lesser extent, these two systems also contain records
generated and compiled by the Bureau of the Mint in assisting the U.S.
Secret Service in its law enforcement efforts. Those records are
described in 5 U.S.C. 552a(k)(2), the Privacy Act of 1974. Exemptions
will be claimed for such records only where appropriate from the
following provisions, subsections (c)(3), (d), (e)(1), (e)(4) (G), (H),
and (I) and (f) of 5 U.S.C. 552a.
(e) Reasons for claimed exemptions. Those provisions of the Privacy
Act would otherwise require the Bureau of the Mint to notify an
individual of investigatory material maintained in a record pertaining
to him, permit access to such record, permit request for its correction
(section 552a(d), (e)(4) (G), (H) and (f)); make available to him any
required accounting of disclosures made of the record (section
552a(c)(3)), publish the sources of records in the system (section
552a(e)(4) (I)); and screen records to insure that there is maintained
only such information about an individual as is relevant to accomplish a
required purpose of the Bureau (section 52a(e)(1)). Disclosure to an
individual of investigatory material pertaining to him would hamper law
enforcement by prematurely disclosing the knowledge of illegal
activities and the evidentiary bases for possible enforcement actions.
Furthermore, the disclosure of certain investigatory material compiled
for law enforcement purposes may disclose investigative techniques and
procedures, so that future law enforcement efforts would be hindered.
Access to an accounting of disclosures of such records would have a
similar detrimental effect on law enforcement. Accordingly, the Director
of the Mint finds that the public interest and public policy in
protecting the coinage and property of the United States require
exemption from the stated sections of the Act to the extent that they
are applicable to appropriate materials in these two systems.
Comptroller of the Currency
Notice of rules exempting certain systems of records from the
requirements of the Privacy Act
(a) In general. The Office of the Comptroller of the Currency
exempts the following systems of records from certain provisions of the
Privacy Act:
(1) Enforcement and Compliance Information;
(2) Federal Bureau of Investigation Report Card index;
(3) Chief Counsel's Management Information System.
The purpose of the exemption is to maintain confidentiality of data
obtained from various sources that may
[[Page 95]]
ultimately accomplish a statutory or executively-ordered purpose.
(b) Authority. The authority to issue exemptions is vested in the
Office of the Comptroller of the Currency, as a constituent unit of the
Treasury Department, by 31 CFR 1.20 and 1.23(c).
(c) Exemptions under 5 U.S.C. 552a(j)(2). (1) Under 5 U.S.C.
552a(j)(2), the head of any agency may issue rules to exempt any system
of records within the agency from certain provisions of the Privacy Act
of 1974, if the agency or component that maintains the system performs
as its principal function any activities pertaining to the enforcement
of criminal laws. Components of the Office of the Comptroller of the
Currency are involved in the investigation of fraudulent or other
illegal activities as well as other sensitive matters, in order to carry
out their bank supervisory function. Exemptions will be claimed for such
records only where appropriate.
(2) To the extent that the exemption under 5 U.S.C. 552a(j)(2) does
not apply to the above named systems of records, then the exemption
under 5 U.S.C. 552a(k)(2) relating to investigatory material compiled
for law enforcement purposes is claimed for certain records in the
systems. Exemptions will be claimed for such records only where
appropriate.
(3) The provisions of the Privacy Act of 1974 from which exemptions
are claimed under 5 U.S.C. 552a(j)(2) are as follows:
5 U.S.C. 552a(c)(3) and (4)
5 U.S.C. 552a(d)(1), (2), (3), (4)
5 U.S.C. 552a(e)(1), (2), and (3)
5 U.S.C. 552a(e)(4)(G), (H), and (I)
5 U.S.C. 552a(e)(5) and (8)
5 U.S.C. 552a(f)
5 U.S.C. 552a(g)
(d) Exemptions under 5 U.S.C. 552a(k)(2). (1) Under 5 U.S.C.
552a(k)(2), the head of any agency may issue rules to exempt any system
of records within the agency from certain provisions of the Privacy Act
of 1974 if the system is investigatory material compiled or law
enforcement purposes.
(2) To the extent that information contained in the above-named
systems has as its principal purpose the enforcement of criminal laws,
the exemption for such information under 5 U.S.C. 552a(j)(2) is claimed.
(3) Provisions of the Privacy Act of 1974 from which exemptions are
claimed under 5 U.S.C. 552a(k)(2) are as follows:
5 U.S.C. 552a(c)(3)
5 U.S.C. 552a(d)(1), (2), (3), and (4)
5 U.S.C. 552a(e)(1)
5 U.S.C. 552a(e)(4)(G), (H), and (I)
5 U.S.C. 552a(f)
(e) Reasons for exemptions under 5 U.S.C. 552a(j)(2) and (k)(2). (1)
5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request. These accountings must state the date, nature and purpose
of each disclosure of the record and the name and address of the
recipient. The application of this provision would alert subjects of an
investigation to the existence of the investigation and that such
persons are the subjects of that investigation. Since release of such
information to subjects of an investigation would provide the subjects
with significant information concerning the nature of the investigation,
it could result in the altering or destruction of documentary evidence,
improper influencing of witnesses, and other activities that could
impede or compromise the investigation.
(2) 5 U.S.C. 552a(c)(4), (d)(1), (2), (3), and (4), (e)(4)(G) and
(H), (f), and (g) relate to an individual's right to be notified of the
existence of records pertaining to such individual; requirements for
identifying an individual who requests access to records; the agency
procedures relating to access to records and the content of information
contained in such records; and the civil remedies available to the
individual in the event of adverse determinations by an agency
concerning access to or amendment of information contained in record
systems. These systems are exempt from the foregoing provisions for the
following reasons: To notify an individual at the individual's request
of the existence of records in an investigative file pertaining to such
individual or to grant access to an investigative file could: interfere
with investigative and enforcement proceedings; interfere with co-
defendants' rights to a fair trial; constitute an unwarranted
[[Page 96]]
invasion of the personal privacy of others; disclose the identity of
confidential sources and reveal confidential information supplied by
these sources; or disclose investigative techniques and procedures.
(3) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose investigative techniques
and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity
and confidentiality. This would compromise the ability to conduct
investigations, and to identify, detect, and apprehend violators.
(4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. An exemption from the foregoing is needed:
(i) Because it is not possible to detect relevance or necessity of
specific information in the early stages of a criminal or other
investigation.
(ii) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance can be established.
(iii) In any investigation the Comptroller of the Currency may
obtain information concerning violations of laws other than those within
the scope of its jurisdiction. In the interest of effective law
enforcement, the Comptroller of the Currency should retain this
information as it may aid in establishing patterns of criminal activity,
and provide leads for those law enforcement agencies charged with
enforcing other segments of criminal or civil law.
(iv) In interviewing persons, or obtaining other forms of evidence
during an investigation, information may be supplied to the investigator
which relates to matters 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.
(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 the provision would impair investigations for the
following reasons:
(i) In certain instances the subject of an investigation cannot be
required to supply information to investigators. In those instances,
information relating to a subject's illegal acts, violations of rules of
conduct, or any other misconduct, etc., must be obtained from other
sources.
(ii) Most information collected about an individual under
investigation is obtained from third parties such as witnesses and
informers. It is not feasible to rely upon the subject of the
investigation as a source for information regarding his activities.
(iii) The subject of an investigation will be alerted to the
existence of an investigation if an attempt is made to obtain
information from the subject. This would afford the individual the
opportunity to conceal any criminal activities in order to avoid
apprehension.
(iv) In any investigation it is necessary to obtain evidence from a
variety of sources other than the subject of the investigation in order
to verify the evidence necessary for successful litigation.
(6)(i) 5 U.S.C. 552a(e)(3) requires that an agency must inform the
subject of an investigation who is asked to supply information of:
(A) The authority under which the information is sought and whether
disclosure of the information is mandatory or voluntary,
(B) The purposes for which the information is intended to be used,
(C) The routine uses which may be made of the information, and
(D) The effects on the subject, if any, of not providing the
requested information.
(ii) The reasons for exempting these systems of records from the
foregoing provision are as follows:
[[Page 97]]
(A) The disclosure to the subject of the investigation as stated in
paragraph (e)(6)(i)(B) would provide the subject with substantial
information relating to the nature of the investigation and could impede
or compromise the investigation.
(B) If the subject were informed as required by this provision, it
could seriously interfere with information-gathering activities by
requiring disclosure of sources of information and, therefore, impairing
the successful conclusion of the investigation.
(C) Individuals may be contacted during preliminary information-
gathering in investigations before any individual is identified as the
subject of an investigation. Informing the individual of the matters
required by this provision would hinder or adversely affect any present
or subsequent investigations.
(7) 5 U.S.C. 552a(e)(5) requires that records be maintained with
such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in making any
determination about an individual. Since the law 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 of its collection. In
gathering information during the course of an investigation it is not
possible to determine this prior to collection of the information. Facts
are first gathered and then placed in a logical order which objectively
proves or disproves suspected behavior on the part of the suspect.
Material which may seem unrelated, irrelevant, incomplete, untimely,
etc., may take on added meaning as an investigation progresses. The
restrictions in this provision could interfere with the preparation of a
complete investigative report.
(8) 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. The notice
requirement of this provision could prematurely reveal an ongoing
investigation to the subject of the investigation.
(f) Documents exempted. Exemption will be claimed for certain
records only where appropriate under the above provisions.
OFFICE OF THRIFT SUPERVISION
NOTICE OF EXEMPT SYSTEMS
In accordance with 5 U.S.C. 552a (j) and (k), general notice is
hereby given of rulemaking pursuant to the Privacy Act of 1974 by the
Director, Office of Thrift Supervision, under authority delegated to him
by the Secretary of the Treasury. The Director, Office of Thrift
Supervision, exempts the systems of records identified in the paragraphs
below from certain provisions of the Privacy Act of 1974 as set forth in
such paragraphs.
a. General exemptions under 5 U.S.C. 552a(j)(2). Pursuant to the
provisions of 5 U.S.C. 552a(j)(2), the Director, Office of Thrift
Supervision, hereby exempts certain systems of records, maintained by
the Office of Thrift Supervision, from the provisions of 5 U.S.C.
552a(c) (3) and (4), (d) (1), (2), (3) and (4), (e) (1), (2), (3),
(4)(G), (H) and (I), (5) and (8), (f) and (g).
1. Exempt Systems. The following systems of records, which contain
information of the type described in 5 U.S.C. 552a(j)(2), shall be
exempt from the provisions of 5 U.S.C. 552a listed in paragraph a. above
except as otherwise indicated below and in the general notice of the
existence and character of systems of records which appears elsewhere in
the Federal Register
:.001 -- Confidential Individual Information System
.004 -- Criminal Referral Database
2. Reasons for exemptions. (a) 5 U.S.C. 552a (e)(4)(G) and (f)(1)
enable individuals to be notified whether a system of records contains
records pertaining to them. The OTS believes that application of these
provisions to the above-listed systems of records would give individuals
an opportunity to learn whether they are the subject of an
administrative investigation; this would compromise the ability of the
OTS to complete investigations and to detect and apprehend violators of
applicable laws in that individuals would thus be
[[Page 98]]
able (1) to take steps to avoid detection, (2) to inform co-conspirators
of the fact that an investigation is being conducted, (3) to learn the
nature of the investigation to which they are being subjected, (4) to
learn the type of surveillance being utilized, (5) to learn whether they
are the subject of investigation or identified law violators, (6) to
continue or resume their illegal conduct without fear of detection upon
learning that they are not in a particular system of records, and (7) to
destroy evidence needed to prove a violation.
(b) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable
individuals to gain access to records pertaining to them. The OTS
believes that application of these provisions to the above-listed
systems of records would compromise its ability to complete or continue
administrative investigations and to detect and apprehend violators of
applicable laws. Permitting access to records contained in the above-
listed systems of records would provide individuals with significant
information concerning the nature of the investigation, and this could
enable them to avoid detection or apprehension in the following ways:
(1) by discovering the collection of facts which would form the basis of
an enforcement action, and (2) by enabling them to destroy evidence of
wrongful conduct which would form the basis of an enforcement action.
Granting access to on-going or closed investigative files would also
reveal investigative techniques and procedures, the knowledge of which
could enable individuals planning illegal activity to structure their
future operations in such a way as to avoid detection or apprehension,
thereby neutralizing established investigative techniques and
procedures. Further, granting access to investigative files and records
could disclose the identities of confidential sources and other
informers and the nature of the information which they supplied, thereby
exposing them to possible reprisals for having provided information
related to the activities of those individuals who are subjects of the
investigative files and records; confidential sources and other
informers might refuse to provide investigators with valuable
information if they could not be secure in the knowledge that their
identities would not be revealed through disclosure of either their
names or the nature of the information they supplied, and this would
seriously impair the ability of the OTS to carry out its mandate to
enforce the applicable laws. Additionally, providing access to records
contained in the above-listed systems of records could reveal the
identities of individuals who compiled information regarding illegal
activities, thereby exposing them to possible reprisals.
(c) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which
are dependent upon access having been granted to records pursuant to the
provisions cited in paragraph (b) above, enable individuals to contest
(seek amendment to) the content of records contained in a system of
records and require an agency to note an amended record and to provide a
copy of an individual's statement (of disagreement with the agency's
refusal to amend a record) to persons or other agencies to whom the
record has been disclosed. The OTS believes that the reasons set forth
in paragraph (b) above are equally applicable to this subparagraph and,
accordingly, those reasons are hereby incorporated herein by reference.
(d) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request; such accountings must state the date, nature and purpose
of each disclosure of a record and the name and address of the
recipient. The OTS believes that application of this provision to the
above-listed systems of records would impair the ability of other law
enforcement agencies to make effective use of information provided by
the OTS in connection with the investigation, detection and apprehension
of violators of the laws enforced by those other law enforcement
agencies. Making accountings of disclosure available to subjects would
alert those individuals to the fact that another agency is conducting an
investigation into their activities, and this could reveal the nature
and purpose of that investigation, and the dates on which that
investigation was active. Subjects possessing such knowledge would
thereby be able
[[Page 99]]
to take appropriate measures to avoid detection or other apprehension by
altering their operations, or by destroying or concealing evidence which
would form the basis of an enforcement action. In addition, providing
subjects with accountings of disclosure would inform those individuals
of general information, and alert them that the OTS has information
regarding their activities; this, in turn, would afford those
individuals a better opportunity to take appropriate steps to avoid
detection or apprehension.
(e) 5 U.S.C. 552a(c)(4) requires that an agency inform any person or
other agency about any correction or notation of dispute made by the
agency in accordance with 5 U.S.C. 552(d) of any record that has been
disclosed to the person or agency if an accounting of the record was
made. Since this provision is dependent on an individual's having been
provided an opportunity to contest (seek amendment to) records
pertaining to him, and since the above-listed systems of records are
proposed to be exempted from those provisions of 5 U.S.C. 552a relating
to amendments of records as indicated in paragraph (c) above, the OTS
believes that this provision should not be applicable to the above-
listed systems of records.
(f) 5 U.S.C. 552a(e)(4)(I) requires that an agency publish a public
notice listing the categories of sources for information contained in a
system of records. The OTS believes that application of this provision
to the above-listed systems of records could compromise its ability to
conduct investigations and to identify, detect and apprehend violators
of the applicable laws for the reasons that revealing sources for
information could 1) disclose investigative techniques and procedures,
2) result in possible reprisal directed to informers by the subject
under investigation, and 3) result in the refusal of informers to give
information or to be candid with investigators because of the knowledge
that their identities as sources might be disclosed.
(g) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term ``maintain'' as
defined in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.''
At the time that information is collected by the OTS, there is often
insufficient time to determine whether the information is relevant and
necessary to accomplish a purpose of the OTS; in many cases information
collected may not be immediately susceptible to a determination whether
the information is relevant and necessary, particularly in the early
stages of an investigation, and in many cases information which
initially appears to be irrelevant and unnecessary may, upon further
evaluation or upon continuation of the investigation, prove to have
particular relevance to an enforcement program of OTS. Further, not all
violations of law discovered during an OTS administrative investigation
fall within the investigative jurisdiction of OTS; in order to promote
effective law enforcement, OTS is often required to disseminate
information pertaining to such violations to other law enforcement
agencies which have jurisdiction over the offense to which the
information relates. The OTS therefore believes that it is appropriate
to exempt the above-listed systems of records from the provisions of 5
U.S.C. 552a(e)(1).
(h) 5 U.S.C. 552a(e)(2) requires that an agency 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 OTS believes that application of this provision to the above-listed
systems of records would impair the ability of OTS to conduct
investigations and to identify, detect and apprehend violators of
applicable laws for the following reasons: (1) most information
collected about an individual under investigation is obtained from third
parties such as witnesses and informers, and it is usually not feasible
to rely upon the subject of the investigation as a source for
information regarding his activities, (2) an attempt to obtain
information from the subject regarding an investigation will often alert
the subject to the existence of such an investigation, thereby
[[Page 100]]
affording him an opportunity to conceal his activities so as to avoid
apprehension, (3) in certain instances individuals are not required to
supply information to investigators as a matter of legal duty, and (4)
during investigations it is often a matter of sound investigative
procedures to obtain information from a variety of sources in order to
verify information already obtained.
(i) 5 U.S.C. 552a(e)(3) requires that an agency inform each
individual whom it asks to supply information, on the form which it uses
to collect the information or on a separate form that can be retained by
the individual, of the authority which authorizes the solicitation of
the information and whether disclosure of such information is mandatory
or voluntary; the principal purposes for which the information is
intended to be used; the routine uses which may be made of the
information; and the effects on the individual of not providing all or
part of the requested information. The OTS believes that the above-
listed systems of records should be exempted from this provision in
order to avoid adverse effects on its ability to identify, detect and
apprehend violators of applicable laws. In many cases, information is
obtained from confidential sources and other individuals under
circumstances where it is necessary that the true purpose of their
actions be kept secret so as not to alert the subject of the
investigation or his associates that an investigation is in progress. In
many cases, individuals for personal reasons would feel inhibited in
talking to a person representing a law enforcement agency but would be
willing to talk to a confidential source or a person who they believed
was not involved in enforcement activity. In addition, providing
information in this system with written evidence of who was the source,
as required by this provision, could increase the likelihood that the
source of information would be the subject of retaliatory action by the
subject of the investigation. Further, application of this provision
could result in an unwarranted invasion of the personal privacy of the
subject of the investigation, particularly where further investigation
would result in a finding that he was not involved in unlawful activity.
(j) 5 U.S.C. 552a(e)(5) requires that an agency maintain all records
used by the agency in making any determination about any individual with
such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the determination.
Since 5 U.S.C. 552a(a)(3) defines ``maintain'' to include ``collect''
and ``disseminate,'' application of this provision to the above-listed
systems of records would hinder the initial collection of any
information which could not, at the moment of collection, be determined
to be accurate, relevant, timely and complete. Similarly, application of
this provision would seriously restrict the necessary flow of
information from the OTS to other law enforcement agencies where an OTS
investigation revealed information pertaining to a violation of law
which was under the investigative jurisdiction of another agency. In
collecting information during the course of an administrative
investigation, it is not possible or feasible to determine accuracy,
relevance, timeliness or completeness prior to collection of the
information; in disseminating information to other law enforcement
agencies it is often not possible to determine accuracy, relevance,
timeliness or completeness prior to dissemination because the
disseminating agency may not have the expertise with which to make such
determinations. Further, information which may initially appear
inaccurate, irrelevant, untimely or incomplete may, when gathered,
grouped, and evaluated with other available information, become more
pertinent as an investigation progresses. The OTS therefore believes
that it is appropriate to exempt the above-listed systems of records
from the provisions of 5 U.S.C. 552a(e)(5).
(k) 5 U.S.C. 552a(e)(8) requires that an agency make reasonable
efforts to serve notice on an individual when any record on the
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record. The OTS
believes that the above-listed systems of records should be exempt from
[[Page 101]]
this provision in order to avoid revealing investigative techniques and
procedures outlined in those records and in order to prevent revelation
of the existence of an on-going investigation where there is a need to
keep the existence of the investigation secret.
(l) 5 U.S.C. 552a(g) provides civil remedies to an individual for an
agency refusal to amend a record or to make a review of a request for
amendment, for an agency refusal to grant access to a record, for an
agency failure to maintain accurate, relevant, timely and complete
records which are used to make a determination which is adverse to the
individual, and for an agency failure to comply with any other provision
of 5 U.S.C. 552a in such a way as to have an adverse effect on an
individual. The OTS believes that the above-listed systems of records
should be exempted from this provision to the extent that the civil
remedies provided therein may be related to provisions of 5 U.S.C. 552a
from which the above-listed systems of records are proposed to be
exempt. Since the provisions of 5 U.S.C. 552a enumerated in paragraphs
(a) through (k) above are proposed to be inapplicable to the above-
listed systems of records for the reasons stated therein, there should
be no corresponding civil remedies for failure to comply with the
requirements of those provisions to which the exemption is proposed to
apply. Further, the OTS believes that the application of this provision
to the above-listed systems of records would adversely affect its
ability to conduct investigations by exposing to civil court actions
every stage of the investigative process in which information is
compiled or used in order to identify, detect, apprehend and otherwise
investigate persons suspected or known to be engaged in conduct in
violation of applicable laws.
b. Specific exemptions under 5 U.S.C. 552a(k)(2). Pursuant to the
provisions of 5 U.S.C. 552a(k)(2), the OTS hereby exempts certain
systems of records, maintained by the OTS from the provisions of 5
U.S.C. 552a(c)(3), (d)(1), (2), (3) and (4), (e)(1) and (4)(G), (H) and
(I) and (f).
1. Exempt Systems. The following systems of records, which contain
information of the type described in 5 U.S.C. 552a(k)(2), shall be
exempt from the provisions of 5 U.S.C. 552a listed in paragraph b. above
except as otherwise indicated below and in the general notice of the
existence and character of systems of records which appears elsewhere in
the Federal Register:
.001 -- Confidential Individual Information System
.004 -- Criminal Referral Database
2. Reasons for exemptions. (a) 5 U.S.C. 552a (e)(4)(G) and (f)(1)
enable individuals to be notified whether a system of records contains
records pertaining to them. The OTS believes that application of these
provisions to the above-listed systems of records would impair the
ability of the OTS to successfully complete investigations and inquiries
of suspected violators of laws and regulations under its jurisdiction.
In many cases investigations and inquiries into violations of laws and
regulations involve complex and continuing patterns of behavior.
Individuals, if informed that they have been identified as the subject
of an investigation, would have an opportunity to take measures to
prevent detection of illegal action so as to avoid prosecution or the
imposition of civil sanctions. They would also be able to learn the
nature and location of the investigation and the type of inquiry being
made, and they would be able to transmit this knowledge to co-
conspirators. Finally, subjects might be given the opportunity to
destroy evidence needed to prove the violation under investigation or
inquiry.
(b) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable
individuals to gain access to records pertaining to them. The OTS
believes that application of these provisions to the above-listed
systems of records would impair its ability to complete or continue
investigations and inquiries and to detect and apprehend violators of
the applicable laws. Permitting access to records contained in the
above-listed systems of records would provide subjects with significant
information concerning the nature of the investigation or inquiry.
Knowledge of the facts developed during an investigation or inquiry
would enable violators of laws and regulations to learn the extent to
which the investigation or inquiry has progressed, and this could
provide
[[Page 102]]
them with an opportunity to destroy evidence that would form the basis
for the imposition of civil sanctions. In addition, knowledge gained
through access to investigatory material could alert a subject to the
need to temporarily postpone commission of the violation or to change
the intended point where the violation is to be committed so as to avoid
detection or apprehension. Further, access to investigatory material
would disclose investigative techniques and procedures which, if known,
could enable individuals to structure their future operations in such a
way as to avoid detection or apprehension, thereby neutralizing
investigators' established and effective investigative tools and
procedures. In addition, investigatory material may contain the identity
of confidential sources who would not want their identity to be
disclosed for reasons of personal privacy or for fear of reprisal at the
hands of the individual about whom they supplied information. In some
cases mere disclosure of the information provided by a source would
reveal the identity of the source either through the process of
elimination or by virtue of the nature of the information supplied. If
sources could not be assured that their identities (as sources for
information) would remain confidential, they would be very reluctant in
the future to provide information pertaining to violations of laws and
regulations, and this would seriously compromise the ability of the OTS
to carry out its mission. Further, application of 5 U.S.C. 552a (d)(1),
(e)(4)(H) and (f)(2), (3) and (5) to the above-listed systems of records
would make available attorney's work product and other documents which
contain evaluations, recommendations, and discussions of ongoing legal
proceedings; the availability of such documents could have a chilling
effect on the free flow of information and ideas within the OTS which is
vital to the agency's predecisional deliberative process, could
seriously prejudice the agency's or the Government's position in
litigation, and could result in the disclosure of investigatory material
which should not be disclosed for the reasons stated above. It is the
belief of the OTS that due process will assure that individuals have a
reasonable opportunity to learn of the existence of, and to challenge,
investigatory records and related materials which are to be used in
legal proceedings.
(c) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which
are dependent upon access having been granted to records pursuant to the
provisions cited in subparagraph (b) above, enable individuals to
contest (seek amendment to) the content of records contained in a system
of records and require an agency to note an amended record and to
provide a copy of an individual's statement (of disagreement with the
agency's refusal to amend a record) to persons or other agencies to whom
the record has been disclosed. The OTS believes that the reasons set
forth in subparagraph (b) above are equally applicable to this
subparagraph, and, accordingly, those reasons are hereby incorporated
herein by reference.
(d) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request; such accountings must state the date, nature and purpose
of each disclosure of a record and the name and address of the
recipient. The OTS believes that application of this provision to the
above-listed systems of records would impair the ability of the OTS and
other law enforcement agencies to conduct investigations and inquiries
into potential violations under their respective jurisdictions. Making
accountings available to subjects would alert those individuals to the
fact that the OTS or another law enforcement authority is conducting an
investigation or inquiry into their activities, and such accountings
could reveal the geographic location of the investigation or inquiry,
the nature and purpose of the investigation or inquiry and the nature of
the information disclosed, and dates on which that investigation or
inquiry was active. Subjects possessing such knowledge would thereby be
able to take appropriate measures to avoid detection or apprehension by
altering their operations, transferring their activities to other
locations or destroying or concealing evidence
[[Page 103]]
which would form the basis for prosecution or the imposition of civil
sanctions.
(e) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required to be
accomplished by statute or executive order. The term ``maintain'' as
defined in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.''
At the time that information is collected by the OTS there is often
insufficient time to determine whether the information is relevant and
necessary to accomplish a purpose of the OTS; in many cases information
collected may not be immediately susceptible to a determination of
whether the information is relevant and necessary, particularly in the
early stages of investigation or inquiry; and in many cases information
which initially appears to be irrelevant and unnecessary may, upon
further evaluation or upon continuation of the investigation or inquiry,
prove to have particular relevance to an enforcement program of the OTS.
Further, not all violations of law uncovered during an OTS investigation
or inquiry fall within the jurisdiction of the OTS; in order to promote
effective law enforcement it often becomes necessary and desirable to
disseminate information pertaining to such violations to other law
enforcement agencies which have jurisdiction over the offense to which
the information relates. The OTS therefore believes that it is
appropriate to exempt the above-listed systems of records from
provisions of 5 U.S.C. 552a(e)(1).
[40 FR 45692, Oct 2, 1975, as amended at 44 FR 7141, Feb. 6, 1979; 44 FR
42189, July 19, 1979; 45 FR 13455, Feb. 29, 1980; 48 FR 21945, May 16,
1983; 48 FR 48460, Oct. 19, 1983; 52 FR 11990, Apr. 14, 1987; 56 FR
12447, Mar. 26, 1991; 59 FR 47538, Sept. 16, 1994; 61 FR 387, Jan. 5,
1996; 62 FR 19505, Apr. 22, 1997; 62 FR 26939, May 16, 1997; 62 FR
58908, Oct. 31, 1997; 62 FR 60782, Nov. 13, 1997]
Appendices to subpart C
Appendix A--Departmental Offices
1. In general. This appendix applies to the Departmental Offices as
defined in 31 CFR part 1, subpart C, Sec. 1.20. It sets forth specific
notification and access procedures with respect to particular systems of
records, identifies the officers designated to make the initial
determinations with respect to notification and access to records, the
officers designated to make the initial and appellate determinations
with respect to requests for amendment of records, the officers
designated to grant extensions of time on appeal, the officers with whom
``Statement of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a(e)(4) and (11) and published
annually by the Office of the Federal Register in ``Privacy Act
Issuances''.
2. Requests for notification and access to records and accountings
of disclosures. Initial determinations under 31 CFR 1.26, whether to
grant requests for notification and access to records and accountings of
disclosures for the Departmental Offices, will be made by the head of
the organizational unit having immediate custody of the records
requested, or the delegate of such official. This information is
contained in the appropriate system notice in the ``Privacy Act
Issuances'', published annually by the Office of the Federal Register.
Requests for information and specific guidance on where to send requests
for records should be addressed to:
Privacy Act Request, DO, Department of the Treasury, 1500
Pennsylvania Avenue, NW., Washington, DC 20220.
Requests may be delivered personally to the Main Treasury Building,
Room 5030, 1500 Pennsylvania Avenue NW., Washington, DC.
3. Requests for amendments of records. Initial determinations under
31 CFR 1.27(a) through (d) with respect to requests to amend records for
records maintained by the Departmental Offices will be made by the head
of the organization or unit having immediate custody of the records or
the delegate of such official. Requests for amendment of records should
be addressed as indicated in the appropriate system notice in ``Privacy
Act Issuances'' published by the Office of the Federal Register.
Requests for information and specific guidance on where to send these
requests should be addressed to: Privacy Act Amendment Request, DO,
Department of the Treasury, 1500 Pennsylvania Avenue, NW., Washington,
DC 20220.
4. Administrative appeal of initial determination refusing to amend
record. Appellate determinations under 31 CFR 1.27(e) with respect to
records of the Departmental Offices, including extensions of time on
appeal, will be made by the Secretary, Deputy Secretary, Under
Secretary, General Counsel, or Assistant Secretary having jurisdiction
over the organizational unit which has immediate custody of the records,
or the delegate of
[[Page 104]]
such official, as limited by 5 U.S.C. 552a(d) (2) and (3). Appeals made
by mail should be addressed as indicated in the letter of initial
decision or to:
Privacy Act Amendment Request, DO Department of the Treasury, 1500
Pennsylvania Avenue, NW., Washington, DC 20220. Appeals may be delivered
personally to the Library, Room 5030, Main Treasury Building, 1500
Pennsylvania Avenue, NW., Washington, DC.
5. Statements of disagreement. ``Statements of Disagreement'' as
described in 31 CFR 1.27(e)(4) shall be filed with the official signing
the notification of refusal to amend at the address indicated in the
letter of notification within 35 days of the date of notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
General Counsel of the Department of the Treasury or the delegate of
such official and shall be delivered to the following location:
General Counsel, Department of the Treasury, Room 3000, Main
Treasury Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220.
7. Annual notice of systems of records. The annual notice of systems
of records required to be published by the Office of the Federal
Register in the publication entitled ``Privacy Act Issuances'', as
specified in 5 U.S.C. 552a (f). Any specific requirements for access,
including identification requirements, in addition to the requirements
set forth in 31 CFR 1.26 and 1.27 and 8 of this appendix, and locations
for access are indicated in the notice for the pertinent system.
8. Verification of identity. An individual seeking notification or
access to records, or seeking to amend a record, must satisfy one of the
following identification requirements before action will be taken by the
Departmental Offices on any such request:
(i) An individual seeking notification or access to records in
person, or seeking to amend a record in person, may establish identity
by the presentation of a single official document bearing a photograph
(such as a passport or identification badge) or by the presentation of
two items of identification which do not bear a photograph but do bear
both a name and signature (such as a driver's license or credit card).
(ii) An individual seeking notification or access to records by
mail, or seeking to amend a record by mail, may establish identity by a
signature, address, and one other identifier such as a photocopy of a
driver's license or other official document bearing the individual's
signature.
(iii) Notwithstanding subdivisions (i) and (ii) of this
subparagraph, an individual seeking notification or access to records by
mail or in person, or seeking to amend a record by mail or in person,
who so desires, may establish identity by providing a notarized
statement, swearing or affirming to such individual's identity and to
the fact that the individual understands the penalties provided in 5
U.S.C. 552a(i)(3) for requesting or obtaining access to records under
false pretenses.
Notwithstanding subdivision (i), (ii), or (iii) of this subparagraph, a
designated official may require additional proof of an individual's
identity before action will be taken on any request, if such official
determines that it is necessary to protect against unauthorized
disclosure of information in a particular case. In addition, a parent of
any minor or a legal guardian of any individual will be required to
provide adequate proof of legal relationship before such person may act
on behalf of such minor or such individual.
Appendix B--Internal Revenue Service
1. Purpose. The purpose of this section is to set forth the
procedures that have been established by the Internal Revenue Service
for individuals to exercise their rights under the Privacy Act of 1974
(88 Stat. 1896) with respect to systems of records maintained by the
Internal Revenue Service, including the Office of the Chief Counsel. The
procedures contained in this section are to be promulgated under the
authority of 5 U.S.C. 552a(f). The procedures contained in this section
relate to the following:
(a) The procedures whereby an individual can be notified in response
to a request if a system of records named by the individual contains a
record pertaining to such individual (5 U.S.C. 552a(f)(1)).
(b) The procedures governing reasonable times, places, and
requirements for identifying an individual who requests a record of
information pertaining to such individual before the Internal Revenue
Service will make the record or information available to the individual
(5 U.S.C. 552a (f)(2)).
(c) The procedures for the disclosure to an individual upon a
request of a record of information pertaining to such individual,
including special procedures for the disclosure to an individual of
medical records, including psychological records. (5 U.S.C. 552a
(f)(3)).
(d) The procedures for reviewing a request from an individual
concerning the amendment of any record or information pertaining to the
individual, for making a determination on the request, for an appeal
within the Internal Revenue Service of an initial adverse agency
determination, and for whatever additional means may be necessary for
individuals to be able to exercise fully their right under 5 U.S.C. 552a
(5 U.S.C. 552a (f)(4)).
Any individual seeking to determine whether a system of records
maintained by any office of the Internal Revenue Service contains a
record or information pertaining to such individual, or seeking access
to, or amendment of, such a record, must comply
[[Page 105]]
fully with the applicable procedure contained in paragraph (3) or (4) of
this section before the Internal Revenue Service will act on the
request. Neither the notification and access (or accounting of
disclosures) procedures under paragraph (3) of this section nor the
amendment procedures under paragraph (4) of this section are applicable
to (i) systems of records exempted pursuant to 5 U.S.C. 552a (j) and
(k), (ii) information compiled in reasonable anticipation of a civil
action or proceeding (see 5 U.S.C. 552a (d)(5)), or (iii) information
pertaining to an individual which is contained in, and inseparable from,
another individual's record.
2. Access to and amendment of tax records. The provisions of the
Privacy Act of 1974 may not be used by an individual to amend or correct
any tax record. The determination of liability for taxes imposed by the
Internal Revenue Service Code, the collection of such taxes, and the
payment (including credits or refunds of overpayments) of such taxes are
governed by the provisions of the Internal Revenue Service Code and by
the procedural rules of the Internal Revenue Service. These provisions
set forth the established procedures governing the determination of
liability for tax, the collection of such taxes, and the payment
(including credits or refunds of overpayments) of such taxes. In
addition, these provisions set forth the procedures (including
procedures for judicial review) for resolving disputes between taxpayers
and the Internal Revenue Service involving the amount of tax owed, or
the payment or collection of such tax. These procedures are the
exclusive means available to an individual to contest the amount of any
liability for tax or the payment or collection thereof. See, for
example, 26 CFR 601.103 for summary of general tax procedures.
Individuals are advised that Internal Revenue Service procedures permit
the examination of tax records during the course of an investigation,
audit, or collection activity. Accordingly, individuals should contact
the Internal Revenue Service employee conducting an audit or effecting
the collection of tax liabilities to gain access to such records, rather
than seeking access under the provisions of the Privacy Act. Where, on
the other hand, an individual desires information or records not in
connection with an investigation, audit, or collection activity, the
individual may follow these procedures.
3. Procedures for access to records--(a) In general. This paragraph
sets forth the procedure whereby an individual can be notified in
response to a request if a system of records named by the individual
which is maintained by the Internal Revenue Service contains a record
pertaining to such individual. In addition, this paragraph sets forth
the procedure for the disclosure to an individual upon a request of a
record or information pertaining to such individual, including the
procedures for verifying the identity of the individual before the
Internal Revenue Service will make a record available, and the procedure
for requesting an accounting of disclosures of such records. An
individual seeking to determine whether a particular system of records
contains a record or records pertaining to such individual and seeking
access to such records (or seeking an accounting of disclosures of such
records) shall make a request for notification and access (or a request
for an accounting of disclosures) in accordance with the rules provided
in paragraph 3(b) of this section.
(b) Form of request for notification and access or request for an
accounting of disclosures. (i) A request for notification and access (or
request for an accounting of disclosures) shall be made in writing and
shall be signed by the person making the request.
(ii) Such request shall be clearly marked, ``Request for
notification and access,'' or ``Request for accounting of disclosures.''
(iii) Such a request shall contain a statement that it is being made
under the provisions of the Privacy Act of 1974.
(iv) Such request shall contain the name and address of the
individual making the request. In addition, if a particular system
employs an individual's social security number as an essential means of
accessing the system, the request must include the individual's social
security number. In the case of a record maintained in the name of two
or more individuals (e.g., husband and wife), the request shall contain
the names, addresses, and social security numbers (if necessary) of both
individuals.
(v) Such request shall specify the name and location of the
particular system of records (as set forth in the Notice of Systems) for
which the individual is seeking notification and access (or an
accounting of disclosures), and the title and business address of the
official designated in the access section for the particular system (as
set forth in the Notice of Systems). In the case of two or more systems
of records which are under the control of the same designated official
at the same systems location, a single request may be made for such
systems. In the case of two or more systems of records which are not in
the control of the same designated official at the same systems
location, a separate request must be made for each such system.
(vi) If an individual wishes to limit a request for notification and
access to a particular record or records, the request should identify
the particular record. In the absence of a statement to the contrary, a
request for notification and access for a particular system of records
shall be considered to be limited to records which are currently
maintained by the designated official at the systems location specified
in the request.
[[Page 106]]
(vii) If such request is seeking notification and access to material
maintained in a system of records which is exempt from disclosure and
access under 5 U.S.C. 552a (k)(2), the individual making the request
must establish that such individual has been denied a right, privilege,
or benefit that such individual would otherwise be entitled to under
Federal law as a result of the maintenance of such material.
(viii) Such request shall state whether the individual wishes to
inspect the record in person, or desires to have a copy made and
furnished without first inspecting it. If the individual desires to have
a copy made, the request must include an agreement to pay the fee for
duplication ultimately determined to be due. If the individual does not
wish to inspect a record, but merely wishes to be notified whether a
particular system or records contains a record pertaining to such
individual, the request should so state.
(c) Time and place for making a request. A request for notification
and access to records under the Privacy Act (or a request for accounting
of disclosures) shall be addressed to or delivered in person to the
office of the official designated in the access section for the
particular system of records for which the individual is seeking
notification and access (or an accounting of disclosures). The title and
office address of such official is set forth for each system of records
in the Notice of Systems of Records. A request delivered to an office in
person must be delivered during the regular office hours of that office.
(d) Sample request for notification and access to records. The
following are sample requests for notification and access to records
which will satisfy the requirements of this paragraph:
Request for Notification and Access to Records by Mail
I, John Doe, of 100 Main Street, Boston, MA 02108 (soc. sec. num.
000-00-0000) request under the Privacy Act of 1974 that the following
system of records be examined and that I be furnished with a copy of any
record (or a specified record) contained therein pertaining to me. I
agree that I will pay the fees ultimately determined to be due for
duplication of such record. I have enclosed the necessary information.
System Name:
System Location:
Designated Official:
________________________________________________________________________
John Doe
Request for Notification and Access to Records in Person
I, John Doe, of 100 Main Street, Boston, MA 02108 (soc. sec. num.
000-00-0000) request under the provisions of the Privacy Act of 1974,
that the following system of records be examined and that I be granted
access in person to inspect any record (or a specified record) contained
therein pertaining to me. I have enclosed the necessary identification.
System Name:
System Location:
Designated Official:
________________________________________________________________________
John Doe
(e) Processing a request for notification and access to records or a
request for an accounting of disclosures. (i) If a request for
notification and access (or request for an accounting of disclosures)
omits any information which is essential to processing the request, the
request will not be acted upon and the individual making the request
will be promptly advised of the additional information which must be
submitted before the request can be processed.
(ii) Within 30 days (not including Saturdays, Sundays, and legal
public holidays) after the receipt of a request for notification and
access (or a request for an accounting of disclosures), to a particular
system of records by the designated official for such system, a
determination will be made as to whether the particular system of
records is exempt from the notification and access provisions of the
Privacy Act, and if such system is not exempt, whether it does or does
not contain a record pertaining to the individual making the request. If
a determination cannot be made within 30 days, the individual will be
notified of the delay, the reasons therefor, and the approximate time
required to make a determination. If it is determined by the designated
official that the particular system of records is exempt from the
notification and access provisions of the Privacy Act, the individual
making the request will be notified of the provisions of the Privacy Act
under which the exemption is claimed. On the other hand, if it is
determined by the designated official that the particular system of
records is not exempted from the notification and access provisions of
the Privacy Act and that such system contains a record pertaining to the
individual making the request, the individual will be notified of the
time and place where inspection may be made. If an individual has not
requested that access be granted to inspect the record in person, but
merely requests that a copy of the record be furnished, or if it is
determined by the designated official that the granting of access to
inspect a record in person is not feasible in a particular case, then
the designated official will furnish a copy of the record with the
notification, or if a copy cannot be furnished at such time, a statement
indicating the approximate time such copy will be furnished. If the
request is for an accounting of disclosures
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from a system of records which is not exempt from the accounting of
disclosure provisions of the Privacy Act, the individual will be
furnished with an accounting of such disclosures.
(f) Granting of access. Normally, an individual will be granted
access to inspect a record in person within 30 days (excluding
Saturdays, Sundays, and legal public holidays) after the receipt for a
request for notification and access by the designated official. If
access cannot be granted within 30 days, the notification will state the
reasons for the delay and the approximate time such access will be
granted. An individual wishing to inspect a record may be accompanied by
another person of his choosing. Both the individual seeking access and
the individual accompanying him may be required to sign a form supplied
by the IRS indicating that the Service is authorized to disclose or
discuss the contents of the record in the presence of both individuals.
See 26 CFR 601.502 for requirements to be met by taxpayer's
representatives in order to discuss the contents of any tax records.
(g) Medical records. When access is requested to medical records
(including psychological records), the designated official may determine
that release of such records will be made only to a physician designated
by the individual to have access to such records.
(h) Verification of identity. An individual seeking notification or
access to records, or seeking to amend a record, must satisfy one of the
following identification requirements before action will be taken by the
IRS on any such request:
(i) An individual seeking notification or access to records in
person, or seeking to amend a record in person, may establish identity
by the presentation of a single document bearing a photograph (such as a
passport or identification badge) or by the presentation of two items of
identification which do not bear a photograph but do bear both a name
and signature (such as a driver's license or credit card).
(ii) An individual seeking notification or access to records by
mail, or seeking to amend a record by mail, may establish identity by a
signature, address, and one other identifier such as a photocopy of a
driver's license or other document bearing the individual's signature.
(iii) Notwithstanding subdivisions (i) and (ii) of this
subparagraph, an individual seeking notification or access to records by
mail or in person, or seeking to amend a record by mail or in person,
who so desires, may establish identity by providing a notarized
statement, swearing or affirming to such individual's identity and to
the fact that the individual understands the penalties provided in 5
U.S.C. 552a(i)(3) for requesting or obtaining access to records under
false pretenses.
(iv) Notwithstanding subdivisions (i), (ii), or (iii) of this
subparagraph, a designated official may require additional proof of an
individual's identity before action will be taken on any request if such
official determines that it is necessary to protect unauthorized
disclosure of information in a particular case. In addition, a parent of
any minor or a legal guardian of any individual will be required to
provide adequate proof of legal relationship before such person may act
on behalf of such minor or such individual.
(i) Fees. The fee for costs required of the IRS in copying records
pursuant to this paragraph is $0.15 per page. However, no fee will be
charged if the aggregate costs required of the IRS in copying records is
less than $3.00. If an individual who has requested access to inspect a
record in person is denied such access by the designated official
because it would not be feasible in a particular case, copies of such
record will be furnished to the individual without payment of the fees
otherwise required under this subparagraph. If the IRS estimates that
the total fees for costs incurred in complying with a request for copies
of records will amount to $50 or more, the individual making the request
may be required to enter into a contract for the payment of the actual
fees with respect to the request before the Service will furnish the
copies requested. Payment of fees for copies of records should be made
by check or money order payable to the Internal Revenue Service.
4. Procedures for amendment of records. (a) In general. This
paragraph sets forth the procedures for reviewing a request from an
individual concerning the amendment of any record or information
pertaining to such individual, for making a determination on the
request, for making an appeal within the IRS of an initial adverse
determination, and for judicial review of a final determination.
(b) Amendment of record. Under 5 U.S.C. 552a(d)(2), an individual
who has been granted access to a record pertaining to such individual
may, after inspecting the record, request that the record be amended to
make any correction of any portion thereof which the individual believes
is not accurate, relevant, timely, or complete. An individual may seek
to amend a record in accordance with the rules provided in paragraph
(d)(3) of this section. See paragraph (b) of this section for
prohibition against amendment of tax records.
(c) Form of request for amendment of record. (i) A request for
amendment of a record shall be in writing and shall be signed by the
individual making the request.
(ii) Such request shall be clearly marked ``Request for amendment of
record.''
(iii) Such request shall contain a statement that it is being made
under the provisions of the Privacy Act of 1974.
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(iv) Such request shall contain the name and address of the
individual making the request. In addition, if a particular system
employs an individual's social security number as an essential means of
accessing the system, the request must include the individual's social
security number. In the case of a record maintained in the name of two
or more individuals (e.g., husband and wife), the request shall contain
the names, addresses, and social security numbers (if necessary) of both
individuals.
(v) Such request shall specify the name and location of the system
of records (as set forth in the Notice of Systems) in which such record
is maintained, and the title and business address of the official
designated in the access section for such system (as set forth in the
Notice of Systems).
(vi) Such request shall specify the particular record in the system
which the individual is seeking to amend.
(vii) Such request shall clearly state the specific changes which
the individual wishes to make in the record and a concise explanation of
the reasons for the changes. If the individual wishes to correct or add
any information, the request shall contain specific language making the
desired correction or addition.
(d) Time and place for making request. A request to amend a record
under the Privacy Act shall be addressed to or delivered in person to
the office of the official designated in the access section for the
particular system of records. The title and office address of such
official is set forth for each system of records in the Notice of
Systems of Records. A request delivered to an office in person must be
delivered during the regular office hours of that office.
(e) Processing a request for amendment of a record. (i) Within 10
days (not including Saturdays, Sundays, and legal public holidays) after
the receipt of a request to amend a record by the designated official,
the individual will be sent a written acknowledgement that will state
that the request has been received, that action is being taken thereon,
and that the individual will be notified within 30 days (not including
Saturdays, Sundays, and legal public holidays) after the receipt of the
request whether the requested amendments will or will not be made. If a
request for amendment of a record omits any information which is
essential to processing the request, the request will not be acted upon
and the individual making the request will be promptly advised on the
additional information which must be submitted before the request can be
processed.
(ii) Within 30 days (not including Saturdays, Sundays, and legal
public holidays) after the receipt of a request to amend a record by the
designated official, a determination will be made as to whether to grant
the request in whole or part. The individual will then be notified in
writing of the determination. If a determination cannot be made within
30 days, the individual will be notified in writing within such time of
the reasons for the delay and the approximate time required to make a
determination. If it is determined by the designated official that the
request will be granted, the requested changes will be made in the
record and the individual will be notified of the changes. In addition,
to the extent an accounting was maintained, all prior recipients of such
record will be notified of the changes. Upon request, an individual will
be furnished with a copy of the record, as amended, subject to the
payment of the appropriate fees. On the other hand, if it is determined
by the designated official that the request, or any portion thereof,
will not be granted, the individual will be notified in writing of the
adverse determination. The notification of an adverse determination will
set forth the reasons for refusal to amend the record. In addition, the
notification will contain a statement informing the individual of such
individual's right to request an independent review of the adverse
determination by a reviewing officer in the national office of the IRS
and the procedures for requesting such a review.
(f) Administrative review of adverse determination. Under 5 U.S.C.
552a (d)(3), an individual who disagrees with the refusal of the agency
to amend a record may, within 35 days of being notified of the adverse
determination, request an independent review of such refusal by a
reviewing officer in the national office of the IRS. The reviewing
officer for the IRS is the Commission of Internal Revenue, the Deputy
Commissioner, or an Assistant Commissioner. In the case of an adverse
determination relating to a system of records maintained by the Office
of General Counsel for the IRS, the reviewing officer is the Chief
Counsel or his delegate. An individual seeking a review of an adverse
determination shall make a request for review in accordance with the
rules provided in paragraph (d)(7) of this section.
(g) Form of request for review. (i) A request for review of an
adverse determination shall be in writing and shall be signed by the
individual making the request.
(ii) Such request shall be clearly marked ``Request for review of
adverse determination''.
(iii) Such request shall contain a statement that it is being made
under the provisions of the Privacy Act of 1974.
(iv) Such request shall contain the name and address of the
individual making the request. In addition, if a particular system
employs an individual's social security number as an essential means of
accessing the system, the request must include the individual's social
security number. In the case of a record maintained in the name of two
or
[[Page 109]]
more individuals (e.g. husband and wife), the request shall contain the
names, addresses, and social security numbers (if necessary) of both
individuals.
(v) Such request shall specify the particular record which the
individual is seeking to amend, the name and location of the system of
records (as set forth in the Notice of Systems) in which such record is
maintained, and the title and business address of the designated
official for such system (as set forth in the Notice of Systems).
(vi) Such request shall include the date of the initial request for
amendment of the record, and the date of the letter notifying the
individual of the initial adverse determination with respect to such
request.
(vii) such request shall clearly state the specific changes which
the individual wishes to make in the record and a concise explanation of
the reasons for the changes. If the individual wishes to correct or add
any information, the request shall contain specific language making the
desired correction or addition.
(h) Time and place for making the request. A request for review of
an adverse determination under the Privacy Act shall be addressed to or
delivered in person to the Director, Office of Disclosure, Attention:
OP:EX:D Internal Revenue Service, 1111 Constitution Avenue, NW,
Washington, DC 20224. A request for review of an adverse determination
will be promptly referred by the Director, Office of Disclosure to the
appropriate reviewing officer for his review and final determination.
(i) Processing a request for review of adverse determination. Within
30 days (not including Saturdays, Sundays, and legal public holidays)
after the receipt of a request for review of an adverse determination by
the appropriate reviewing officer, the reviewing officer will review the
initial adverse determination, make a final determination whether to
grant the request to amend the record in whole or in part, and notify
the individual in writing of the final determination. If a final
determination cannot be made within 30 days, the Commissioner of
Internal Revenue may extend such 30-day period. The individual will be
notified in writing within the 30 day period of the cause for the delay
and the approximate time required to make a final determination. If it
is determined by the reviewing officer that the request to amend the
record will be granted, the reviewing officer will cause the requested
changes to be made and the individual will be so notified. Upon request,
an individual will be furnished with a copy of the record as amended
subject to the payment of appropriate fees. On the other hand, if it is
determined by the reviewing officer that the request to amend the
record, or any portion thereof, will not be granted, the individual will
be notified in writing of the final adverse determination. The
notification of a final adverse determination will set forth the reasons
for the refusal of the reviewing officer to amend the record. The
notification shall include a statement informing the individual of the
right to submit a concise statement for insertion in the record setting
forth the reasons for the disagreement with the refusal of the reviewing
officer to amend the record. In addition, the notification will contain
a statement informing the individual of the right to seek judicial
review by a United States district court of a final adverse
determination.
(j) Statement of disagreement. Under 5 U.S.C. 552a (d)(3), an
individual who disagrees with a final adverse determination not to amend
a record subject to amendment under the Privacy Act may submit a concise
statement for insertion in the record setting forth the reasons for
disagreement with the refusal of the reviewing officer to amend the
record. A statement of disagreement should be addressed to or delivered
in person to the Director, Office of Disclosure, Attention: OP:EX:D,
Internal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC
20224. The Director, Office of Disclosure will foward the statement of
disagreement to the appropriate designated official who will cause the
statement to be inserted in the individual's record. Any such statement
will be available to anyone to whom the record is subsequently disclosed
and the prior recipients of the record will be provided with a copy of
the statement of disagreement, to the extent an accounting of
disclosures was maintained.
(k) Judicial review. If, after a review and final determination on a
request to amend a record by the appropriate reviewing officer, the
individual is notified that the request will not be granted, or if,
after the expiration of 30 days (not including Sundays, Saturdays, and
legal public holidays) from the receipt of such request by the Director,
Disclosure Operations Division, action is not taken thereon in
accordance with the requirements of paragraph (d)(9) of this section, an
individual may commence an action within the time prescribed by law in a
U.S. District Court pursuant to 5 U.S.C. 552a (g)(1). The statute
authorizes an action only against the agency. With respect to records
maintained by the IRS, the agency is the Internal Revenue Service, not
an officer or employee thereof. Service of process in such an action
shall be in accordance with the Federal Rules of Civil Procedure (28
U.S.C. App.) applicable to actions against an agency of the United
States. Where provided in such Rules, delivery of process upon the IRS
must be directed to the Commissioner of Internal Revenue, Attention:
CC:GLS, 1111 Constitution Avenue, NW, Washington, DC 20224. The district
court will determine the matter de novo.
[[Page 110]]
5. Records transferred to Federal Records Centers. Records
transferred to the Administrator of General Services for storage in a
Federal Records Center are not used by the Internal Revenue Service in
making any determination about any individual while stored at such
location and therefore are not subject to the provisions of 5 U.S.C.
552a (e)(5) during such time.
Appendix C--United States Customs Service
1. In general. This appendix applies to the United States Customs
Service. It sets forth specific notification and access procedures with
respect to particular systems of records, identifies the officer
designated to make the initial determinations with respect to
notification and access to records and accountings of disclosures of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officers designated
to grant extensions of time on appeal, the officers with whom
``Statements of Disagreement may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published
annually by the Office of the Federal Register in ``Privacy Act
Issuances''.
2. Requests for notification and access to records and accounting of
disclosures. (a) For records which are maintained at the United States
Customs Service Headquarters, initial requests for notification and
access to records and accountings of disclosures under 31 CFR 1.26,
should be mailed or personally delivered to the Director, Office of
Regulations & Rulings, U.S. Customs Service, 1301 Constitution Avenue
NW., Washington, DC 20229. The official who has authority over the
maintenance of the file will have the authority to grant or deny the
request.
(b) For records maintained at Regional Offices, initial requests for
notification and access to records and accountings of disclosures under
31 CFR 1.26, should be mailed or personally delivered to the Regional
Commissioner of Customs in whose region the records are located. This
official shall have the authority to grant the request or deny the
request. The appropriate location of the regional offices is specified
in Customs Appendix A in ``Privacy Act Issuances'' published annually by
the Office of the Federal Register.
(c) Each request shall comply with the identification and other
requirements set forth in 31 CFR 1.26, and in the appropriate system
notice in the ``Privacy Act Issuances'' published annually by the Office
of the Federal Register. Each request should be conspicuously labeled on
the face of the envelope ``Privacy Act Request''.
3. Request for amendment of records. (a) For records which are
maintained at Customs Service Headquarters, initial requests for
amendment of records under 31 CFR 1.27 (a) through (d) should be mailed
or personally delivered to the Director, Office of Regulations &
Rulings, U.S. Customs Service, 1301 Constitution Avenue NW., Washington,
DC 20229. The official who has authority over the maintenance of the
file will have the authority to grant or deny the request.
(b) For records not maintained at Customs Service Headquarters,
initial requests for amendment of records under 31 CFR 1.27 (a) through
(d) should be mailed or personally delivered to the Regional
Commissioner of Customs in whose region the records are located. This
official shall have the authority to grant or deny the request. A
request directed to a Regional Commissioner should be mailed to or
personally delivered at the appropriate location specified in Customs
Appendix A in ``Privacy Act Issuances'' published annually by the Office
of the Federal Register.
(c) Each request shall comply with the identification and other
requirements set forth in 31 CFR 1.27, and in the appropriate system
notice in ``Privacy Act Issuance published by the Office of the Federal
Register. Each request should be conspicuously labeled on the face of
the envelope ``Privacy Act Amendment Request''.
4. Administrative appeal of initial determination refusing to amend
records. Appellate determinations (including extensions of time on
appeal under 31 CFR 1.27 (e) with respect to all Customs Service records
will be made by the Director, Office of Regulations & Rulings or the
delegate of such official. All such appeals should be mailed or
personally delivered to the United States Customs Service, Office of
Regulations & Rulings, 1301 Constitution Avenue NW., Washington, DC
20229. Each appeal should be conspicuously labeled on the face of the
envelope ``Privacy Act Amendment Appeal''.
5. Statements of disagreement. ``Statements of Disagreement''
pursuant to 31 CFR 1.27 (e)(4)(i) shall be filed with the official
signing the notification of refusal to amend at the address indicated in
the letter of notification within 35 days of the date of such
notification and should be limited to one page.
6. Service of process. Service of process will be received by the
Chief Counsel, United States Customs Service, 1301 Constitution Avenue
NW., Washington, DC 20229.
7. Annual notice of systems of records. The annual notice of the
United States Customs Service systems of records required to be
[[Page 111]]
published by the Office of the Federal Register, as specified in 5
U.S.C. 552a(f), is included in the publication entitled ``Privacy Act
Issuances''.
8. Verification of identity. Each request shall comply with the
identification and other requirements set forth in 31 CFR 1.26 and in
the appropriate system notice published by the Office of the Federal
Register. Each request should be conspicuously labeled on the face of
the envelope ``Privacy Act Request''.
Appendix D--United States Secret Service
1. In general. This appendix applies to the United States Secret
Service. It sets forth specific notification and access procedures with
respect to particular systems of records including identification
requirements, and time and places where records may be reviewed;
identifies the officers designated to make the initial determinations
with respect to notification and access to records and accountings of
disclosures of records. This appendix also sets forth the specific
procedures for requesting amendment of records and identifies the
officers designated to make the initial and appellate determinations
with respect to requests for amendment of records. It identifies the
officers designated to grant extensions of time on appeal, the officers
with whom ``Statements of Disagreement may be filed, the officer
designated to receive service of process and the addresses for delivery
of requests, appeals, and service of process. In addition, it references
the notice of systems of records and notices of the routine uses of the
information in the system required by 5 U.S.C. 552a(e) (4) and (11) and
published annually by the Office of the Federal Register in ``Privacy
Act Issuances''.
2. Requests for notification and access to records and accountings
of disclosures. Initial determinations under 31 CFR 1.26, whether to
grant requests for notification and access to records and accountings of
disclosures for the United States Secret Service, will be made by the
Freedom of Information and Privacy Act Officer, United States Secret
Service. Requests for notification should be made by mail or delivered
personally between the hours of 9:00 a.m. and 5:30 of any day excluding
Saturdays, Sundays, and legal holidays to: Privacy Act Request, Freedom
of Information and Privacy Act Officer, United States Secret Service,
Room 720, 1800 G Street NW., Washington, DC 20223.
a. Identification requirements. In addition to the requirements
specified in 31 CFR 1.26, each request for notification, access or
amendment of records made by mail shall contain the requesting
individual's date and place of birth and a duly notarized statement
signed by the requester asserting his or her identity and stipulating
that the requesting individual understands that knowingly or willfully
seeking or obtaining access to records about another person under false
pretences is punishable by a fine of up to $5,000.
b. Individuals making requests in person. Individuals making
requests in person will be required to exhibit acceptable identifying
documents such as employee identification numbers, drivers licenses,
medical cards or other documents sufficient to verify the identity of
the requester.
c. Physical inspection of records. Upon determining that a request
for the physical inspection of records is to be granted, the requester
shall be notified in writing of the determination, and when and where
the requested records may be inspected. The inspection of records will
be conducted at the Secret Service field office or other facility
located nearest to the residence of the individual making the request.
Such inspection shall be conducted during the regular business hours of
the Secret Service Field Office or other facility where the disclosure
is made. A person of his or her own choosing may accompany the
individual making the request provided the individual furnishes a
written statement authorizing the disclosure of that individual's record
in the accompanying person's presence. Any disclosure of a record will
be made in the presence of a representative of the United States Secret
Service.
3. Requests for amendment of records. Initial determination under 31
CFR part 1, whether to grant requests to amend records will be made by
the Freedom of Information and Privacy Act Officer. Requests should be
mailed or delivered personally between the hours of 9:00 a.m. and 5:30
p.m. to: Privacy Act Amendment Request, Freedom of Information and
Privacy Acts Officer, United States Secret Service, Room 720, 1800 G
Street NW., Washington, DC 20223.
4. Administrative appeal of initial determinations refusing
amendment of records. Appellate determinations refusing amendment of
records under 31 CFR 1.27 including extensions of time on appeal, with
respect to records of the United States Secret Service will be made by
the Assistant Secretary of the Treasury for Enforcement. Appeals made by
mail should be addressed to, or delivered personally to: Privacy Act
Amendment Appeal, Assistant Secretary of the Treasury for Enforcement,
Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC
20220.
5. Statements of disagreement. ``Statements of Disagreements'' under
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing of the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
United States Secret
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Service General Counsel and shall be delivered to the following
location: General Counsel, United States Secret Service, Room 843, 1800
G Street NW., Washington, DC 20223.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
Appendix E--Bureau of Alcohol, Tobacco and Firearms
1. In general. This appendix applies to the Bureau of Alcohol,
Tobacco and Firearms. It sets forth specific notification and access
procedures with respect to particular systems of records, identifies the
officers designated to make the initial determinations with respect to
notification and access to records and accountings of disclosures of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officers designated
to grant extensions of time on appeal, the officers with whom
``Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a (3) (4) and (11) and published
annually by the Office of the Federal Register in ``Privacy Act
Issuances''.
2. Requests for notification and access to records and accountings
of disclosures. Initial determination under 31 CFR 1.26, whether to
grant requests for notification and access to records and accountings of
disclosures for the Bureau of Alcohol, Tobacco, and Firearms, will be
made by the Chief, Disclosure Branch, Office of the Assistant to the
Director or the delegate of such officer. Requests may be mailed or
delivered in person to: Privacy Act Request, Chief, Disclosure Branch,
Room 4406, Bureau of Alcohol, Tobacco and Firearms, 1200 Pennsylvania
Avenue, NW., Washington, DC 20226.
3. Requests for amendment of record. Initial determinations under 31
CFR 1.27 (a) through (d) with respect to requests to amend records
maintained by the Bureau of Alcohol, Tobacco and Firearms will be made
by the Chief, Disclosure Branch, Office of the Assistant to the
Director. Requests for amendment of records may be mailed or delivered
in person to: Privacy Act Request, Chief, Disclosure Branch, Room 4406,
Bureau of Alcohol, Tobacco and Firearms, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20226.
4. Verification of identity. (a) In addition to the requirements
specified in 31 CFR 1.26(d) of this appendix, each request for
notification, access or amendment of records made by mail shall contain
the requesting individual's date and place of birth and a statement
signed by the requester asserting his or her identity and stipulating
that the requester understands that knowingly or willfully seeking or
obtaining access to records about another person under false pretenses
is a misdemeanor and punishable by a fine of up to $5,000 provided, that
the Bureau of Alcohol, Tobacco and Firearms may require a signed
notarized statement verifying the identity of the requester.
(b) Individuals making requests in person will be required to
exhibit at least two acceptable identifying documents such as employee
identification cards, driver's license, medical cards, or other
documents sufficient to verify the identity of the requester.
(c) The parent or guardian of a minor or a person judicially
determined to be incompetent, shall in addition to establishing the
identity of the minor or other person he represents as required in (a)
and (b), establish his own parentage or guardianship by furnishing a
copy of a birth certificate showing parentage (or other satisfactory
documentation) or a court order establishing the guardianship.
5. Request for physical inspection of records. Upon determining that
a request for the physical inspection of records is to be granted, the
requester shall be notified in writing of the determination, and when
and where the records may be inspected. The inspection of records will
be made at the Bureau of Alcohol, Tobacco and Firearms Field Office or
other facility located nearest to the residence of the individual making
the request. Such inspection shall be conducted during the regular
business hours of the field office or other facility where the
disclosure is made. A person of the requester's own choosing may
accompany the requester provided the requester furnishes a written
statement authorizing the disclosure of the requester's record in the
accompanying person's presence. The record inspection will be made in
the presence of a representative of the Bureau. Following the inspection
of the record, the individual will acknowledge in writing the fact that
he or she had an opportunity to inspect the requested record.
6. Requests for copies of records without prior physical inspection.
Upon determining that an individual's request for copies of his or her
records without prior physical inspection is to be granted, the
requester shall be notified in writing of the determination, and the
location and time for his or her receipt of the requested copies. The
copies will be made
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available at the Bureau of Alcohol, Tobacco and Firearms field office or
other facility located nearest to the residence of the individual making
the request. Copies shall be received by the requester during the
regular business hours of the field office or other facility where the
disclosure is made. Transfer of the copies to the individual shall be
conditioned upon payment of copying costs and his presentation of at
least two acceptable identifying documents such as employee
identification cards, driver's license, medical cards, or other
documents sufficient to verify the identity of the requester. Following
the receipt of the copies, the individual will acknowledge receipt in
writing.
7. Administrative appeal of initial determination refusing to amend
record. Appellate determinations under 31 CFR 1.27(e) with respect to
records of the Bureau of Alcohol, Tobacco and Firearms, including
extensions of time on appeal, will be made by the Director or the
delegate of such officer. Appeals should be addressed to, or delivered
in person to: Privacy Act Amendment Appeal, Director, Bureau of Alcohol,
Tobacco and Firearms, Room 4406, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20226.
8. Statements of disagreement. ``Statements of Disagreement'' as
described in 31 CFR 1.27(e) (4) shall be filed with the official signing
the notification within 35 days of the date of such notification and
should be limited to one page.
9. Service of process. Service of process will be received by the
Director of the Bureau of Alcohol, Tobacco and Firearms or the delegate
of such official and shall be delivered to the following location:
Director, Bureau of Alcohol, Tobacco and Firearms, 1200 Pennsylvania
Avenue, NW., Washington, DC 20226, Attention: Chief Counsel.
10. Annual notice of systems of records. The annual notice of
systems of records is published by the Office of the Federal Register,
as specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy
Act Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for each pertinent
system.
Appendix F--Bureau of Engraving and Printing
1. In general. This appendix applies to the Bureau of Engraving and
Printing. It sets forth specific notification and access procedures with
respect to particular systems of records including identification
requirements, identifies the officers designated to make the initial
determinations with respect to notification and access to records and
accountings of disclosures of records. This appendix also sets forth the
specific procedures for requesting amendment of records and identifies
the officers designated to make the initial and appellate determinations
with respect to requests for amendment of records. It identifies the
officers designated to grant extensions of time on appeal, the officers
with whom ``Statements of Disagreement may be filed, the officer
designated to receive service of process and the addresses for delivery
of requests, appeals, and service of process. In addition, it references
the notice of systems of records and notices of the routine uses of the
information in the system required by 5 U.S.C. 552a (e) (4) and (11) and
published annually by the Office of the Federal Register in ``Privacy
Act Issuances.''
2. Requests for notification and access to records and accountings
of disclosures. Initial determinations under 31 CFR 1.26, whether to
grant requests for notification and access to records and accountings of
disclosures for the Bureau of Engraving and Printing, will be made by
the head of the organizational unit having immediate custody of the
records requested, or the delegate of such official. Requests for access
to records contained within a particular system of records should be
submitted to the address indicated for that system in the access section
of the notices published by the Office of the Federal Register in
``Privacy Act Issuances.'' Requests for information and specific
guidance should be addressed to: Privacy Act Request, Disclosure Officer
(Executive Assistant to the Director), Room 104--18M, Bureau of
Engraving and Printing, Washington, DC 20228.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27 (a) through (d), whether to grant request to amend records will
be made by the head of the organizational unit having immediate custody
of the records or the delegate of such official. Requests for amendment
should be addressed as indicated in the appropriate system notice in
``Privacy Act Issuances'' published by the Office of the Federal
Register. Requests for information and specific guidance on where to
send requests for amendment should be addressed to: Privacy Act
Amendment Request, Disclosure Officer (Executive Assistant to the
Director), Bureau of Engraving and Printing, Room 104-18M, Washington,
DC 20228.
4. Administrative appeal of initial determinations refusing
amendment of records. Appellate determinations refusing amendment of
records under 31 CFR 1.27(e) including extensions of time on appeal,
with respect to records of the Bureau of Engraving and Printing will be
made by the Director of the Bureau or the delegate of such officer.
Appeals made by mail should be addressed to, or delivered personally to:
Privacy Act Amendment Appeal, Disclosure Officer (Executive Assistant to
the Director), Room 104-18M, Bureau of Engraving and Printing,
Washington, DC 20228.
[[Page 114]]
5. Statements of disagreement. ``Statements of Disagreement'' under
31 CFR 1.27(e)(4)(8) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
Chief Counsel of the Bureau of Engraving and Printing and shall be
delivered to the following location: Chief Counsel, Bureau of Engraving
and Printing, Room 109-M, 14th and C Streets, SW., Washington, DC 20228.
7. Verification of identity. An individual seeking notification or
access to records, or seeking to amend a record, or seeking an
accounting of disclosures, must satisfy one of the following
identification requirements before action will be taken by the Bureau of
Engraving and Printing on any such request:
(i) An individual appearing in person may establish identity by the
presentation of a single document bearing a photograph (such as a
passport or identification badge) or by the presentation of two items of
identification which do not bear a photograph, but do bear both a name
and signature (such as a credit card).
(ii) An individual may establish identity through the mail by a
signature, address, and one other identifier such as a photocopy of a
driver's license or other document bearing the individual's signature.
(iii) Notwithstanding subdivisions (i) and (ii) of this
subparagraph, an individual who so desires, may establish identity by
providing a notarized statement, swearing or affirming to such
individual's identity and to the fact that the individual understands
the penalties provided in 5 U.S.C. 552a(1)(3) for requesting or
obtaining access to records under false pretenses.
Notwithstanding subdivision (i), (ii), or (iii) of this
subparagraph, the Executive Assistant or other designated official may
require additional proof of an individual's identity before action will
be taken on any request if such official determines that it is necessary
to protect against unauthorized disclosure of information in a
particular case. In addition, a parent of any minor or a legal guardian
of any individual will be required to provide adequate proof of legal
relationship before such person may act on behalf of such minor or such
individual.
8. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 522a(f). The publication is entitled ``Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
Appendix G--Financial Management Service
1. In general. This appendix applies to the Financial Management
Service. It sets forth specific notification and access procedures with
respect to particular systems of records, identifies the officers
designated to make the initial determinations with respect to
notification and access to records and accountings of disclosures of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officers designated
to grant extensions of time on appeal, the officers with whom
``Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published
annually by the Office of the Federal Register in ``Privacy Act
Issuances''.
2. Requests for notification and access to records and accountings
of disclosures. Initial determinations under 31 CFR 1.26, whether to
grant requests for notification and access to records and accountings of
disclosures for the Financial Management Service, will be made by the
head of the organizational unit having immediate custody of the records
requested or an official designated by this official. This is indicated
in the appropriate system notice in ``Privacy Act Issuances'' published
annually by the Office of the Federal Register. Requests for information
and specific guidance on where to send requests for records may be
mailed or delivered personally to: Privacy Act Request, Disclosure
Officer, Financial Management Service, Room 108, Treasury Department
Annex No. 1, Pennsylvania Avenue and Madison Place, NW., Washington, DC
20226.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27(a) through (d), whether to grant requests to amend records will
be made by the head of the organzational unit having immediate custody
of the records or the delegate of such official. Requests for amendment
should be addressed as indicated in the appropriate system notice in
``Privacy Act Issuances'' published by the Office of the Federal
Register. Requests for information and specific guidance on where to
send requests for amendment should be addressed to: Privacy Act
Amendment Request, Disclosure Officer, Financial Management Service,
Department of the Treasury, Treasury Annex No. 1, Washington, DC 20226.
4. Administrative appeal of initial determinations refusing
amendment of records. Appellate
[[Page 115]]
determinations refusing amendment of records under 31 CFR 1.27(e)
incuding extensions of time on appeal, with respect to records of the
Financial Management Service will be made by the Commissioner or the
delegate of such official. Appeals made by mail should be addressed to,
or delivered personally to: Privacy Act Amendment Appeal Commissioner,
Financial Management Service (Privacy), Department of the Treasury, Room
618, Treasury Annex No. 1, Pennsylvania Avenue and Madison Place, NW.,
Washington, DC 20226.
5. Statements of disagreement. ``Statements of Disagreement'' under
31 CFR 1.27(e)(4)(i) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
Commissioner, Financial Management Service or the delegate of such
official and shall be delivered to the following location: Commissioner,
Financial Management Service (Privacy), Department of the Treasury, Room
618, Treasury Annex No. 1, Pennsylvania Avenue and Madison Place, NW,
Washington, DC 20226.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
Appendix H--United States Mint
1. In general. This appendix applies to the United States Mint. It
sets forth specific notification and access procedures with respect to
particluar systems of records, identifies the officers designated to
make the initial determinations with respect to notification and access
to records and accountings of disclosures of records. This appendix also
sets forth the specific procedures for requesting amendment of records
and identifies the officers designated to make the initial and appellate
determinations with respect to requests for amendment of records. It
identifies the officers designated to grant extensions of time on
appeal, the officers with whom ``Statements of Disagreement'' may be
filed, the officer designated to receive service of process and the
addresses for delivery of requests, appeals, and service of process. In
addition, it references the notice of systems of records and notices of
the routine uses of the information in the system required by 5 U.S.C.
552a(e) (4) and (11) and published annually by the Office of the Federal
Register in ``Privacy Act Issuances''.
2. Requests for notification and access to records and accountings
of disclosures. Initial determinations under 31 CFR 1.26, whether to
grant requests for notification and access to records and accountings of
disclosures for the United States Mint will be made by the head of the
organizational unit having immediate custody of the records requested or
an official designated by this official. This is indicated in the
appropriate system notice in ``Privacy Act Issuances'' published
annually by the Office of the Federal Register. Requests should be
directed to the Superintendent or Officer in charge of the facility in
which the records are located or to the Chief, Administrative Programs
Division. Requests for information and specific guidance on where to
send requests for records may be mailed or delivered personally to:
Privacy Act Request, Chief, Administrative Programs Division, United
States Mint, Judiciary Square Building, 633 3rd Street, N.W, Washington,
DC 20220.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27 (a) through (d), whether to grant requests to amend records
will be made by the head of the Mint installation having immediate
custody of the records or the delegated official. Requests should be
mailed or delivered personally to: Privacy Act Amendment Request,
Freedom of Information and Privacy Acts Officer, United States Mint,
Judiciary Square Building, 633 3rd Street, Washington, DC 20220.
4. Administrative appeal of initial determinations refusing
amendment of records. Appellate determinations refusing amendment of
records under 31 CFR 1.27 including extensions of time on appeal, with
respect to records of the United States Mint will be made by the
Director of the Mint or the delegate of the Director. Appeals made by
mail should be addressed to, or delivered personally to: Privacy Act
Amendment Appeal, United States Mint, Judiciary Square Building, 633 3rd
Street, NW, Washington, DC 20220.
5. Statements of disagreement. ``Statements of Disagreement'' under
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
Director of the Mint and shall be delivered to the following location:
Director of the Mint, Judiciary Square Building, 633 3rd street, NW.,
Washington, DC 20220.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act
Issuances''.
[[Page 116]]
Any specific requirements for access, including identification
requirements, in addition to the requirements set forth in 31 CFR 1.26
and 1.27 are indicated in the notice for the pertinent system.
Appendix I--Bureau of the Public Debt
1. In general. This appendix applies to the Bureau of the Public
Debt. It sets forth specific notification and access procedures with
respect to particular systems of records, identifies the officers
designated to make the initial determinations with respect to
notification and access to records and accountings of disclosures of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officer designated
to grant extension of time on appeal, the officers with whom
``Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published
annually by the Office of the Federal Register in ``Privacy Act
Issuances''.
2. Requests for notification and access to records and accountings
of disclosures. Initial determinations under 31 CFR 1.26, whether to
grant requests for notification and access to records and accountings of
disclosures for the Bureau of Public Debt, will be made by the head of
the organizational unit having immediate custody of the records
requested or an official designated by this official. This is indicated
in the appropriate system notice in ``Privacy Act Issuances'' published
annually by the Office of the Federal Register. Requests for information
and specific guidance on where to send requests for records may be
mailed or delivered personnaly to: Privacy Act Request, Information
Officer, Bureau of the Public Debt, Department of the Treasury, 999 E
Street NW. Room 553, Washington, DC 20239.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27 (a) through (d), whether to grant requests to amend records
will be made by the head of the organizational unit having immediate
custody of the records or the delegate of such official. Requests for
amendment should be addressed as indicated in the appropriate system
notice in ``Privacy Act Issuances'' published by the Office of the
Federal Register. Requests for information and specific guidance on
where to send requests for amendment should be addressed to: Privacy Act
Amendment Request, Information Officer, Bureau of the Public Debt,
Department of the Treasury, 999 E Street NW., Room 553, Washington, DC
20239.
4. Administrative appeal of initial determinations refusing
amendment of records. Appellate determinations refusing amendment of
records under 31 CFR 1.27(e) including extensions of time on appeal,
with respect to records of the Bureau of the Public Debt will be made by
the Commissioner of the Public Debt or the delegate of such officer.
Appeals made by mail should be addressed to, or delivered personally to:
Privacy Act Amendment Appeal, Chief Counsel, Bureau of the Public Debt,
Department of the Treasury, 999 E Street NW., Room 503, Washington, DC
20239.
5. Statements of disagreement. ``Statements of Disagreement'' under
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
Chief Counsel of the Bureau of the Public Debt and shall be delivered to
the following location: Chief Counsel, Bureau of the Public Debt,
Department of the Treasury, 999 E Street, NW., Room 503, Washington, DC
20239.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
Appendix J--Office of the Comptroller of the Currency
1. In general. This appendix applies to the Office of the
Comptroller of the Currency. It sets forth specific notification and
access procedures with respect to particular systems of records,
identifies the officers designated to make the initial determinations
with respect to notification and access to records and accountings of
disclosures of records. This appendix also sets forth the specific
procedures for requesting amendment of records and identifies the
officers designated to make the intial and appellate determinations with
respect to requests for amendment of records. It identifies the officers
designated to grant extensions of time on appeal, the officers with whom
``Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records
[[Page 117]]
and notices of the routine uses of the information in the system
required by 5 U.S.C. 552a(e) (4) and (11) and published annually by the
Office of the Federal Register in ``Privacy Act Issuances''.
2. Requests for notification and access to records and accountings
of disclosures. Initial determinations under 31 CFR 1.26 whether to
grant requests for notification and access to records and accountings of
disclosures for the Office of the Comptroller of the Currency will be
made by the head of the organizational unit having immediate custody of
the records requested or the delegate of that official. This is
indicated in the appropriate system notice in ``Privacy Act Issuances''
published biennially by the Office of the Federal Register. Requests for
information and specific guidance on where to send requests for records
shall be mailed or delivered personally to: Disclosure Officer,
Communications Division, Office of the Comptroller of the Currency, 250
E Street, SW, Washington, DC 20219.
3. Requests for amendment of records. Initial determinations under
31 CFR 1.27 (a) through (d) whether to grant requests to amend records
will be made by the Comptroller's delegate or the head of the
organizational unit having immediate custody of the records or the
delegate of that official. Requests for amendment shall be mailed or
delivered personally to: Disclosure Officer, Communications Division,
Office of the Comptroller of the Currency, 250 E Street, SW.,
Washington, DC 20219.
4. Administrative appeal of initial determinations refusing
amendment of records. Appellate determinations refusing amendment of
records under 31 CFR 1.27(e) including extensions of time on appeal,
with respect to records of the Office of the Comptroller of the Currency
will be made by the Comptroller of the Currency or the Comptroller's
delegate. Appeals shall be mailed or delivered personally to: Disclosure
Officer, Communications Division, Office of the Comptroller of the
Currency, 250 E Street, SW., Washington, DC 20219.
5. Statements of disagreement. ``Statements of Disagreement'' under
31 CFR 1.27(e)(4)(i) shall be filed with the OCC's Director of
Communications at the address indicated in the letter of notification
within 35 days of the date of such notification and should be limited to
one page.
6. Service of process. Service of process shall be delivered to the
Chief Counsel or the Chief Counsel's delegate at the following location:
Office of the Comptroller of the Currency, 250 E Street, SW.,
Washington, DC 20219.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
[52 FR 26305, July 14, 1987, as amended at 60 FR 57333, Nov. 15, 1995]
Appendix K--U.S. Savings Bonds Division
1. In general. This appendix applies to the U.S. Savings Bonds
Division. It sets forth specific notification and access procedures with
respect to particular systems of records, identifies the officers
designated to make the initial determinations with respect to
notification and access to records and accountings of disclosures of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officers designated
to grant extensions of time on appeal, the officers with whom
``Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 52a(e) (4) and (11) and published
annually by the Office of the Federal Register in ``Privacy Act
Issuances.''
2. Requests for notification and access to records and accountings
of disclosures. Initial determinations under 31 CFR 1.26, whether to
grant requests for notification and access to records and accountings of
disclosures for the Financial Management Service, will be made by the
head of the organizational unit having immediate custody of the records
requested or an official designated by this official. This is indicated
in the appropriate system notice in ``Privacy Act Issuances'' published
annually by the Office of the Federal Register. Requests for information
and specific guidance on where to send requests for records may be
mailed or delivered personally to: Privacy Act Request, U.S. Savings
Bonds Division, Department of the Treasury, 1111 20th Street, NW.,
Washington, DC 20226.
3. Requests for amendment of records. Initial determination under 31
CFR 1.27 (a) through (d), whether to grant requests to amend records
will be made by the head of the organizational unit having immediate
custody of the records or the delegate of such official. Requests for
amendment should be addressed as indicated in the appropriate system
notice in ``Privacy Act Issuances'' published by the Office of the
Federal Register. Requests for information and specific guidance on
where to send requests for amendment should be
[[Page 118]]
addressed to: Privacy Act Amendment Request, Privacy Act Contact, U.S.
Savings Bonds Division, Department of the Treasury, 1111 20th Street,
NW., Washington, DC 20226.
4. Administrative appeal of initial determinations refusing
amendment of records. Appellate determinations refusing amendment of
records under 31 CFR 1.27(e) including extensions of time on appeal,
with respect to records of the U .S. Savings Bonds Division will be made
by the National Director, U.S. Savings Bonds Division or the delegate of
such officer. Appeals made by mail should be addressed to, or delivered
personally to: Privacy Act Amendment Appeal, National Director, U.S.
Savings Bonds Division, Department of the Treasury, 1111 20th Street,
NW., Washington, DC 20226.
5. Statements of disagreement. ``Statements of Disagreement'' under
31 CFR 1.27 (e)(4)(i) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
General Counsel of the Department of the Treasury or the delegate of
such official and shall be delivered to the following location: General
Counsel, Room 3000-MT, Department of the Treasury, 1500 Pennsylvania
Avenue, NW., Washington, DC 20220.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
Appendix L--Federal Law Enforcement Training Center
1. In general. This appendix applies to the Federal Law Enforcement
Training Center. It sets forth specific notification and access
procedures with respect to particular systems of records, identifies the
officers designated to make the initial determinations with respect to
notification and access to records and accountings of disclosure of
records. This appendix also sets forth the specific procedures for
requesting amendment of records and identifies the officers designated
to make the initial and appellate determinations with respect to
requests for amendment of records. It identifies the officers designated
to grant extensions of time on appeal, the officers with whom
``Statements of Disagreement'' may be filed, the officer designated to
receive service of process and the addresses for delivery of requests,
appeals, and service of process. In addition, it references the notice
of systems of records and notices of the routine uses of the information
in the system required by 5 U.S.C. 552a(e) (4) and (11) and published
annually by the Office of the Federal Register, in ``Privacy Act
Issuances''.
2. Requests for notification and access to records and accounting of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and acesss to records and accounting of
disclosures for the Federal Law Enforcement Training Center, will be
made by the head of the organizational unit having immediate custody of
the records requested or an official designated by this official. This
is indicated in the appropriate system notice in ``Privacy Act
Issuances'' published annually by the Office of the Federal Register.
Requests for information and specific guidance on where to send requests
for records may be mailed or delivered personally to: Privacy Act
Request, Library Building 262, Federal Law Enforcement Training Center,
Glynco, Georgia 31524.
3. Requests for amendment of records. Initial determinations under
31 CFR 1.27 (a) through (d), whether to grant requests to amend records
will be made by the head of the organizational unit having immediate
custody of the records or the delegate of such official. Requests for
amendment should be addressed as indicated in the appropriate system
notice in ``Privacy Act Issuances'' published by the Office of the
Federal Register. Requests for information and specific guidance on
where to send requests for amendment should be addressed to: Privacy Act
Amendment Request, Federal Law Enforcement Training Center, Glynco,
Georgia 31524.
4. Administrative appeal of initial determinations refusing
amendment of records. Appellate determinations refusing amendment of
records under 31 CFR 1.27(e) including extensions of time on appeal,
with respect to records of the Federal Law Enforcement Training Center
will be made by the Assistant Secretary (Enforcement), Department of the
Treasury or the delegate of such officer. Appeals made by mail should be
addressed to, or delivered personally to: Privacy Act Amendment Appeal,
FLETC, Assistant Secretary (Enforcement), Department of the Treasury,
1500 Pennsylvania Avenue, NW., Room 4312, Washington, DC 20220.
5. Statements of disagreement. ``Statements of Disagreement'' under
31 CFR 1.27(e)(4)(i) shall be filed with the official signing the
notification of refusal to amend at the address indicated in the letter
of notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
General Counsel of the Department of the Treasury or the delegate of
[[Page 119]]
such official and shall be delivered to the following location: General
Counsel, Department of the Treasury, Room 3000, Main Treasury Building,
1500 Pennsylvania Avenue, NW., Washington, DC 20220.
7. Annual notice of systems of records. The annual notice of systems
of records is published by the Office of the Federal Register, as
specified in 5 U.S.C. 552a(f). The publication is entitled ``Privacy Act
Issuances''. Any specific requirements for access, including
identification requirements, in addition to the requirements set forth
in 31 CFR 1.26 and 1.27 are indicated in the notice for the pertinent
system.
Appendix M--Office of Thrift Supervision
1. In general. This appendix applies to the Office of Thrift
Supervision. It sets forth specific notification and access procedures
with respect to particular systems of records, and identifies the
officers designated to make the initial determinations with respect to
notification and access to records, the officers designated to make the
initial and appellate determinations with respect to requests for
amendment of records, the officers designated to grant extensions of
time on appeal, the officers with whom ``Statement of Disagreement'' may
be filed, the officer designated to receive services of process and the
addresses for delivery of requests, appeals, and service of process. In
addition, it references the notice of systems of records and notices of
the routine uses of the information in the system required by 5 U.S.C.
552a(e) (4) and (11) and published biennially by the Office of the
Federal Register in ``Privacy Act Issuances.''
2. Requests for notification and access to records and accounting of
disclosures. Initial determinations under 31 CFR 1.26, whether to grant
requests for notification and access to records and accountings of
disclosures for the Office of Thrift Supervision, will be made by the
head of the organizational unit having immediate custody of the records
requested, or the delegate of such official. This information is
contained in the appropriate system notice in the ``Privacy Act
Issuances,'' published biennially by the Office of the Federal Register.
Requests for information and specific guidance on where to send requests
for records should be addressed to: Privacy Act Request, Chief,
Disclosure Branch, Information Services Division, Office of Thrift
Supervision, 1700 G Street, NW., Washington, DC 20552.
Requests may be delivered in person to: Office of Thrift
Supervision, Information Services Division, 1700 G Street, NW.,
Washington, DC.
3. Requests for amendments of records. Initial determinations under
31 CFR 1.27 (a) through (d) with respect to requests to amend records
maintained by the Office of Thrift Supervision will be made by the head
of the organization or unit having immediate custody of the records or
the delegates of such official. Requests for amendment of records should
be addressed as indicated in the appropriate system notice in ``Privacy
Act Issuances'' published by the Office of the Federal Register.
Requests for information and specific guidance on where to send these
requests should be addressed to: Privacy Act Amendment Request, Chief,
Disclosure Branch, Information Services Division, Office of Thrift
Supervision, 1700 G Street, NW., Washington, DC 20552.
Privacy Act Amendment Requests may be delivered in person to: Office
of Thrift Supervision, Information Services Division, 1700 G Street,
NW., Washington, DC.
4. Administrative appeal of initial determination refusing to amend
record. Appellate determination under 31 CFR 1.27(e) with respect to
records of the Office of Thrift Supervision, including extensions of
time on appeal, will be made by the Director, Public Affairs, Office of
Thrift Supervision, or the delegate of such official, as limited by 5
U.S.C. 552a(d) (2) and (3). Appeals made by mail should be addressed as
indicated in the letter of initial decision or to: Privacy Act Amendment
Request, Chief, Disclosure Branch, Information Services Division, Office
of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.
Appeals may be delivered in person to: Office of Thrift Supervision,
Information Services Division, 1700 G Street, NW., Washington, DC.
5. Statements of Disagreement. ``Statements of Disagreement'' as
described in 31 CFR 1.27(e)(4) shall be filed with the official signing
the notification of refusal to amend at the address indicated in the
letter of notification within 35 days of the date of notification and
should be limited to one page.
6. Service of process. Service of process will be received by the
Corporate Secretary of the Office of Thrift Supervision or the delegate
of such official and shall be delivered to the following location:
Corporate Secretary, Office of Thrift Supervision, 1700 G Street, NW.,
Washington, DC 20552.
7. Annual notice of systems of record. The annual notice of systems
of records required to be published by the Office of the Federal
Register is included in the publication entitled ``Privacy Act
Issuances,'' as specified in 5 U.S.C. 552a(f). Any specific requirements
for access, including identification requirements, in addition to the
requirements set forth in 31 CFR 1.26 and 1.27 and (8) below, and
locations for access are indicated in the notice for the pertinent
system.
8. Verification of identity. An individual seeking notification or
access to records, or seeking to amend a record, must satisfy one of the
following identification requirements
[[Page 120]]
before action will be taken by the Office of Thrift Supervision on any
such request:
(i) An individual seeking notification or access to records in
person, or seeking to amend a record in person, may establish identity
by the presentation of a single official document bearing a photograph
(such as a passport or identification badge) or by the presentation of
two items of identification which do not bear a photograph but do bear
both a name and signature (such as a driver's license or credit card).
(ii) An individual seeking notification or access to records by
mail, or seeking to amend a record by mail, may establish identity by a
signature, address, and one other identifier such as a photocopy of a
driver's license or other official document bearing the individual's
signature.
(iii) Notwithstanding subdivisions (i) and (ii) of this
subparagraph, an individual seeking notification or access to records by
mail or in person, or seeking to amend a record by mail or in person,
who so desires, may establish identity by providing a notarized
statement, swearing or affirming to such individual's identity and to
the fact that the individual understands the penalties provided in 5
U.S.C. 552a(i)(3) for requesting or obtaining access to records under
false pretenses. Alternatively, an individual may provide a statement
that the individual understands the penalties provided in 5 U.S.C.
552a(i)(3) for requesting or obtaining access to records under false
pretenses which is subscribed by the individual as true and correct
under penalty of perjury pursuant to 28 U.S.C. 1746. Notwithstanding
subdivision (i), (ii), or (iii) of this subparagraph, a designated
official may require additional proof of an individual's identity before
action will be taken on any request, if such official determines that it
is necessary to protect against unauthorized disclosure of information
in a particular case. In addition, a parent of any minor or a legal
guardian of any individual will be required to provide adequate proof of
legal relationship before such person may act on behalf of such minor or
such individual.
[60 FR 31633, June 16, 1995]
PART 2--NATIONAL SECURITY INFORMATION--Table of Contents
Subpart A--Original Classification
Sec.
2.1 Classification levels [1.1(a)].
2.2 Classification Authority.
2.3 Listing of original classification authorities.
2.4 Record requirements.
2.5 Classification categories.
2.6 Duration of classification.
2.7 Identification and markings [1.5(a), (b) (c)].
2.8 Limitations on classification [1.6(c)].
Subpart B--Derivative Classification
2.9 Derivative Classification Authority.
2.10 Listing derivative classification authorities.
2.11 Use of derivative classification [2.1].
2.12 Classification guides.
2.13 Derivative identification and markings [1.5(c) and 2.1(b)].
Subpart C--Downgrading and Declassification
2.14 Listing downgrading and declassification authorities [3.1(b)].
2.15 Declassification policy [3.1].
2.16 Downgrading and declassification markings.
2.17 Systematic review for declassification [3.3].
2.18 Mandatory declassification review [3.4].
2.19 Assistance to the Department of State [3.3(b)].
2.20 Freedom of Information/Privacy Act requests [3.4].
Subpart D--Safeguarding
2.21 General [4.1].
2.22 General restrictions on access [4.1].
2.23 Access by historical researchers and former Presidential
appointees [4.3].
2.24 Dissemination [4.1(d)].
2.25 Standards for security equipment [4.1(b) and 5.1(b)].
2.26 Accountability procedures [4.1(b)].
2.27 Storage [4.1(b)].
2.28 Transmittal [4.1(b)].
2.29 Telecommunications and computer transmissions.
2.30 Special access programs [1.2(a) and 4.2(a)].
2.31 Reproduction controls [4.1(b)].
2.32 Loss or possible compromise [4.1(b)].
2.33 Responsibilities of holders [4.1(b)].
2.34 Inspections [4.1(b)].
2.35 Security violations.
2.36 Disposition and destruction [4.1(b)].
2.37 National security decision directive 197.
Subpart E--Implementation and Review
2.38 Departmental management.
2.39 Bureau administration.
2.40 Emergency planning [4.1(b)].
2.41 Emergency authority [4.1(b)].
2.42 Security education [5.3(a)].
Subpart F--General Provisions
2.43 Definitions [6.1].
Authority: 31 U.S.C. 321; E.O. 12958, 60 FR 19825, 3 CFR, 1995
Comp., p. 333.
Source: 55 FR 1644, Jan. 17, 1990, unless otherwise noted.
[[Page 121]]
Subpart A--Original Classification
Sec. 2.1 Classification levels [1.1(a)].\1\
---------------------------------------------------------------------------
\1\ Related references are related to sections of Executive Order
12356, 47 FR 14874, April 6, 1982.
---------------------------------------------------------------------------
(a) National security information (hereinafter also referred to as
``classified information'') shall be classified at one of the following
three levels:
(1) Top Secret shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause exceptionally
grave damage to the national security.
(2) Secret shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause serious damage
to the national security.
(3) Confidential shall be applied to information, the unauthorized
disclosure of which reasonably could be expected to cause damage to the
national security.
(b) Limitations [1.1(b)]. Markings other than ``Top Secret,''
``Secret,'' and ``Confidential,'' shall not be used to identify national
security information. No other terms or phrases are to be used in
conjunction with these markings to identify national security
information, such as ``Secret/Sensitive'' or ``Agency Confidential''.
The terms ``Top Secret,'' ``Secret,'' and ``Confidential'' are not to be
used to identify non-classified Executive Branch information. The
administrative control legend, ``Limited Official Use'', is authorized
in Treasury Directive 71-02, ``Safeguarding Officially Limited
Information,'' which requires that information so marked is to be
handled, safeguarded and stored in a manner equivalent to national
security information classified Confidential.
(c) Reasonable Doubt [1.1(c)]. When there is reasonable doubt about
the need to classify information, the information shall be safeguarded
as if it were ``Confidential'' information in accordance with subpart D
of this regulation, pending a determination about its classification.
Upon a final determination of a need for classification, the information
that is classified shall be marked as provided in Sec. 2.7. When there
is reasonable doubt about the appropriate classification level, the
information shall be safeguarded at the higher level in accordance with
subpart D, pending a determination of its classification level. Upon a
final determination of its classification level, the information shall
be marked as provided in Sec. 2.7.
Sec. 2.2 Classification Authority.
Designations of original classification authority for national
security information are contained in Treasury Order (TO) 102-19 (or
successor order), which is published in the Federal Register. The
authority to classify inheres within the office and may be exercised by
a person acting in that capacity. There may be additional redelegations
of original classification authority made pursuant to TO 102-19 (or
successor order). Officials with original classification authority may
derivatively classify at the same classification level.
[63 FR 14357, Mar. 25, 1998]
Sec. 2.3 Listing of original classification authorities.
Delegations of original Top Secret, Secret and Confidential
classification authority shall be in writing and be reported annually to
the Departmental Director of Security, who shall maintain such
information on behalf of the Assistant Secretary (Management). These
delegations are to be limited to the minimum number absolutely required
for efficient administration. Periodic reviews and evaluations of such
delegations shall be made by the Departmental Director of Security to
ensure that the officials so designated have demonstrated a continuing
need to exercise such authority. If, after reviewing and evaluating the
information, the Departmental Director of Security determines that such
officials have not demonstrated a continuing need to exercise such
authority, the Departmental Director of Security shall recommend to the
Assistant Secretary (Management), as warranted, the reduction or
elimination of such authority. The Assistant Secretary (Management)
shall take appropriate action in consultation with the affected
official(s) and the Departmental Director of Security. Such action may
[[Page 122]]
include relinquishment of this authority where the Assistant Secretary
(Management) determines that a firm basis for retention does not exist.
Sec. 2.4 Record requirements.
The Departmental Director of Security shall maintain a listing by
name, position title and delegated classification level, of all
officials in the Departmental Offices who are authorized under this
regulation to originally classify information as Top Secret, Secret or
Confidential. Officials within the Departmental Offices with Top Secret
classification authority shall report in writing on TD F 71-01.14
(Report of Authorized Classifiers) to the Departmental Director of
Security, the names, position titles and authorized classification
levels of the officials designated by them in writing to have original
Secret or Confidential classification authority. The head of each bureau
shall maintain a similar listing of all officials in his or her bureau
authorized to apply original Secret and Confidential classification and
shall provide a copy of TD F 71-01.14, reflecting the list of officials
so authorized, to the Departmental Director of Security. These listings
shall be compiled and reported no less than annually each October 15th
as required by Treasury Directive 71-01, ``Agency Information Security
Program Data''.
Sec. 2.5 Classification categories.
(a) Classification in Context of Related Information [1.3(b)].
Certain information which would otherwise be unclassified may require
classification when combined or associated with other unclassified or
classified information. Such classification on an aggregate basis shall
be supported by a written explanation that, at a minimum, shall be
maintained with the file or referenced on the record copy of the
information.
(b) Unofficial Publication or Disclosure [1.3(d)]. Following an
inadvertent or unauthorized publication or disclosure of information
identical or similar to information that has been classified in
accordance with the Order or predecessor Orders, the agency of primary
interest shall determine the degree of damage to the national security,
the need for continued classification, and, in coordination with the
agency in which the disclosure occurred, what action must be taken to
prevent similar occurrences under procedures contained in Sec. 2.32.
Sec. 2.6 Duration of classification.
(a) Information Not Marked for Declassification [1.4]. Information
classified under predecessor orders that is not subject to automatic
declassification shall remain classified until reviewed for possible
declassification.
(b) Authority to Extend Automatic Declassification Determinations
[1.4(b)]. The authority to extend classification of information subject
to automatic declassification under any predecessor Executive Order to
the Order is limited to those officials who have classification
authority over the information and are designated in writing to have
original classification authority at the level of the information to
remain classified. Any decision to extend the classification on other
than a document-by-document basis shall be reported to the Assistant
Secretary (Management) who shall, in turn, report this fact to the
Director of the Information Security Oversight Office.
Sec. 2.7 Identification and markings [1.5(a), (b) and (c)].
The information security system requires that standard markings be
applied to classified information. Except in extraordinary circumstances
as provided in section 1.5(a) of the Order, or as indicated herein, the
marking of paper and electronically created documents shall not deviate
from the following prescribed formats. These markings shall also be
affixed to material other than paper and electronically created
documents, including file folders, film, tape, etc., or the originator
shall provide holders or recipients of the information with written
instructions for protecting the information.
(a) Classification Level. The markings ``Top Secret,'' ``Secret,''
and ``Confidential'' are used to indicate: information that requires
protection as classified information under the Order;
[[Page 123]]
the highest level of classification contained in a document; the
classification level of each page and, in abbreviated form, the
classification of each portion of a document.
(1) Overall Marking. The highest level of classification of
information in a document shall be marked in such a way as to
distinguish it clearly from the informational text. Markings shall
appear at the top and bottom of the outside of the front cover (if any),
on the title page (if any), on the first and last pages bearing text,
and on the outside of the back cover (if any).
(2) Page Marking. Each interior page of a classified document is to
be marked at the top and bottom, either according to the highest
classification of the content of the page, including the designation
``UNCLASSIFIED'' when it is applicable, or with the highest overall
classification of the document.
(3) Portion Marking. Only the Secretary of the Treasury may waive
the portion marking requirement for specified classes of documents or
information upon a written determination that:
(i) There will be minimal circulation of the specified documents or
information and minimal potential usage of the documents or information
as a source for derivative classification determinations; or
(ii) There is some other basis to conclude that the potential
benefits of portion marking are clearly outweighed by the increased
administrative burdens.
(b) Unless the portion marking requirement has been waived as
authorized, each portion of a document, including subjects and titles,
shall be marked by placing a parenthetical designation either
immediately preceding or following the text to which it applies. The
symbols, ``(TS)'' for Top Secret, ``(S)'' for Secret, ``(C)'' for
Confidential, and ``(U)'' for Unclassified shall be used for this
purpose. The symbol, ``(LOU)'' shall be used for Limited Official Use
information. If the application of parenthetical designations is not
practicable, the document shall contain a statement sufficient to
identify the information that is classified and the level of such
classification, as well as the information that is not classified. If
all portions of a document are classified at the same level, this fact
may be indicated by a statement to that effect, e.g. ``Entire Text is
Classified Confidential.'' If a subject or title requires
classification, an unclassified identifier may be applied to facilitate
reference.
(c) Classification Authority. If the original classifier is other
than the signer or approver of the document, his or her indentity shall
be shown at the bottom of the first and last pages as follows:
``CLASSIFIED BY (identification of original classification authority)''.
(d) Bureau and Office of Origin. If the identity of the originating
bureau or office is not apparent on the face of the document, it shall
be clearly indicated below the ``CLASSIFIED BY'' line.
(e) Downgrading and Declassification Instructions. Downgrading and,
as applicable, declassification instructions shall be shown as follows:
(1) For information to be declassified automatically on a specific
date:
Classified by__________________________________________________________
Office_________________________________________________________________
Declassify on (date)___________________________________________________
(2) For information to be declassified automatically upon the
occurrence of a specific event:
Classified by _________________________________________________________
Office _________________________________________________________________
Declassify on (description of event) ___________________________________
(3) For information not to be declassified automatically:
Classified by _________________________________________________________
Office _________________________________________________________________
Declassify on Origination Agency's Determination Required or ``OADR''
(4) For information to be downgraded automatically on a specific
date or upon occurrence of a specific event:
Classified by _________________________________________________________
Office _________________________________________________________________
Downgrade to ___________________________________________________________
on (date or description of event) ______________________________________
(f) Special Markings--(1) Transmittal Documents [1.5(c)]. A
transmittal document shall indicate on its first page and last page, if
any, the highest classification of any information transmitted by it. It
shall also include on the first and last pages the following or similar
instruction:
[[Page 124]]
(i) For an unclassified transmittal document:
Unclassified When Classified
Enclosure(s) Detached.
(ii) For a classified transmittal document:
Upon Removal of Attachment(s)
this Document is ______________________________________________________
(classification level of the transmittal document alone), or:
This Document is Classified ___________________________________________
with Unclassified Attachment(s).
(2) Restricted Data or Formerly Restricted Data [6.2(a)]. Restricted
Data or Formerly Restricted Data shall be marked in accordance with
regulations issued under the Atomic Energy Act of 1954, as amended.
Restricted Data is information dealing with the design, manufacture, or
utilization of atomic weapons, production of special nuclear material or
use of special nuclear material in the production of energy. Formerly
Restricted Data is classified information that has been removed from the
``restricted data'' category but still remains classified. It relates
primarily to the military utilization of atomic weapons.
(3) Intelligence Sources or Methods [1.5(c)]. Documents that contain
information relating to intelligence sources or methods shall include
the following marking unless otherwise prescribed by the Director of
Central Intelligence: ``WARNING NOTICE--INTELLIGENCE SOURCES OR METHODS
INVOLVED'' To avoid confusion as to the extent of dissemination and use
restrictions governing the information involved, this marking may not be
used in conjunction with special access or sensitive compartmented
information controls.
(4) Foreign Government Information (FGI) [1.5(c)]. Documents that
contain FGI shall include either the marking ``FOREIGN GOVERNMENT
INFORMATION,'' or a marking that otherwise indicates that the
information is foreign government information. If the information is
foreign government information that must be concealed, given the
relationship or understanding with the foreign government providing the
information, the marking shall not be used and the document shall be
marked as if it were wholly of United States origin. However, such a
marking must be supported by a written explanation that, at a minimum,
shall be maintained with the file or referenced on the original or
record copy of the document or information.
(5) National Security Information [4.1(c)]. Classified information
furnished outside the Executive Branch shall show the following marking:
NATIONAL SECURITY INFORMATION
Unauthorized Disclosure Subject to
Administrative and Criminal Sanctions
(6) Automated Data Processing (ADP) and Computer Output [1.5(c)].
(i) Documents that are generated via ADP or as computer output may be
marked automatically by systems software. If automatic marking is not
practicable, such documents must be marked manually.
(ii) Removable information storage media, however, will bear
external labels indicating the security classification of the
information and associated security markings, as applicable, such as
handling caveats and dissemination controls. Examples of such media
include magnetic tape reels, cartridges, and cassettes; removable disks,
disk cartridges, disk packs, and diskettes, including ``floppy'' or
flexible disks; paper tape reels; and magnetic and punched cards. Two
labels may be required on each medium: a color coded security
classification label, i.e., orange Standard Form 706 (Top Secret label),
red SF 707 (Secret label), blue SF 708 (Confidential label), purple SF
709 (Classified label), green SF 710 (Unclassified label); and a white
SF 711 (Data Descriptor label). National stock numbers of the labels,
which are available through normal Federal Supply channels, are as
follows: SF 706, 7540-01-207-5536; SF 707, 7450-01-207-5537; SF 708,
7450-01-207-5538; SF 709, 7540-01-207-5540; SF 710, 7540-01-207-5539 and
SF 711, 7540-01-207-5541. Treasury Directive 71-02 provides for the use
of a green ``Officially Limited Information'' label, TD F 71-05.2, to
identify information so marked.
(iii) In a mixed environment in which classified and unclassified
information in processed or stored, the ``Unclassified'' label must be
used to identify the media containing unclassified information. In
environments in which only
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unclassified information is processed or stored, the use of the
``Unclassified'' label is not required. Unclassified media, however,
that are on loan from (and must be returned to) vendors do not require
the ``Unclassified'' label, but each requires a Data Descriptor label
with the words, ``Unclassified Vendor Medium'' entered on it.
(iv) Each medium shall be appropriately affixed with a
classification label and, as applicable, with a Data Descriptor label at
the earliest practicable time as soon as the proper security
classification or control has been established. Labels shall be
conspicuously placed on media in a manner that will not adversely affect
operation of the equipment in which the media is used. Once applied, the
label is not to be removed. A label to identify a higher level of
classification may, however, be applied on top of a lower classification
level in the event that the content of the media changes, e.g., from
Confidential to Secret. A lower classification label may not be applied
to media already bearing a higher classification label. Personnel shall
be responsible for appropriately labeling and controlling ADP and
computer storage media within their possession.
(g) Electronically Transmitted Information (Messages) [1.5(c)].
Classified information that is transmitted electronically shall be
marked as follows:
(1) The highest level of classification shall appear before the
first line of text;
(2) A ``CLASSIFIED BY'' line is not required;
(3) The duration of classification shall appear as follows:
(i) For information to be declassified automatically on a specific
date: ``DECL: (date)'';
(ii) For information to be declassified upon occurrence of a
specific event: ``DECL: (description of event)'';
(iii) For information not to be automatically declassified which
requires the originating agency's determination (see also
Sec. 2.7(e)(3)): ``DECL: OADR'';
(iv) For information to be automatically downgraded: ``DOWNGRADE TO
(classification level to which the information is to be downgraded) ON
(date or description of event on which downgrading is to occur)''.
(4) Portion marking shall be as prescribed in Sec. 2.7(a)(3);
(5) Specially designated markings as prescribed in Sec. 2.7(f) (2),
(3), and (4) shall appear after the marking for the highest level of
classification. These include:
(i) Restricted Data or Formerly Restricted Data;
(ii) Information concerning intelligence sources or methods:
``WNINTEL,'' unless otherwise prescribed by the Director of Central
Intelligence; and
(iii) Foreign Government Information (FGI).
(6) Paper copies of electronically transmitted messages shall be
marked as provided in Sec. 2.7(a) (1), (2), and (3).
(h) Changes in Classification Markings [4.1(b)]. When a change is
made in the duration of classified information, all holders of record
shall be promptly notified. If practicable, holders of record shall also
be notified of a change in the level of classification. Holders shall
alter the markings on their copy of the information to conform to the
change, citing the authority for it. If the remarking of large
quantities of information is unduly burdensome, the holder may attach a
change of classification notice to the storage unit in lieu of the
marking action otherwise required. Items withdrawn from the collection
for purposes other than transfer for storage shall be marked promptly in
accordance with the change notice.
Sec. 2.8 Limitations on classification [1.6(c)].
(a) Before reclassifying information as provided in section 1.6(c)
of the Order, authorized officials, who must have original
classification authority and jurisdiction over the information involved,
shall consider the following factors which shall be addressed in a
report to the Assistant Secretary (Management) who shall in turn forward
a report to the Director of the Information Security Oversight Office:
(1) The elapsed time following disclosure;
(2) The nature and extent of disclosure;
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(3) The ability to bring the fact of reclassification to the
attention of persons to whom the information was disclosed;
(4) The ability to prevent further disclosure; and
(5) The ability to retrieve the information voluntarily from persons
not authorized access in its reclassified state.
(b) Information may be classified or reclassified after it has been
requested under the Freedom of Information Act (5 U.S.C. 552), the
Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory declassification
review provisions of the Order if such classification meets the
requirements of the Order and is accomplished personally and on a
document-by-document basis by the Secretary of the Treasury, the Deputy
Secretary, the Assistant Secretary (Management) or an official with
original Top Secret classification authority. Such reclassification
actions shall be reported in writing to the Departmental Director of
Security.
(c) In no case may information be classified or reclassified in
order to conceal violations of law, inefficiency, or administrative
error; to prevent embarrassment to a person, organization, or agency; to
restrain competition; or to prevent or delay the release of information
that does not require protection in the interest of national security.
Subpart B--Derivative Classification
Sec. 2.9 Derivative Classification Authority.
Designations of derivative classification authority for national
security information are contained in Treasury Order 102-19 (or
successor order). The authority to derivatively classify inheres within
the office and may be exercised by a person acting in that capacity.
There may be additional redelegations of derivative classification
authority made pursuant to TO 102-19 (or successor order). Officials
identified in Treasury Order 102-19 (or successor order) may also
administratively control and decontrol sensitive but unclassified
information using the legend ``Limited Official Use'' and may redelegate
their authority to control and decontrol. Such redelegations shall be in
writing on TD F 71-01.20 ``Designation of Controlling/Decontrolling
Officials'' (or successor form).
[63 FR 14357, Mar. 25, 1998]
Sec. 2.10 Listing derivative classification authorities.
Delegations of derivative classification authority to officials not
otherwise identified in Sec. 2.9, shall be in writing and reported
annually each October 15th to the Departmental Director of Security on
TD F 71-01.18 (Report of Authorized Derivative Classifiers). Such
delegations shall be limited to the minimum number absolutely required
for efficient administration. Periodic reviews and evaluations of such
delegations shall be made by the Departmental Director of Security to
ensure that officials so designated have demonstrated a continuing need
to exercise such authority. If after reviewing and evaluating the
information the Departmental Director of Security determines that such
officials have not demonstrated a continuing need to exercise such
authority, the Departmental Director of Security shall recommend to the
Assistant Secretary (Management), as warranted, the reduction or
elimination of such authority. The Assistant Secretary (Management)
shall take appropriate action in consultation with the affected
official(s) and the Departmental Director of Security. Such action may
include relinquishment of this authority where the Assistant Secretary
(Management) determines that a firm basis for retention does not exist.
Sec. 2.11 Use of derivative classification [2.1].
The application of derivative classification markings is a
responsibility of those who incorporate, paraphrase, restate, or
generate in new form information that is already classified, and of
those who apply markings in accordance with instructions from an
authorized original classifier or in accordance with an approved
classification guide. If an individual who applies derivative
classification markings believes that the paraphrasing, restating or
summarizing of classified information has
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changed the level of or removed the basis for classification, that
person must consult an appropriate official of the originating agency or
office of origin who has the authority to upgrade, downgrade or
declassify the information for a final determination. A sample marking
of derivatively classified documents is set forth in Sec. 2.13.
Sec. 2.12 Classification guides.
(a) General [2.2(a)]. A classification guide is a reference manual
which assists document drafters and document classifiers in determining
what types or categories of material have already been classified. The
classification guide shall, at a minimum:
(1) Identify and categorize the elements of information to be
protected;
(2) State which classification level applies to each element or
category of information; and
(3) Prescribe declassification instructions for each element or
category of information in terms of:
(i) A period of time,
(ii) The occurrence of an event, or
(iii) A notation that the information shall not be declassified
automatically without the approval of the originating agency i.e.,
``OADR''.
(b) Review and Record Requirements [2.2(a)]. (1) Each classification
guide shall be kept current and shall be reviewed at least once every
two years and updated as necessary. Each office within the Departmental
Offices and the respective offices of each Treasury bureau possessing
original classification authority for national security information
shall maintain a list of all classification guides in current use by
them. A copy of each such classification guide in current use shall be
furnished to the Departmental Director of Security who shall maintain
them on behalf of the Assistant Secretary (Management).
(2) Each office and bureau that prepares and maintains a
classification guide shall also maintain a record of individuals
authorized to apply derivative classification markings in accordance
with a classification guide. This record shall be maintained on TD F 71-
01.18 (Report of Authorized Derivative Classifiers) which shall be
reported annually each October 15th to the Departmental Director of
Security.
(c) Waivers [2.2(c)]. Any authorized official desiring a waiver of
the requirement to issue a classification guide shall submit in writing
to the Assistant Secretary (Management) a request for approval of such a
waiver. Any request for a waiver shall contain, at a minimum, an
evaluation of the following factors:
(1) The ability to segregate and describe the elements of
information;
(2) The practicality of producing or disseminating the guide because
of the nature of the information;
(3) The anticipated usage of the guide as a basis for derivative
classification; and
(4) The availability of alternative sources for derivatively
classifying the information in a uniform manner.
Sec. 2.13 Derivative identification and markings [1.5(c) and 2.1(b)].
Information classified derivatively on the basis of source documents
or classification guides shall bear all markings prescribed in Sec. 2.7
(a) through (f), as are applicable. Information for these markings shall
be taken from the source document or instructions in the appropriate
classification guide.
(a) Classification Authority. The authority for classification shall
be shown as follows:
Derivatively Classified by ____________________________________________
Office _________________________________________________________________
Derived from____________________________________________________________
Declassify on__________________________________________________________
If a document is classified on the basis of more than one source
document or classification guide, the authority for classification shall
be shown on the ``DERIVED FROM'' line as follows: ``MULTIPLE CLASSIFIED
SOURCES''. In these cases, the derivative classifier must maintain the
identification of each source with the file or record copy of the
derivatively classified document. A document derivatively classified on
the basis of a source document that is marked ``MULTIPLE CLASSIFIED
SOURCES'' shall cite the source document on its ``DERIVED FROM'' line
rather than the term: ``MULTIPLE CLASSIFIED
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SOURCES''. Preparers of such documentation shall ensure that the
identification of the derivative classifier is indicated. Use of the
term ``MULTIPLE CLASSIFIED SOURCES,'' is not to be a substitute for the
identity of the derivative classification authority.
(b) Downgrading and Declassification Instructions. Dates or events
for automatic downgrading or declassification shall be carried forward
from the source document. This includes the notation ``ORIGINATING
AGENCY'S DETERMINATION REQUIRED'' to indicate that the document is not
to be downgraded or declassified automatically, or instructions as
directed by a classification guide, which shall be shown on a
``DOWNGRADE TO'' or ``DECLASSIFY ON'' line as follows:
DOWNGRADE TO___________________________________________________________
ON (date, description of event, or OADR) or,
DECLASSIFY ON (date, description of event, or OADR)
Subpart C--Downgrading and Declassification
Sec. 2.14 Listing downgrading and declassification authorities 3.1(b)].
Downgrading and declassification authority may be exercised by the
official authorizing the original classification, if that official is
still serving in the same position; a successor in that capacity; a
supervisory official of either; or officials delegated such authority in
writing by the Secretary of the Treasury or the Assistant Secretary
(Management). Such officials may not downgrade or declassify information
which is classified at a level exceeding their own designated
classification authority. A listing of officials delegated such
authority, in writing, shall be identified on TD F 71-01.11 (Report of
Authorized Downgrading and Declassification Officials) and reported
annually each October 15th to the Departmental Director of Security who
shall maintain them on behalf of the Assistant Secretary (Management).
Current listings of officials so designated shall be maintained by
Treasury bureaus and offices within the Departmental Offices.
[55 FR 1644, Jan. 17, 1990; 55 FR 13134, Apr. 9, 1990]
Sec. 2.15 Declassification policy [3.1].
In making determinations under section 3.1(a) of the Order,
officials shall respect the intent of the Order to protect foreign
government information and confidential foreign sources.
Sec. 2.16 Downgrading and declassification markings.
Whenever a change is made in the original classification or in the
dates of downgrading or declassification of any classified information,
it shall be promptly and conspicuously marked to indicate the change,
the authority for the action, the date of the action, and the identity
of the person taking the action. Earlier classification markings shall
be cancelled or otherwise obliterated when practicable. See also
Sec. 2.7(h).
Sec. 2.17 Systematic review for declassification [3.3].
(a) Permanent Records. Systematic review is applicable only to those
classified records and presidential papers or records that the Archivist
of the United States, acting under the Federal Records Act, has
determined to be of sufficient historical or other value to warrant
permanent retention.
(b) Non-Permanent Classified Records. Non-permanent classified
records shall be disposed of in accordance with schedules approved by
the Administrator of General Services under the Records Disposal Act.
These schedules shall provide for the continued retention of records
subject to an ongoing mandatory declassification review request.
(c) Systematic Declassification Review Guidelines [3.3(a)]. As
appropriate, guidelines for systematic declassification review shall be
issued by the Assistant Secretary (Management) in consultation with the
Archivist of the United States, the Director of the Information Security
Oversight Office and Department officials, to assist the Archivist in
the conduct of systematic reviews. Such guidelines shall be reviewed and
updated at least every five years unless earlier review is requested by
the Archivist.
(d) Foreign Government Systematic Declassification Review Guidelines
[3.3(a)]. As appropriate, guidelines for systematic declassification
review of foreign
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government information shall be issued by the Assistant Secretary
(Management) in consultation with the Archivist of the United States,
the Director of the Information Security Oversight Office, Department
officials and other agencies having declassification authority over the
information. These guidelines shall be reviewed and updated every five
years unless earlier review is requested by the Archivist.
(e) Special Procedures. The Department shall be bound by the special
procedures for systematic review of classified cryptologic records and
classified records pertaining to intelligence activities (including
special activities), or intelligence sources or methods issued by the
Secretary of Defense and the Director of Central Intelligence,
respectively.
Sec. 2.18 Mandatory declassification review [3.4].
(a) Except as provided by section 3.4 (b) of the Order, all
information classified by the Department under the Order or any
predecessor Executive Order shall be subject to declassification review
by the Department, if:
(1) The request is made by a United States citizen or permanent
resident alien, a Federal agency, or a state or local government;
(2) The request describes the document or material containing the
information with sufficient specificity to enable the Department to
locate it with a reasonable amount of effort; and
(3) The requester provides substantial proof as to his or her United
States citizenship or status as a permanent resident alien, e.g., a copy
of a birth certificate, a certificate of naturalization, official
passport or some other means of identity which sufficiently describes
the requester's status. A permanent resident alien is any individual,
who is not a citizen or national of the United States, who has been
lawfully accorded the privilege of residing permanently in the United
States as an immigrant in accordance with the immigration laws, such
status not having changed. Permanent means a relationship of continuing
or lasting nature, as distinguished from temporary, but a relationship
may be permanent even though it is one that may be dissolved eventually
at the instance either of the United States or of the individual, in
accordance with law.
(b) Processing--(1) Initial Requests for Classified Records
Originated by the Department. Requests for mandatory declassification
review shall be directed to the Departmental Office of Security, 1500
Pennsylvania Avenue, NW., Washington, DC 20220. Upon receipt of each
request for declassification, pursuant to section 3.4 of the Order, the
following procedures shall apply:
(i) The Departmental Office of Security shall acknowledge the
receipt of the request in writing.
(ii) A valid mandatory declassification review request need not
identify the requested information by date or title of the responsive
records, but must be of sufficient particularity to allow Treasury
personnel to locate the records containing the information sought with a
reasonable amount of effort. Whenever a request does not reasonably
describe the information sought, the requester shall be notified by the
Departmental Office of Security that unless additional information is
provided or the scope of the request is narrowed, no further action will
be undertaken.
(iii) The Departmental Office of Security shall determine the
appropriate office or bureau to take action on the request and shall
forward the request to that office or bureau.
(iv) In responding to mandatory declassification review requests,
the appropriate reviewing officials shall make a prompt declassification
determination. The Departmental Office of Security shall notify the
requester if additional time is needed to process the request. Reviewing
officials shall also identify the amount of search and/or review time
required to process the request. The Department shall make a final
determination within one year from the date of receipt except in unusual
circumstances. When information cannot be declassified in its entirety,
reasonable efforts, consistent with other applicable laws, will be made
to release those declassified portions of the requested information
which constitute a coherent segment. Upon the denial or partial denial
of an
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initial request, the Departmental Office of Security shall also notify
the requester of the right of an administrative appeal which must be
filed with the Assistant Secretary (Management) within 60 days of
receipt of the denial.
(v) When the Department receives a mandatory declassification review
request for records in its possession that were originated by another
agency, the Departmental Office of Security shall forward the request to
that agency. The Departmental Office of Security shall include a copy of
the records requested together with the Department's recommendations for
action. Upon receipt, the originating agency shall process the request
in accordance with the Directive 32 CFR 2001.32(a)(2)(i). The
originating agency shall also be requested to communicate its
declassification determination to Treasury.
(vi) When another agency forwards to the Department a request for
information in that agency's custody that has been classified by
Treasury, the Departmental Office of Security shall:
(A) Advise the other agency as to whether it can notify the
requester of the referral;
(B) Review the classified information in coordination with other
agencies that have a direct interest in the subject matter; and
(C) Respond to the requester in accordance with the procedures in
Sec. 2.18(b)(1)(iv). If requested, Treasury's determination shall be
communicated to the referring agency.
(vii) Appeals of denials of a request for declassification shall be
referred to the Assistant Secretary (Management) who shall normally make
a determination within 30 working days following the receipt of an
appeal. If additional time is required to make a determination, the
Assistant Secretary (Management) shall notify the requester of the
additional time needed and provide the requester with the reason for the
extension. The Assistant Secretary (Management) shall notify the
requester in writing of the final determination and, as applicable, the
reasons for any denial.
(viii) Except as provided in this paragraph, the Department shall
process mandatory declassification review requests for classified
records containing foreign government information in accordance with
Sec. 2.18(a). The agency that initially received or classified the
foreign government information shall be responsible for making a
declassification determination after consultation with concerned
agencies. If upon receipt of the request, the Department determines that
Treasury is not the agency that received or classified the foreign
government information, it shall refer the request to the appropriate
agency for action. Consultation with the foreign originator through
appropriate channels may be necessary prior to final action on the
request.
(ix) Mandatory declassification review requests for cryptologic
information and/or information concerning intelligence activities
(including special activities) or intelligence sources or methods shall
be processed solely in accordance with special procedures issued by the
Secretary of Defense and the Director of Central Intelligence,
respectively.
(x) The fees to be charged for mandatory declassification review
requests shall be for search and/or review and duplication. The fee
charges for services of Treasury personnel involved in locating and/or
reviewing records shall be at the rate of a GS-10, Step 1, for each hour
or fraction thereof, except that no charge shall be imposed for search
and/or review consuming less than one hour.
(A) Photocopies per page up to 8\1/2\" by 14" shall be charged at
the rate of 10 cents each except that no charge will be imposed for
reproducing ten (10) pages or less when search and/or review time
requires less than one hour.
(B) When it is estimated that the costs associated with the
mandatory declassification review request will exceed $100.00, the
Departmental Office of Security shall notify the requester of the likely
cost and obtain satisfactory written assurance of full payment or may
require the requester to make an advance payment of the entire fee
before continuing to process the request. The Department reserves the
right to request prepayment after a mandatory declassification review
request is processed and before documents are released. In the event the
requester does
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not agree to pay the actual charges, he or she shall advise how to
proceed with the mandatory declassification review request. Failure of a
requester to pay charges after billing will result in future requests
not being honored.
(C) In order for a requester's initial request to be processed it
shall be accompanied by a statement that he or she is agreeable to
paying fees for search and/or review and copying. In the event the
initial request does not include this statement, processing of the
request will be held in abeyance until such time as the required
statement is received. Failure to provide a response within a reasonable
amount of time will serve as the basis for administratively terminating
the mandatory declassification review request.
(D) Payment of fees shall be made by check or money order payable to
the Treasurer of the United States. Fees levied by the Department of the
Treasury for mandatory declassification review requests are separate and
distinct from any other fees which might be imposed by a Presidential
Library, the National Archives and Records Administration or another
agency or department.
Sec. 2.19 Assistance to the Department of State [3.3(b)].
The Secretary of the Treasury shall assist the Department of State
in its preparation of the ``Foreign Relations of the United States''
series by facilitating access to appropriate classified material in
Treasury custody and by expediting declassification review of documents
proposed for inclusion in the series.
Sec. 2.20 Freedom of Information/Privacy Act requests [3.4].
The Department of the Treasury shall process requests for records
containing classified national security information that are submitted
under the provisions of the Freedom of Information Act, as amended, or
the Privacy Act of 1974, as amended, in accordance with the provisions
of those Acts.
Subpart D--Safeguarding
Sec. 2.21 General [4.1].
Information classified pursuant to this Order or predecessor Orders
shall be afforded a level of protection against unauthorized disclosure
commensurate with its level of classification.
Sec. 2.22 General restrictions on access [4.1].
(a) Determination of Need-To-Know. Classified information shall be
made available to a person only when the possessor of the classified
information establishes in each instance, except as provided in section
4.3 of the Order, that access is essential to the accomplishment of
official United States Government duties or contractual obligations.
(b) Determination of Trustworthiness. A person is eligible for
access to classified information only after a showing of trustworthiness
as determined by the Secretary of the Treasury based upon appropriate
investigations in accordance with applicable standards and criteria.
(c) Classified Information Nondisclosure Agreement. Standard Form
312 (Classified Information Nondisclosure Agreement) or the prior SF
189, bearing the same title, are nondisclosure agreements between the
United States and an individual. The execution of either the SF 312 or
SF 189 agreement by an individual is necessary before the United States
Government may grant the individual access to classified information.
Bureaus and the Departmental Offices must retain executed copies of the
SF 312 or prior SF 189 in file systems from which the agreements can be
expeditiously retrieved in the event the United States must seek their
enforcement. Copies or legally enforceable facsimiles of the SF 312 or
SF 189 must be retained for 50 years following their date of execution.
The national stock number for the SF 312 is 7540-01-280-5499.
[[Page 132]]
Sec. 2.23 Access by historical researchers and former presidential appointees [4.3].
(a) Access to classified information may be granted only as is
essential to the accomplishment of authorized and lawful United States
Government purposes. This requirement may be waived, however, for
persons who:
(1) Are engaged in historical research projects, or
(2) Previously have occupied policymaking positions to which they
were appointed by the President.
(b) Access to classified information may be granted to historical
researchers and to former Presidential appointees upon a determination
of trustworthiness; a written determination that such access is
consistent with the interests of national security; the requestor's
written agreement to safeguard classified information; and the
requestor's written consent to have his or her notes and manuscripts
reviewed to ensure that no classified information is contained therein.
The conferring of historial researcher status does not include
authorization to release foreign government information or other
agencies' classified information per Sec. 2.24 of this part. By the
terms of section 4.3(b)(3) of the Order, former Presidential appointees
not engaged in historical research may only be granted access to
classified documents which they ``originated, reviewed, signed or
received while serving as a Presidential appointee.'' Coordination shall
be made with the Departmental Director of Security with respect to the
required written agreements to be signed by the Department and such
historical researchers or former Presidential appointees, as a condition
of such access and to ensure the safeguarding of classified information.
(c) If the access requested by historical researchers and former
Presidential appointees requires the rendering of services for which
fair and equitable fees may be charged pursuant to 31 U.S.C. 9701, the
requestor shall be so notified and the fees may be imposed. Treasury's
fee schedule identified in Sec. 2.18(b)(1)(x), applicable to mandatory
declassification review, shall also apply to fees charged for services
provided to historical researchers and former Presidential appointees
for search and/or review and copying.
Sec. 2.24 Dissemination [4.1(d)].
Except as otherwise provided by section 102 of the National Security
Act of 1947, 61 Stat. 495, 50 U.S.C. 403, classified information
originating in another agency may not be disseminated outside the
Department without the consent of the originating agency.
Sec. 2.25 Standards for security equipment [4.1(b) and 5.1(b)].
The Administrator of General Services issues (in coordination with
agencies originating classified information), establishes and publishes
uniform standards, specifications, and supply schedules for security
equipment designed to provide for secure storage and to destroy
classified information. Treasury bureaus and the Departmental Offices
may establish more stringent standards for their own use. Whenever new
security equipment is procured, it shall be in conformance with the
standards and specifications referred to above and shall, to the maximum
extent practicable, be of the type available through the Federal Supply
System.
Sec. 2.26 Accountability procedures [4.1(b)].
(a) Top Secret Control Officers. Each Treasury bureau and the
Departmental Offices shall designate a primary and alternate Top Secret
Control Officer. Within the Departmental Offices, the Top Secret Control
Officer function will be established in the Office of the Executive
Secretary for collateral Top Secret information and in the Office of the
Special Assistant to the Secretary (National Security) with respect to
sensitive compartmented information. The term ``collateral'' refers to
national security information classified Confidential, Secret, or Top
Secret under the provisions of Executive Order 12356 or prior Orders,
for which special intelligence community systems of compartmentation
(such as sensitive compartmented information) or special access programs
are not formally established. Top Secret Control Officers so designated
must have a Top Secret security clearance and shall:
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(1) Initially receive all Top Secret information entering their
respective bureau, including the Departmental Offices. Any Top Secret
information received by a Treasury bureau or Departmental Offices
employee shall be immediately hand carried to the designated Top Secret
Control Officer for proper accountability.
(2) Maintain current accountability records of Top Secret
information received within their bureau or office.
(3) Ensure that Top Secret information is properly stored and that
Top Secret information under their control is personally destroyed, when
required. Top Secret information must be destroyed in the presence of an
appropriately cleared official who shall actually witness such
destruction. Accordingly, the use of burnbags to store Top Secret
information, pending final destruction at a later date, is not
authorized.
(4) Ensure that prohibitions against reproduction of Top Secret
information are strictly followed.
(5) Conduct annual physical inventories of Top Secret information.
An inventory shall be conducted in the presence of an individual with an
appropriate security clearance. The inventory shall be completed
annually and signed by the Top Secret Control Officer and the witnessing
individual.
(6) Ensure that Top Secret documents are downgraded, declassified,
retired or destroyed as required by regulations or other markings.
(7) Attach a TD F 71-01.7 (Top Secret Document Record) to the first
page or cover of each copy of Top Secret information. The Top Secret
Document Record shall be completed by the Top Secret Control Officer and
shall serve as a permanent record.
(8) Ensure that all persons having access to Top Secret information
sign the Top Secret Document Record. This also includes persons to whom
oral disclosure of the contents is made.
(9) Maintain receipts concerning the transfer and destruction of Top
Secret information. Record all such actions on the Top Secret Document
Record which shall be retained for a minimum of three years.
(10) As received, number in sequence each Top Secret document in a
calendar year series (e.g. TS 89-001). This number shall be posted on
the face of the document and on all forms required for control of Top
Secret information.
(11) Attach a properly executed TD F 71-01.5 (Classified Document
Record of Transmittal) when a Top Secret document is transmitted
internally or externally.
(12) Verify, prior to releasing Top Secret information, that the
recipient has both a security clearance and is authorized access to such
information.
(13) Report, in writing, all Top Secret documents unaccounted for to
the Assistant Secretary (Management) who shall take appropriate action
in conjunction with the Departmental Director of Security.
(14) Assure that no individual within his or her office or bureau
transmits Top Secret information to another individual or office without
the knowledge and consent of the Top Secret Control Officer.
(15) Ensure upon receipt that a Standard Form 703 (Top Secret Cover
Sheet) is affixed to such information.
(16) Notify office and/or bureau employees annually in writing of
the designated control point for all incoming and outgoing Top Secret
information.
(17) Be notified as to the transmission, per Sec. 2.28(b), whenever
Top Secret information is sent outside of a Treasury bureau or office
within the Departmental Offices.
(b) Top Secret Control Officer Listings. In order for the
Departmental Director of Security to maintain a current listing of Top
Secret Control Officers within the Department, each Treasury bureau and
the Departmental Offices shall annually report each October 15th in
writing to the Departmental Office of Security, the identities of the
office(s) and names of the officials designated as their primary and
alternate Top Secret Control Officers. Any changes in these designations
shall be reported to the Departmental Director of Security within thirty
days.
(c) Top Secret Document Record. Upon receipt in the Department a
green, color coded, TD F 71-01.7 (Top Secret Document Record) shall be
attached by the Top Secret Control Officer to the first page or cover of
the original and each copy of Top Secret information.
[[Page 134]]
The Top Secret Document Record shall remain attached to the Top Secret
information until it is either transferred to another United States
Government agency, downgraded, declassified or destroyed. The Top Secret
Document Record, which shall initially be completed by the Top Secret
Control Officer, shall identify the Top Secret information attached, and
shall serve as a permanent record of the information. All persons,
including stenographic and clerical personnel, having access to the
information attached to the Top Secret Document Record must list their
name and the date on the TD F 71-01.7 prior to accepting responsibility
for its custody. The TD F 71-01.7 shall also indicate those individuals
to whom only oral disclosure of the contents is made. Whenever any Top
Secret information is transferred to another United States Government
agency, downgraded, declassified or destroyed, the Top Secret Control
Officer shall record the action on the Top Secret Document Record and
retain it for a minimum or three years after which time it may be
destroyed. In order to maintain the integrity of the color coding
process the photocopying and use of non-color coded Top Secret Document
Record forms is prohibited.
(d) Classified Document Record of Transmittal. TD F 71-01.5
(Classified Document Record of Transmittal) shall be the exclusive
classified document accountability record for use within the Department
of the Treasury. No other logs or records shall be required except for
the use of TD F 71-01.7 which is applicable to Top Secret information.
TD F 71-01.5 shall be used for single or multiple document receipting
and for internal and external routing. The inclusion of classified
information on TD F 71-01.5 is to be avoided. In the event the subject
title is classified, a recognizable short title shall be used, e.g.,
first letter of each word in the subject title. Several items may be
transmitted to the same addressee with one TD F 71-01.5. TD F's 71-01.5
shall be maintained for a three year period after which the form may be
destroyed. No record of the actual destruction of the TD F 71-01.5 is
necessary.
(1) Top Secret Information. Top Secret information shall be subject
to a continuous receipt system regardless of how brief the period of
custody. TD F 71-01.5 shall be used for this purpose. Top Secret
accountability records shall be maintained by Top Secret Control
Officers separately from the accountability records of other classified
information.
(2) Secret Information. Receipt on TD F 71-01.5 shall be required
for transmission of Secret information between bureaus, offices and
separate agencies. Responsible office heads shall determine
administrative procedures required for the internal control within their
respective offices. The volume of classified information handled and
personnel resources available must be considered in determining the
level of adequate security measures while at the same time maintaining
operational efficiency.
(3) Confidential and Limited Official Use Information. Receipts for
Confidential and Limited Official Use information shall not be required
unless the originator indicates that receipting is necessary.
[55 FR 1644, Jan. 17, 1990; 55 FR 13134, Apr. 9, 1990]
Sec. 2.27 Storage [4.1(b)].
Classified information shall be stored only in facilities or under
conditions designed to prevent unauthorized persons from gaining access
to it.
(a) Minimum Requirements for Physical Barriers--(1) Top Secret. Top
Secret information shall be stored in a GSA-approved security container
with an approved, built-in, three-position, dial-type, changeable,
combination lock; in a vault protected by an alarm system and response
force; or in other types of storage facilities that meet the standards
for Top Secret information established under the provisions of
Sec. 2.25. Top Secret information stored outside the United States must
be in a facility afforded diplomatic status. One or more of the
following supplementary controls is required:
(i) The area that houses the security container or vault shall be
subject to the continuous protection of U.S. guard or duty personnel;
(ii) U.S. Guard or duty personnel shall inspect the security
container or vault at least once every two hours; or
[[Page 135]]
(iii) The security container or vault shall be controlled by an
alarm system to which a force will respond in person within 15 minutes.
Within the United States, the designated security officer in each
Treasury bureau and the Department Offices shall prescribe those
supplementary controls deemed necessary to restrict unauthorized access
to areas in which such information is stored. Any vault used for the
storage of sensitive compartmented information shall be configured to
the specifications of the Director of Central Intelligence. Prior to an
office or bureau operating such a vault, formal written certification
for its use must first be obtained from the Special Assistant to the
Secretary (National Security) as the senior Treasury official of the
Intelligence Community.
(2) Secret and Confidential. Secret and Confidential information
shall be stored in a manner and under the conditions prescribed for Top
Secret information, or in a container, vault, or alarmed area that meets
the standards for Secret or Confidential information established under
the provisions of Sec. 2.25. Secret and Confidential information may
also be stored in a safe-type filing cabinet having a built-in, three-
position, dial-type, changeable, combination lock, and may continue to
be stored in a steel filing cabinet equipped with a steel lock-bar
secured by a GSA-approved three-position, dial-type, changeable,
combination padlock. The modification, however, of steel filing cabinets
to barlock-type as storage equipment for classified information and
material is prohibited and efforts are to be made to selectively phase
out the use of such barlock cabinets for storage of Secret information.
Exceptions may be authorized only by the Departmental Director of
Security upon written request from the designated bureau security
officer. The designated security officer in each Treasury bureau and the
Departmental Offices shall prescribe those supplementary controls deemed
necessary to restrict unauthorized access to areas in which such
information is stored. Access to bulky Secret and Confidential material
in weapons storage areas, strong rooms, evidence vaults, closed areas or
similar facilities shall be controlled in accordance with requirements
approved by the Department. At a minimum, such requirements shall
prescribe the use of GSA-approved, key-operated, high-security padlocks.
For Secret and Confidential information stored outside the United
States, it shall be stored in the manner authorized for Top Secret, in a
GSA-approved safe file, or in a barlick cabinet equipped with a
security-approved combination padlock if the cabinet is located in a
security-approved vault and/or in a restricted area to which access is
controlled by United States citizen personnel on a 24-hour basis.
(b) Combinations--(1) Equipment in Service. Combinations to dial-
type, changeable, combination locks shall be changed only by persons
having an appropriate security clearance, and shall be changed,
(i) Whenever such equipment is placed in use;
(ii) Whenever a person knowing the combination no longer requires
access to it;
(iii) Whenever a combination has been subjected to possible
compromise;
(iv) Whenever the equipment is taken out of service: or
(v) At least once each year.
Knowledge of combinations shall be limited to the minimum number of
persons necessary for operating purposes. Records of combinations shall
be classified no lower than the highest level of classified information
that is protected by the combination lock. When securing a combination
lock, the dial must be turned at least four (4) complete times in the
same direction after closing. Defects in or malfunctioning of storage
equipment protecting classified national security or officially limited
information must be reported immediately to the designated office or
bureau security official for appropriate action.
(2) Equipment Out of Service. When security equipment, used for the
storage of classified national security or officially limited
information, is taken out of service, it shall be physically inspected
to ensure that no classified information or officialy limited
information remains therein. Built-in, three-position, dial-type,
changeable, combination locks shall be reset to the
[[Page 136]]
standard combination 50-25-50 and combination padlocks shall be reset to
the standard combination 10-20-30. The designated security officer in
each Treasury bureau and the Departmental Offices shall prescribe such
supplementary controls deemed necessary to fulfill their individual
needs to be consistent with Sec. 2.27.
(3) Security Container Check Sheet. Each piece of security equipment
used for the storage of classified information will have attached
conspicuously to the outside a Standard Form 702 (Security Container
Check Sheet) on which an authorized person will record the date and
actual time each business day that they initially unlock and finally
lock the security equipment, followed by their initials. Users of this
form are to avoid citations which reflect the opening, locking and
checking of the security equipment at standardized (non-actual) times,
e.g., opened at 8:00 a.m. and closed/checked at 4:00 p.m. Bureaus and
the Departmental Offices may continue to use Optional Form 62 (Safe or
Cabinet Security Record) in lieu of the SF 702 until September 30, 1990,
or such time as their supplies of Optional Form 62 are exhausted. The
reprinting or photostatic reproduction and use of Optional Form 62 is
not authorized. On each normal workday, regardless of whether the
security equipment was opened on that particular day, the security
equipment shall be checked by authorized personnel to assure that no
surreptitious attempt has been made to penetrate the security equipment.
Such examinations normally consist of a quick or casual visual check to
note either any obvious marks or gashes, or defects or malfunction of
the security equipment which are different from their prior observations
or experience in operating the equipment concerned. Any such
discrepancies in the appearance of or functioning of the security
equipment, based upon this visual check, should be reported to
appropriate security officials. The ``Checked By'' column of the SF 702
or Optional Form 62 shall be annotated to reflect the date and time of
this action followed by that person's initials. Security equipment used
for the storage of classified information that has been opened on a
particular day shall not be left unattended at the end of that day until
it has been locked by an authorized person and checked by a second
person. In the event a second person is not available within the office,
the individual who locked the equipment shall also annotate the
``Checked By'' column of the SF 702 or Optional Form 62. Reversible
``OPEN-CLOSED'' or ``LOCKED-UNLOCKED'' signs, available through normal
supply channels, shall also be used on such security equipment. The
respective side of the sign shall be displayed to indicate when the
container is open or closed. Except for the SF 702 or Optional Form 62,
the top surface area of security equipment is not to be used for storage
and must be kept free of extraneous material. SF 702 and/or Optional
Form 62 shall be utilized on all security equipment used for storing
information bearing the control legend ``Limited Official Use''. The
designated security officer in each Treasury bureau and the Department
Offices may, as warranted, prescribe supplementary use of the SF 702 or
Optional Form 62 to apply to other authorized legends approved by the
Department for officially limited information.
(4) Safe Combination Records. Combinations to security equipment
containing classified information shall be recorded on Standard Form 700
(Security Container Information), national stock number 7540-01-214-
5372. Bureaus and the Departmental Offices may continue to use Treasury
Form 4032 (Security Container Information) in lieu of the SF 700 until
September 30, 1990, or such time as their supplies of Treasury Form 4032
are exhausted. The reprinting of Treasury Form 4032 is not authorized.
Each part of the SF 700 shall be completed in its entirety. The names,
addresses and home telephone numbers of personnel responsible for the
combination, and the classified information stored therein, must be
indicated on part 1 of the SF 700. The completed part 1 shall be posted
in the front interior of the top, control or locking drawer of the
security equipment concerned. Part 2 shall be inserted in the envelop
(part 2A) provided, and forwarded via appropriate secure means to the
designated bureau
[[Page 137]]
or Departmental Offices central repository for security combinations.
Part 2 shall have the highest level of classified information, stored in
the security equipment concerned, annotated in both the top and bottom
border areas of the completed SF 700. Part 2A shall have the highest
level of classified information, stored in the security equipment
concerned, annotated in the blank space immediately above the word,
``WARNING'' which appears on the SF 700. The completion of the SF 700 or
Treasury Form 4032 does not constitute a classification action but
serves as an administrative requirement to ensure the protection of
classified information stored in such security equipment. SF 700 shall
be utilized on all security equipment used for storing information
bearing the control legend ``Limited Official Use''. The designated
security officer in each Treasury bureau and the Departmental Offices
may prescribe supplementary use of the SF 700 to apply to other
authorized legends approved by the Department for officially limited
information, as warranted.
(c) Keys. The designated security officer in each Treasury bureau
and the Departmental Offices shall establish administrative procedures
for the control and accountability of keys and locks whenever key-
operated, high-security padlocks are utilized. The level of protection
provided such keys shall be equivalent to that afforded the information
being protected by the padlock.
(d) Classified Document Cover Sheets. Classified document cover
sheets alert personnel that documents or folders are classified and
require protection from unauthorized scrutiny. Individuals who prepare
or package classified documents are responsible for affixing the
appropriate document cover sheet. Orange Standard Form 703 (Top Secret
Cover Sheet), red SF 704 (Secret Cover Sheet) and blue SF 706
(Confidential Cover Sheet) are the only authorized cover sheets for
collateral classified information. The national stock numbers of these
cover sheets are as follows: SF 703, 7540-01-213-7901; SF 704, 7540-01-
213-7902; and SF 705, 7540-01-213-7903. In order to maintain the
integrity of the color coding process the photocopying and use of non-
color coded classified document cover sheets is prohibited. Bureaus and
offices shall maintain a supply of classified document cover sheets
appropriate for their needs. Classified document cover sheets are
designed to be reused and will be removed before classified information
is filed to conserve filing space and prior to the destruction of
classified information. Document cover sheets are to be used to shield
classified documents while in use and particularly when the transmission
is made internally within a headquarters by courier, messenger or by
personal contact. File folders containing classified information should
be otherwise marked, e.g., at the top and bottom of the front and back
covers, to indicate the overall classification of the contents rather
than permanently affixing the respective classified document cover
sheet. Treasury Directive 71-02 provides for the use of a green cover
sheet, TD F 71-01.6 (Limited Official Use Document Cover Sheet) for
information bearing the control legend ``Limited Official Use''. Bureaus
or offices electing to create and use other cover sheets for officially
limited information must obtain prior written approval from the
Departmental Director of Security.
(e) Activity Security Checklist. Standard Form 701 (Activity
Security Checklist) provides a systematic means to make a thorough end-
of-day security inspection for a particular work area and to allow for
employee accountability in the event that irregularities are discovered.
Bureaus and the Departmental Offices may include additional information
on the SF 701 to suit their unique needs. The SF 701, available through
normal supply channels has a national stock number of 7540-01-213-7900.
It shall be the only form used in situations that call for use of an
activity security checklist. Completion, storage and disposition of SF
701 will be determined by each bureau and the Departmental Offices.
Sec. 2.28 Transmittal [4.1(b)].
(a) Preparation. Classified information to be transmitted outside of
a Treasury facility shall be enclosed in opaque inner and outer covers.
The inner cover shall be a sealed wrapper or
[[Page 138]]
envelope plainly marked with the assigned security classification and
addresses of both sender and addressee. The outer cover shall be sealed
and addressed with no identification of the classification of its
contents. Whenever classified material is to be transmitted and the size
of the material is not suitable for use of envelopes or similar
wrappings, it shall be enclosed in two opaque sealed containers, such as
boxes or heavy wrappings. Material used for packaging such bulk
classified information shall be of sufficient strength and durability as
to provide security protection while in transit, to prevent items from
breaking out of the container, and to facilitate detection of any
tampering therewith.
(b) Receipting. A receipt, Treasury Department Form 71-01.5
(Classified Document Record of Transmittal), shall be enclosed in the
inner cover, except that Confidential and Limited Official Use
information shall require a receipt only if the sender deems it
necessary. The receipt shall identify the sender, addressee and describe
the document, but shall contain no classified information. It shall be
immediately signed by the recipient and returned to the sender. Within a
Treasury facility, such information may be transmitted between offices
by direct contact of the officials concerned in a single sealed opaque
envelope with no security classification category being shown on the
outside of the envelope. Classified information shall never be delivered
to unoccupied offices or rooms. Senders of classified information should
maintain appropriate records of outstanding receipts for which return of
the original signed copy is still pending. TD F's 71-01.5 shall be
maintained for a three year period after which they may be destroyed. No
record of the actual destruction of the TD F 71-01.5 is required.
(c) Transmittal of Top Secret. The transmittal of Top Secret
information outside of a Treasury facility shall be by specifically
designated personnel, by State Department diplomatic pouch, by a
messenger-courier system authorized for that purpose, e.g., Defense
Courier Service, or over authorized secure communications circuits. Top
Secret information may not be sent via registered mail.
(d) Transmittal of Secret. The transmittal of Secret information
shall be effected in the following manner:
(1) The 50 States, District of Columbia and Puerto Rico. Secret
information may be transmitted within and between the 50 States, the
District of Columbia, and the Commonwealth of Puerto Rico by one of the
means authorized for Top Secret information, by the United States Postal
Service registered mail or express mail service; or by protective
services provided by United States air or surface commercial carriers
under such conditions as may be prescribed by the Departmental Director
of Security. United States Postal Service express mail service shall be
used only when it is the most effective means to accomplish a mission
within security, time, cost and accountability constraints. To ensure
direct delivery to the addressee, the ``Waiver of Signature and
Indemnity'' block on the United States Postal Service Express Mail Label
11-B may not be executed under any circumstances. All Secret express
mail shipments are to be processed through mail distribution centers or
delivered directly to a United States Postal Service facility or
representative. The use of external (street side) express mail
collection boxes is prohibited. Only the express mail services of the
United States Postal Service are authorized.
(2) Other Areas. Secret information may be transmitted from, to, or
within areas other than those specified in Sec. 2.28(d)(1) by one of the
means established for Top Secret information, or by United States
registered mail through Military Postal Service facilities provided that
the information does not at any time pass out of United States citizen
control and does not pass through a foreign postal system. Transmittal
outside such areas may also be accomplished under escort of
appropriately cleared personnel aboard United States Government owned
and United States Government contract vehicles or aircraft, ships of the
United States Navy, civil service manned United States Naval ships, and
ships of United States Registry. Operators of
[[Page 139]]
vehicles, captains or masters of vessels, and pilots of aircraft who are
United States citizens, and who are appropriately cleared, may be
designated as escorts. Secret information may not be sent via certified
mail.
(e) Transmittal of Confidential and Limited Official Use
Information. Confidential and Limited Official Use information shall be
transmitted within and between the 50 States, the District of Columbia,
the Commonwealth of Puerto Rico, and United States territories or
possessions by one of the means established for higher classifications,
or by the United States Postal Service registered mail. Outside these
areas, confidential and Limited Official Use information shall be
transmitted only as is authorized for higher classifications.
Confidential and Limited Official Use information may not be sent via
certified mail.
(f) Hand Carrying of Classified Information in Travel Status--(1)
General Provisions. Personnel in travel status shall physically
transport classified information across international boundaries only
when absolutely essential. Whenever possible, and when time permits, the
most desirable way to transmit classified information to the location
being visited is by other authorized means identified in Sec. 2.28 (c),
(d) and (e). The physical transportation of classified information on
non-United States flag aircraft should be avoided if possible. Treaury
Directive 71-03, ``Screening of Airline Passengers Carrying Classified
Information or Material'' provides specifics on the requirements for
transporting classified information.
(2) Specific Safeguards. If it is determined that the transportation
of classified information by an individual in travel status is in the
best interest of the United States Government, the following specific
safeguards shall be fulfilled:
(i) Classified information shall be in the physical possession of
the individual and shall have adequate safeguards at all times if proper
storage at a United States Government facility is not available. Under
no circumstances shall classified information be stored in a hotel safe
or room, locked in automobiles, private residences, train compartments,
or any vehicular detachable storage compartments.
(ii) An inventory of all Top Secret classified information,
including teletype messages, shall be made prior to departure and a copy
of same shall be retained by the traveller's office until the
traveller's return at which time all Top Secret classified information
shall be accounted for. These same procedures are recommended for
information classified Secret, Confidential or Limited Official Use.
(iii) Classified information shall never be displayed or used in any
manner in public conveyances or rooms. First class or business travel is
not authorized when the justification for commercially available
transportation is based on the need for reviewing classified materials
while enroute. Travelers are responsible for reviewing and familiarizing
themselves with required classified materials, under appropriately
secure circumstances, in advance of their travel and not during such
travel.
(iv) In order to avoid unnecessary delays in the screening process
prior to boarding commercial air carriers, the traveler shall have in
his or her possession written authorization, on Treasury or bureau
letterhead, to transport classified information and either an
identification card or credential bearing both a photograph and
descriptive data. Courier authorizations shall be signed by an
appropriate security representative authorized to direct official
travel. This courier authorization, along with official travel orders,
shall, in most instances, permit the individual to exempt the classified
information from inspection. If difficulty is encountered, the traveler
should tactfully refuse to exhibit or disclose the classified
information to inspection and should insist on the assistance of the
local United States diplomatic representative at the port of entry or
departure.
(v) Upon completion of the visit, the traveler shall have the
information returned to his or her office by approved means. All Top
Secret and Secret classified information, including teletype messages
transported for the purpose of the visit shall be accounted for. It is
highly recommended that Confidential
[[Page 140]]
and Limited Official Use information also be accounted for. If any Top
Secret or Secret classified items are left with the office being visited
for its retention and use, the individual shall obtain a receipt.
[55 FR 1644, Jan. 17, 1990, as amended at 55 FR 50321, Dec. 6, 1990]
Sec. 2.29 Telecommunications and computer transmissions.
Classified information shall not be communicated by
telecommunications or computer transmissions except as may be authorized
with respect to the transmission of classified information over
authorized secure communications circuits or systems.
Sec. 2.30 Special access programs [1.2(a) and 4.2(a)].
Only the Secretary of the Treasury may create or continue a special
access program if:
(a) Normal management and safeguarding procedures do not limit
access sufficiently; and
(b) The number of persons with access is limited to the minimum
necessary to meet the objective of providing extra protection for the
information.
Sec. 2.31 Reproduction controls [4.1(b)].
(a) Top Secret documents, except for the controlled initial
distribution of information processed or received electronically, shall
not be reproduced without the consent of the originator.
(b) Unless restricted by the originating agency, Secret,
Confidential and Limited Official Use documents may be reproduced to the
extent required by operational needs.
(c) Reproductions of classified documents shall be subject to the
same accountability and controls as the original documents.
(d) Paragraphs (a) and (b) of this section shall not restrict the
reproduction of documents to facilitate review for possible
declassification.
Sec. 2.32 Loss or possible compromise [4.1(b)].
(a) Report of Loss or Possible Compromise. Any Treasury employee who
has knowledge of the loss or possible compromise or classified
information shall immediately report the circumstances to their
designated office or bureau security officer who shall take appropriate
action to assess the degree of damage. In turn, the Departmental
Director of Security shall be immediately notified by the affected
office or bureau security officer of such reported loss or possible
compromise. The Departmental Director of Security shall also notify the
department or agency which originated the information and any other
interested department or agency so that a damage assessment may be
conducted and appropriate measures taken to negate or minimize any
adverse effect of the loss or possible compromise. Compromises may occur
through espionage, unauthorized disclosures to the press or other
members of the public, publication of books and treatises, the known
loss of classified information or equipment to foreign powers, or
through various other circumstances.
(b) Inquiry. The Departmental Director of Security shall notify the
Assistant Secretary (Management) who shall then direct an immediate
inquiry to be conducted for the purpose of taking corrective measures
and assessing damages. Based on the results of this inquiry, it may be
deemed appropriate to notify the Inspector General who shall determine
whether the Office of the Inspector General or a Treasury bureau will
conduct any additional investigation. Upon completion of the
investigation by the Inspector General, the Inspector General shall
recommend to the Assistant Secretary (Management) and concurrently to
the Departmental Director of Security, the appropriate administrative,
disciplinary, or legal action to be taken based upon jurisdictional
authority of the Treasury components involved.
(c) Content of Damage Assessments. At a minimum, damage assessments
shall be in writing and contain the following:
(1) Identification of the source, date and circumstances of the
compromise.
(2) Classification and description of the specific information which
has been lost.
[[Page 141]]
(3) An analysis and statement of the known or probable damage to the
national security that has resulted or may result.
(4) An assessment of the possible advantage to foreign powers
resulting from the compromise.
(5) An assessment of whether,
(i) The classification of the information involved should be
continued without change;
(ii) The specific information, or parts thereof, shall be modified
to minimize or nullify the effects of the reported compromise and the
classification retained;
(iii) Downgrading, declassification, or upgrading is warranted, and
if so, confirmation of prompt notification to holders of any change, and
(6) An assessment of whether countermeasures are appropriate and
feasible to negate or minimize the effect of the compromise.
(d) System for Control of Damage Assessments. Each Treasury bureau
and the Departmental Offices shall establish a system of control and
internal procedures to ensure that damage assessments are performed in
all cases described in Sec. 2.32(a) and that records are maintained in a
manner that facilitates their retrieval and use within the Department.
(e) Cases Involving More Than One Agency. (1) Whenever a compromise
involves the classified information or interests of more than one
agency, the Departmental Director of Security shall advise the other
affected agencies of the circumstances and findings that affect their
information or interests. Whenever a damage assessment, incorporating
the product of two or more agencies is needed, the affected agencies
shall agree upon the assignment of responsibility for the assessment and
Treasury components will provide all data pertinent to the compromise to
the agency responsible for conducting the assessment.
(2) Whenever a compromise of United States classified information is
the result of actions taken by foreign nationals, by foreign government
officials, or by United States nationals in the employ of international
organizations, the agency performing the damage assessment shall
endeavor to ensure through appropriate intergovernmental liaison
channels, that information pertinent to the assessment is obtained.
Whenever more than one agency is responsible for the assessment, those
agencies shall coordinate the request prior to transmittal through
appropriate channels.
(3) Whenever an action is contemplated against any person believed
responsible for the loss or compromise of classified information, damage
assessments shall be coordinated with appropriate legal counsel.
Whenever a violation of criminal law appears to have occured and a
criminal prosecution is contemplated, coordination shall be made with
the Department of Justice.
(4) The designated representative of the Director of Central
Intelligence, or other appropriate officials with responsibility for the
information involved, will be consulted whenever a compromise of
sensitive compartmented information has occurred.
Sec. 2.33 Responsibilities of holders [4.1(b)].
Any person having access to and possession of classified information
is responsible for protecting it from persons not authorized access,
i.e., persons who do not possess an appropriate security clearance, and
who do not possess the required need-to-know. This includes keeping
classified documents under constant observation and turned face-down or
covered when not in use and securing such information in approved
security equipment or facilities whenever it is not under the direct
supervision of authorized persons. In all instances, such protective
means must meet accountability requirements prescribed by the
Department.
Sec. 2.34 Inspections [4.1(b)].
Individuals charged with the custody of classified information shall
conduct the necessary inspections within their areas to ensure adherence
to procedural safeguards prescribed to protect classified information.
Security officers shall ensure that periodic inspections are made to
determine whether procedural safeguards prescribed by this regulation
and any bureau implementing regulation are in effect at all
[[Page 142]]
times. At a minimum such checks shall ensure that all classified
information is stored in approved security containers, including
removable storage media, e.g., floppy disks used by word processors that
contain classified information; burn bags, if utilized, are either
stored in approved security containers or destroyed; and classified
shorthand notes, carbon paper, carbon and plastic typewriter ribbons,
rough drafts and similar papers have been properly stored or destroyed.
Sec. 2.35 Security violations.
Any individual, at any level of employment, determined to have been
responsible for the unauthorized release or disclosure or potential
release or disclosure of classified national security information,
whether it be knowingly, willfully or through negligence, shall be
notified on TD F 71-21.1 (Record of Security Violation) that his or her
action is in violation of this regulation, the Order, the Directive, and
Executive Order 10450, as amended. Treasury Directive 71-04, entitled,
``Administration of Security Violations'' sets forth provisions
concerning security violations which shall apply to each Treasury
employee and persons under contract or subcontract to the Department
authorized access to Treasury classified national security information.
(a) Repeated abuse of the classification process, either by
unnecessary or over-classification, or repeated failure, neglect or
disregard of established requirements for safeguarding classified
information by any employee shall be grounds for appropriate adverse or
disciplinary action. Such actions may include, but are not necessarily
limited to, a letter of warning, a letter of reprimand, suspension
without pay, or dismissal, as appropriate in the particular case, under
applicable personnel rules, regulations and procedures. Where a
violation of criminal statutes may be involved, any such case shall be
promptly referred to the Department of Justice.
(b) After an affirmative adjudication of a security violation, and
as the occasion demands, reports of accountable security violations
shall be placed in the employee's personnel security file, and as
appropriate, in the employee's official personnel folder. The security
official of the office or bureau concerned shall recommend to the
respective management official or bureau head that disciplinary action
be taken when such action is indicated.
Sec. 2.36 Disposition and destruction [4.1(b)].
Classified information no longer needed in current working files or
for reference or record purposes shall be processed for appropriate
disposition in accordance with the provisions of Title 44, United States
Code, Chapters 21 and 33, which govern disposition of Federal records.
Classified information approved for destruction shall be destroyed by
either burning, melting, chemical decomposition, pulping, mulching,
pulverizing, cross-cut shredding or other mutilation in the presence of
appropriately cleared and authorized persons. The method of destruction
must preclude recognition or reconstruction of the classified
information. The residue from cross-cut shredding of Top Secret, Secret,
and Confidential classified, non-Communications Security (COMSEC),
information contained in paper media may not exceed \3/32\" by \1/2\"
with a \1/64\" tolerance.
(a) Diskettes or Floppy Disks. Diskettes or floppy disks containing
information or data classified up to and including Top Secret may be
destroyed by the use of an approved degausser, burning, pulverizing, and
chemical decomposition, or by first reformatting or reinitializing the
diskette then physically removing the magnetic disk from its protective
sleeve and using an approved cross-cut shredder to destroy the magnetic
media. Care must be exercised to ensure that the destruction of magnetic
disks does not damage the cross-cut shredder. The residue from such
destruction, however, may not exceed \1/32\" by \1/2\" with a \1/64\"
tolerance. The destruction of classified COMSEC information on diskettes
or floppy disks may only be effected by burning followed by crushing of
the ash residue.
(b) Hard Disks. Hard disks, including removable hard disks, disk
packs, drums or single disk platters that contain classified information
must first
[[Page 143]]
be degaussed prior to physical destruction. The media must be destroyed
by incineration, chemical decomposition or the entire magnetic disk
pack, drum, or platter recording surface must be obliterated by use of
an emery wheel or disk sander.
(c) Approval of Use of Mulching and Cross-cut Shredding Equipment.
Prior to obtaining mulching or cross-cut shredding equipment, the
Departmental Director of Security shall approve the use of such
equipment.
(d) Use of Burnbags. Any classified information to be destroyed by
burning shall be torn and placed in opaque containers, commonly
designated as burnbags, which shall be clearly and distinctly labeled
``BURN'' or ``CLASSIFIED WASTE''. Burnbags awaiting destruction are to
be protected by security safeguards commensurate with the classification
or control designation of the information involved.
(e) Records of Destruction. Appropriate accountability records shall
be maintained on TD F 71-01.17 (Classified Document Certificate of
Destruction) to reflect the destruction of all Top Secret and Secret
information. As deemed necessary by the originator, or as required by
special regulations, the TD F 71-01.17 shall be executed for the
destruction of information classified Confidential or marked Limited
Official Use. TD F's 71-01.17 shall be maintained for a three-year
period after which the form may be destroyed. No record of the actual
destruction of the TD F 71-01.17 is required.
(f) Destruction of non-record Classified Information. Non-record
classified information such as extra copies and duplicates, including
shorthand notes, preliminary drafts, used carbon paper and other
material of similar temporary nature, shall also be destroyed by
burning, mulching, or cross-cut shredding as soon as it has served its
purpose, but no records of such destruction need be maintained.
[55 FR 1644, Jan. 17, 1990; 55 FR 5118, Feb. 13, 1990]
Sec. 2.37 National Security Decision Directive 197.
National Security Decision Directive 197, Reporting Hostile Contacts
and Security Awareness, provides that United States Government employees
are responsible for reporting to their designated security officer:
(a) Any suspected or apparent attempt by persons, regardless of
nationality, to obtain unauthorized access to classified national
security information, sensitive or proprietary information or technology
and/or;
(b) Instances in which they feel they are being targeted for
possible exploitation. Contacts with representatives of designated
countries of concern identified in Sec. 2.43(f) which involve requests
for information which are not ordinarily provided in the course of an
employee's job, regular or daily activity, and/or which might possibly
lead to further requests for access to sensitive, proprietary or
classified information or technology, are to be reported to designated
security officers. Reports of such contacts are to be forwarded by the
designated security officer to the Departmental Director of Security for
appropriate action and coordination.
Subpart E--Implementation and Review
Sec. 2.38 Departmental management.
(a) The Assistant Secretary (Management) shall:
(1) Enforce the Order, the Directive and this regulation, and
establish, coordinate and maintain active training, orientation and
inspection programs for employees concerned with classified information.
(2) Review suggestions and complaints regarding the administration
of this regulation.
(b) Pursuant to Treasury Directive 71-08, ``Delegation of Authority
Concerning Physical Security Programs'', the Departmental Director of
Security shall:
(1) Review all bureau implementing regulations prior to publication
and shall require any regulation to be changed, if it is not consistent
with the Order, the Directive or this regulation.
(2) Have the authority to conduct on-site reviews of bureau physical
security programs and information security programs as they pertain to
each Treasury bureau and to require such
[[Page 144]]
reports, information and assistance as may be necessary, and
(3) Serve as the principal advisor to the Assistant Secretary
(Management) with respect to Treasury physical and information security
programs.
Sec. 2.39 Bureau administration.
Each Treasury bureau and the Departmental Offices shall designate,
in writing to the Departmental Director of Security, an officer or
official to direct, coordinate and administer its physical security and
information security programs which shall include active oversight to
ensure effective implementation of the Order, the Directive, this
regulation. Bureaus and the Departmental Offices shall revise their
existing implementing regulation on national security information to
ensure conformance with this regulation. Time frames for bureau and
Departmental Offices implementation shall be established by the
Departmental Director of Security.
Sec. 2.40 Emergency planning [4.1(b)].
Each Treasury bureau and the Departmental Offices shall develop
plans for the protection, removal, or destruction of classified
information in case of fire, natural disaster, civil disturbance, or
possible enemy action. These plans shall include the disposition of
classified information located in foreign countries.
Sec. 2.41 Emergency authority [4.1(b)].
The Secretary of the Treasury may prescribe by regulation special
provisions for the dissemination, transmittal, destruction, and
safeguarding of national security information during combat or other
emergency situations which pose an imminent threat to national security
information.
Sec. 2.42 Security education [5.3(a)].
Each Treasury bureau that creates, processes or handles national
secutity information, including the Departmental Offices, is required to
establish a security education program. The program shall be sufficient
to familiarize all necessary personnel with the provisions of the Order,
the Directive, this regulation and any other implementing directives and
regulations to impress upon them their individual security
responsibilities. The program shall also provide for initial, refresher,
and termination briefings.
(a) Briefing of Employees. All new employees concerned with
classified information shall be afforded a security briefing regarding
the Order, the Directive and this regulation and sign a security
agreement as required in Sec. 2.22(c). Employees concerned with
sensitive compartmented information shall be required to read and also
sign a security agreement. Copies of applicable laws and pertinent
security regulations setting forth the procedures for the protection and
disclosure of classified information shall be available for all new
employees afforded a security briefing. All employees given a security
briefing shall be required to sign a TD F 71-01.16 (Physical Security
Orientation Acknowledgment) which shall be maintained on file as
determined by respective office or bureau security officials.
(b) [Reserved]
Subpart F--General Provisions
Sec. 2.43 Definitions [6.1].
(a) Authorized Person. Those individuals who have a ``need-to-know''
the classified information involved and have been cleared for the
receipt of such information. Responsibility for determining whether
individuals' duties require that they possess, or have access to, any
classified information and whether they are authorized to receive it
rests on the individual who has possession, knowledge, or control of the
information involved, and not on the prospective recipients.
(b) Compromise. The loss of security enabling unauthorized access to
classified information. Affected information or material is not
automatically declassified.
(c) Confidential Source. Any individual or organization that has
provided, or that may reasonably be expected to provide, information to
the United States on matters pertaining to the national security with
the expectation, expressed or implied, that the information or
relationship, or both, be held in confidence.
[[Page 145]]
(d) Declassification. The determination that particular classified
information no longer requires protection against unauthorized
disclosure in the interest of national security. Such determination
shall be by specific action or occur automatically after the lapse of a
requisite period of time or the occurrence of a specified event. If such
determination is by specific action, the information or material shall
be so marked with the new designation.
(e) Derivative Classification. A determination that information is,
in substance, the same as informaiton that is currently classified and a
designation of the level of classification.
(f) Designated Countries of Concern. For purposes of National
Security Decision Directive 197 reporting: Afghanistan, Albania, Angola,
Bulgaria, Cambodia (Kampuchea), the People's Republic of China
(Communist China), Cuba, Czechoslovakia, Ethiopia, East Germany (German
Democratic Republic including the Soviet sector of Berlin), Hungary,
Iran, Iraq, Laos, Libya, Mongolian People's Republic (Outer Mongolia),
Nicaragua, North Korea, Palestine Liberation Organization, Poland,
Romania, South Africa, South Yemen, Syria, Taiwan, Union of Soviet
Socialist Republics (Russia), Vietnam and Yugoslavia.
(g) Document. Any recorded information regardless of its physical
form or characteristics, including, without limitation, written or
printed material; data processing cards and tapes; maps, charts;
painting; drawings; engravings; sketches; working notes and papers;
reproductions of such things by any means or process; and sound, voice,
or electronic recordings in any form.
(h) Foreign Government Information. (1) Information provided by a
foreign government or governments, an international organization of
governments, or any elements thereof with the expectation, expressed or
implied, that the information, the source of the information, or both,
are to be held in confidence; or
(2) Information produced by the United States Government pursuant to
or as a result of a joint arrangement with a foreign government or
governments or an international organization of governments, or any
element thereof, requiring that the information, the arrangement, or
both, are to be held in confidence.
(i) Information. Any data or material, regardless of its physical
form or characteristics, that is owned by, produced by or for, or is
under the control of the United States Government.
(j) Information Security. The administrative policies and procedures
for identifying, controlling, and safeguarding from unauthorized
disclosure, information the protection of which is authorized by
Executive Order or statute.
(k) Intelligence Activity. An activity that an agency within the
Intelligence Community is authorized to conduct pursuant to Executive
Order 12333.
(l) Intelligence Sources and Methods. A person, organization, or
technical means or method which provides foreign intelligence or foreign
counterintelligence to the United States and which, if its identity or
capability is disclosed, is vulnerable to counteraction that could
nullify or significantly reduce its effectiveness in providing foreign
intelligence or foreign counterintelligence to the United States. An
intelligence source also means a person or organization which provides
foreign intelligence or foreign counterintelligence to the United States
only on the condition that its identity remains undisclosed.
Intelligence methods are that which, if disclosed, reasonably could lead
to the disclosure of an intelligence source or operation.
(m) Limited Official Use. The legend authorized for ``Officially
Limited Information'' which provides that it be handled, safeguarded and
stored in a manner equivalent to national security information
classified Confidential.
(n) Multiple Classified Sources. The term used to indicate that a
document is derivatively classified when it contains classified
information derived from other than one source.
(o) National Security. The national defense or foreign relations of
the United States.
(p) National Security Information. Information that has been
determined
[[Page 146]]
pursuant to the Order or any predecessor Executive Order to require
protection against unauthorized disclosure and that is so designated.
(q) Need-to-Know. A determination made by the possessor of
classified information that a prospective recipient, in the interest of
national security, has a requirement for access to, knowledge of, or
possession of the classified information in order to perform tasks or
services essential to the fulfillment of particular work, including
performance on contracts for which such access is required.
(r) Officially Limited Information. Information which does not meet
the criterion that unauthorized disclosure would at least cause damage
to the national security under the Order or a predecessor Executive
Order, but which concerns important, delicate, sensitive or proprietary
information which is utilized in the development of Treasury policy.
This includes the enforcement of criminal and civil laws relating to
Treasury operations, the making of decisions on personnel matters and
the consideration of financial information provided in confidence.
(s) Original Classification. An initial determination that
information requires, in the interest of national security, protection
against unauthorized disclosure, together with a classification
designation signifying the level of protection required.
(t) Original Classification Authority. The authority vested in an
Executive Branch official to make an initial determination that
information requires protection against unauthorized disclosure in the
interest of national security.
(u) Originating Agency. The agency responsible for the initial
determination that particular information is classified.
(v) Portion. A segment of a document for purposes of expressing a
unified theme; ordinarily a paragraph.
(w) Sensitive Compartmented Information. Information and material
concerning or derived from intelligence sources, methods, or analytical
processes, that requires special controls for restricting handling
within compartmented intelligence systems established by the Director of
Central Intelligence and for which compartmentation is established.
(x) Special Access Program. Any program imposing ``need-to-know'' or
access controls beyond those normally provided for access to
Confidential, Secret, or Top Secret information. Such a program may
include, but is not limited to, special clearance, adjudication, or
investigative requirements, special designations of officials authorized
to determine ``need-to-know'' or special lists of persons determined to
have a ``need-to-know''.
(y) Special Activity. An activity conducted in support of national
foreign policy objectives abroad which is planned and executed so that
the role of the United States Government is not apparent or acknowledged
publicly, and functions in support of such activity, but which is not
intended to influence United States political processes, public opinion,
policies or media and does not include diplomatic activities or the
collection and production of intelligence or related support functions.
(z) Unauthorized Disclosure. A communication or physical transfer of
classified information to an unauthorized recipient. It includes the
unauthorized disclosure of classified information in a newspaper,
journal, or other publication where such information is traceable due to
a direct quotation or other uniquely identifiable fact.
PART 3--CLAIMS REGULATIONS AND INDEMNIFICATION OF DEPARTMENT OF TREASURY EMPLOYEES--Table of Contents
Subpart A--Claims Under the Federal Tort Claims Act
Sec.
3.1 Scope of regulations.
3.2 Filing of claims.
3.3 Legal review.
3.4 Approval of claims not in excess of $25,000.
3.5 Limitations on authority to approve claims.
3.6 Final denial of a claim.
3.7 Action on approved claims.
3.8 Statute of limitations.
Subpart B--Claims Under the Small Claims Act
3.20 General.
[[Page 147]]
3.21 Action by claimant.
3.22 Legal review.
3.23 Approval of claims.
3.24 Statute of limitations.
Subpart C--Indemnification of Department of Treasury Employees
3.30 Policy.
Authority: 28 U.S.C. 2672; 28 CFR part 14; 5 U.S.C. 301.
Source: 35 FR 6429, Apr. 22, 1970, unless otherwise noted.
Subpart A--Claims Under the Federal Tort Claims Act
Sec. 3.1 Scope of regulations.
(a) The regulations in this part shall apply to claims asserted
under the Federal Tort Claims Act, as amended, 28 U.S.C. 2672, accruing
on or after January 18, 1967, for money damages against the United
States for injury to or loss of property or personal injury or death
caused by the negligent or wrongful act or omission of an employee of
the Department while acting within the scope of his office or
employment, under circumstances where the United States if a private
person, would be liable to the claimant for such damage, loss, injury,
or death, in accordance with the law of the place where the act or
omission occurred. The regulations in this subpart do not apply to any
tort claims excluded from the Federal Tort Claims Act, as amended, under
28 U.S.C. 2680.
(b) Unless specifically modified by the regulations in this part,
procedures and requirements for filing and handling claims under the
Federal Tort Claims Act shall be in accordance with the regulations
issued by the Department of Justice, at 28 CFR part 14, as amended.
Sec. 3.2 Filing of claims.
(a) When presented. A claim shall be deemed to have been presented
upon the receipt from a claimant, his duly authorized agent or legal
representative of an executed Standard Form 95 or other written
notification of an incident, accompanied by a claim for money damages in
a sum certain for injury to or loss of property, or personal injury, or
death alleged to have occurred by reason of the incident.
(b) Place of filing claim. Claims shall be submitted directly or
through the local field headquarters to the head of the bureau or office
of the Department out of whose activities the incident occurred, if
known; or if not known, to the General Counsel, Treasury Department,
Washington, DC 20220.
(c) Contents of claim. The evidence and information to be submitted
with the claim shall conform to the requirements of 28 CFR 14.4.
Sec. 3.3 Legal review.
Any claim that exceeds $500, involves personal injuries or
automobile damage, or arises out of an incident that is likely to result
in multiple claimants, shall be forwarded to the legal division of the
bureau or office out of whose activities the claim arose. The claim,
together with the reports of the employee and the investigation, shall
be reviewed in the legal division which shall thereupon make a
recommendation that the claim be approved, disapproved, or compromised,
and shall advise on the need for referral of the claim to the Department
of Justice. This recommendation and advice, together with the file,
shall be forwarded to the head of the bureau or office or his designee.
[35 FR 6429, Apr. 22, 1970, as amended at 48 FR 16253, Apr. 15, 1983]
Sec. 3.4 Approval of claims not in excess of $25,000.
(a) Claims not exceeding $25,000 and not otherwise requiring
consultation with the Department of Justice pursuant to 28 CFR 14.6(b)
shall be approved, disapproved, or compromised by the head of the bureau
or office or his designee, taking into consideration the recommendation
of the legal division.
Sec. 3.5 Limitations on authority to approve claims.
(a) All proposed awards, compromises or settlements in excess of
$25,000 require the prior written approval of the Attorney General.
(b) All claims which fall within the provisions of 28 CFR 14.6(b)
require referral to and consultation with the Department of Justice.
(c) Any claim which falls within paragraph (a) or (b) of this
section
[[Page 148]]
shall be reviewed by the General Counsel. If the claim, award,
compromise, or settlement receives the approval of the General Counsel
and the head of the bureau or office or his designee, a letter shall be
prepared for the signature of the General Counsel transmitting to the
Assistant Attorney General, Civil Division, Department of Justice, the
case for approval or consultation as required by 28 CFR 14.6. Such
letter shall conform with the requirements set forth in 28 CFR 14.7.
Sec. 3.6 Final denial of a claim.
The final denial of an administrative claim shall conform with the
requirements of 28 CFR 14.9 and shall be signed by the head of the
bureau or office, or his designee.
Sec. 3.7 Action on approved claims.
(a) Any award, compromise, or settlement in an amount of $2,500 or
less shall be processed for payment from the appropriations of the
bureau or office out of whose activity the claim arose.
(b) Payment of an award, compromise, or settlement in excess of
$2,500 and not more than $100,000 shall be obtained by the bureau or
office by forwarding Standard Form 1145 to the Claims Division, General
Accounting Office.
(c) Payment of an award, compromise, or settlement in excess of
$100,000 shall be obtained by the bureau by forwarding Standard Form
1145 to the Bureau of Government Financial Operations, Department of the
Treasury, which will be responsible for transmitting the award,
compromise, or settlement to the Bureau of the Budget for inclusion in a
deficiency appropriation bill.
(d) When an award is in excess of $25,000, Standard Form 1145 must
be accompanied by evidence that the award, compromise, or settlement has
been approved by the Attorney General or his designee.
(e) When the use of Standard Form 1145 is required, it shall be
executed by the claimant. When a claimant is represented by an attorney,
the voucher for payment shall designate both the claimant and his
attorney as payees; the check shall be delivered to the attorney, whose
address shall appear on the voucher.
(f) Acceptance by the claimant, his agent, or legal representative,
of any award, compromise or settlement made pursuant to the provisions
of section 2672 or 2677 of title 28, United States Code, shall be final
and conclusive on the claimant, his agent or legal representative and
any other person on whose behalf or for whose benefit the claim has been
presented, and shall constitute a complete release of any claim against
the United States and against any employee of the Government whose act
or omission gave rise to the claim, by reason of the same subject
matter.
[35 FR 6429, Apr. 22, 1970, as amended at 39 FR 19470, June 3, 1974]
Sec. 3.8 Statute of limitations.
Claims under this subpart must be presented in writing to the
Department within 2 years after the claim accrued.
Subpart B--Claims Under the Small Claims Act
Sec. 3.20 General.
The Act of December 28, 1922, 42 Stat. 1066, the Small Claims Act,
authorized the head of each department and establishment to consider,
ascertain, adjust, and determine claims of $1,000 or less for damage to,
or loss of, privately owned property caused by the negligence of any
officer or employee of the Government acting within the scope of his
employment. The Federal Tort Claims Act superseded the Small Claims Act
with respect to claims that are allowable under the former act.
Therefore, claims that are not allowable under the Federal Tort Claims
Act, for example, claims arising abroad, may be allowable under the
Small Claims Act.
Sec. 3.21 Action by claimant.
Procedures and requirements for filing claims under this section
shall be the same as required for filing claims under the Federal Tort
Claims Act as set forth in Subpart A of this part.
[[Page 149]]
Sec. 3.22 Legal review.
Claims filed under this subpart shall be forwarded to the legal
division of the bureau or office out of whose activities the claim
arose. The claim, together with the reports of the employee and the
investigation, shall be reviewed in the legal division which shall
thereupon make a recommendation that the claim be approved, disapproved
or compromised.
Sec. 3.23 Approval of claims.
Claims shall be approved, disapproved, or compromised by the head of
the bureau or office or his designee, taking into consideration the
recommendation of the legal division.
Sec. 3.24 Statute of limitations.
No claim will be considered under this subpart unless filed within 1
year from the date of the accrual of said claim.
Subpart C--Indemnification of Department of Treasury Employees
Source: 56 FR 42938, Aug. 30, 1991, unless otherwise noted.
Sec. 3.30 Policy.
(a) The Department of the Treasury may indemnify, in whole or in
part, a Department employee (which for purposes of this regulation shall
include a former employee) for any verdict, judgment or other monetary
award rendered against such employee, provided the Secretary or his or
her designee determines that (1) the conduct giving rise to such
verdict, judgment or award was within the scope of his or her employment
and (2) such indemnification is in the interest of the Department of the
Treasury.
(b) The Department of the Treasury may pay for the settlement or
compromise of a claim against a Department employee at any time,
provided the Secretary or his or her designee determines that (1) the
alleged conduct giving rise to the claim was within the scope of the
employee's employment and (2) such settlement or compromise is in the
interest of the Department of the Treasury.
(c) Absent exceptional circumstances, as determined by the Secretary
or his or her designee, the Department will not entertain a request to
indemnify or to pay for settlement of a claim before entry of an adverse
judgment, verdict or other determination.
(d) When a Department employee becomes aware that he or she has been
named as a party in a proceeding in his or her individual capacity as a
result of conduct within the scope of his or her employment, the
employee should immediately notify his or her supervisor that such an
action is pending. The supervisor shall promptly thereafter notify the
chief legal officer of the employee's employing component. The employee
shall immediately apprise the chief legal officer of his or her
employing component of any offer to settle the proceeding.
(e) A Department employee may request indemnification to satisfy a
verdict, judgment or monetary award entered against the employee or to
compromise a claim pending against the employee. The employee shall
submit a written request, with appropriate documentation including a
copy of the verdict, judgment, award or other order or settlement
proposal, in a timely manner to the Secretary or his or her designee for
decision.
(f) Any payment under this section either to indemnify a Department
employee or to settle a claim shall be contingent upon the availability
of appropriated funds for the payment of salaries and expenses of the
employing component.
PART 4--EMPLOYEES' PERSONAL PROPERTY CLAIMS--Table of Contents
Sec. 4.1 Procedures.
The procedures for filing a claim with the Treasury Department for
personal property that is lost or damaged incident to service are
contained in Treasury Directive 32-13, ``Claims for Loss or Damage to
Personal Property,'' and Treasury Department Publication 32-13,
``Policies and Procedures For Employees' Claim for Loss or Damage to
Personal Property Incident to Service.''
[[Page 150]]
Authority: 31 U.S.C. 3721(j).
[62 FR 18518, Apr. 16, 1997]
PART 5--CLAIMS COLLECTION--Table of Contents
Subpart A--Administrative Collection, Compromise, Termination and
Referral of Claims
Sec.
5.1 Authority.
5.2 Incorporation by reference; scope.
5.3 Designation.
5.4 Application to other statutes.
Subpart B--Salary Offset
5.5 Purpose.
5.6 Scope.
5.7 Designation.
5.8 Definitions.
5.9 Applicability of regulations.
5.10 Waiver requests and claims to the General Accounting Office.
5.11 Notice requirements before offset.
5.12 Hearing.
5.13 Certification.
5.14 Voluntary repayment agreements as alternative to salary offset.
5.15 Special review.
5.16 Notice of salary offset.
5.17 Procedures for salary offset.
5.18 Coordinating salary offset with other agencies.
5.19 Interest, penalties and administrative costs.
5.20 Refunds.
5.21 Request for the services of a hearing official from the creditor
agency.
5.22 Non-waiver of rights by payments.
Subpart C--Tax Refund Offset
5.23 Applicability and scope.
5.24 Designation.
5.25 Definitions.
5.26 Preconditions for Department participation.
5.27 Procedures.
5.28 Referral of debts for offset.
5.29 Notice requirements before offset.
Subpart D--Administrative Offset
5.30 Scope of regulations.
5.31 Designation.
5.32 Definitions.
5.33 General.
5.34 Notification procedures.
5.35 Agency review.
5.36 Written agreement for repayment.
5.37 Administrative offset.
5.38 Jeopardy procedure.
Subpart A--Administrative Collection, Compromise, Termination and
Referral of Claims
Authority: 31 U.S.C. 3711.
Source: 32 FR 452, Jan. 17, 1967, unless otherwise noted.
Sec. 5.1 Authority.
The regulations of this part are issued under section 3 of the
Federal Claims Collection Act of 1966, Pub. L. 89-508, 80 Stat. 308,
309, and in conformity with the Joint Regulations issued under that Act
by the General Accounting Office and the Department of Justice
prescribing standards for administrative collection, compromise,
termination of agency collection action, and referral to the General
Accounting Office and to the Department of Justice for litigation, of
civil claims by the Government for money or property, 4 CFR Chapter II.
Sec. 5.2 Incorporation by reference; scope.
The regulations of this part incorporate by this reference all
provisions of the Joint Regulations of the General Accounting Office and
the Department of Justice, and supplement those regulations by the
prescription of procedures and directives necessary and appropriate for
Treasury operations. The Joint Regulations and this part do not apply to
tax claims nor to any claim as to which there is an indication of fraud
or misrepresentation, as described in Sec. 101.3 of the Joint
Regulations, unless returned by the Justice Department to the Treasury
Department for handling.
Sec. 5.3 Designation.
The heads of bureaus and offices and their delegates are designated
as designees of the Secretary of the Treasury authorized to perform all
the duties for which the Secretary is responsible under the foregoing
Act and Joint Regulations: Provided, however, That no compromise of a
claim shall be effected or collection action terminated, except upon the
recommendation of the General Counsel, the Chief Counsel of the bureau
or office concerned, or the designee of either. Notwithstanding the
[[Page 151]]
foregoing proviso, no such recommendation shall be required with respect
to the termination of collection activity on any claim in which the
unpaid amount of the debt is $300 or less.
(Sec. 3, 80 Stat. 309; 31 U.S.C. 951-953, 4 CFR Chap. II; 31 U.S.C.
3711, 96 Stat. 971 (1982))
[34 FR 5159, Mar. 13, 1969, as amended at 49 FR 45579, Nov. 19, 1984]
Sec. 5.4 Application to other statutes.
(a) The authority of the Secretary of the Treasury or the head of a
bureau or office within the Treasury Department to compromise claims of
the United States shall be exercised with respect to claims not
exceeding $20,000, exclusive of interest, in conformity with the Federal
Claims Collection Act, the Joint Regulations thereunder, and this part,
except where standards are established by other statutes or authorized
regulations issued pursuant thereto.
(b) The authority of the Secretary of the Treasury or the head of a
bureau or office within the Treasury Department to remit or mitigate a
fine, penalty or forfeiture shall be exercised in accordance with the
standards for remission or mitigation established in the governing
statute or in Departmental enforcement policies. In the absence of such
standards, the standards of the Joint Regulations shall be followed to
the extent applicable.
Subpart B--Salary Offset
Authority: 5 U.S.C. 5514; 5 CFR part 550, subpart K.
Source: 52 FR 39514, Oct. 22, 1987, unless otherwise noted.
Sec. 5.5 Purpose.
The purpose of the Debt Collection Act of 1982, (Pub. L. 97-365), is
to provide a comprehensive statutory approach to the collection of debts
due the Federal Government. These regulations implement section 5 of the
Act which authorizes the collection of debts owed by Federal employees
to the Federal Government by means of salary offsets, except that no
claim may be collected by such means if outstanding for more than 10
years after the agency's right to collect the debt first accrued, unless
facts material to the Government's right to collect were not known and
could not reasonably have been known by the official or officials who
were charged with the responsibility for discovery and collection of
such debts. These regulations are consistent with the regulations on
salary offset published by the Office of Personnel Management (OPM) on
July 3, 1984, codified in Subpart K of part 550 of title 5 of the Code
of Federal Regulations.
Sec. 5.6 Scope.
(a) These regulations provide Departmental procedures for the
collection by salary offset of a Federal employee's pay to satisfy
certain debts owed the Government.
(b) These regulations apply to collections by the Secretary of the
Treasury from:
(1) Federal employees who owe debts to the Department; and
(2) Employees of the Department who owe debts to other agencies.
(c) These regulations do not apply to debts or claims arising under
the Internal Revenue Code of 1954, as amended (26 U.S.C. 1 et seq.); the
Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the
United States; or to any case where collection of a debt by salary
offset is explicitly provided for or prohibited by another statute
(e.g., travel advances in 5 U.S.C. 5705 and employee training expenses
in 5 U.S.C. 4108).
(d) These regulations do not apply to any adjustment to pay arising
out of an employee's election of coverage or a change in coverage under
a Federal benefits program requiring periodic deductions from pay, if
the amount to be recovered was accumulated over four pay periods or
less.
(e) Nothing in these regulations precludes the compromise,
suspension, or termination of collection actions where appropriate under
the standards implementing the Federal Claims Collection Act (31 U.S.C.
3711 et seq., 4 CFR parts 101-105, 38 CFR 1.1900 et seq.).
Sec. 5.7 Designation.
The heads of bureaus and offices and their delegates are designated
as designees of the Secretary of the Treasury
[[Page 152]]
authorized to perform all the duties for which the Secretary is
responsible under the foregoing act and Office of Personnel Management
Regulations: Provided, however, That no compromise of a claim shall be
effected or collection action terminated, except upon the recommendation
of the General Counsel, the Chief Counsel of the bureau or office
concerned, or the designee of either. Notwithstanding the foregoing
provision, no such recommendation shall be required with respect to the
termination of collection activity on any claim in which the unpaid
amount of the debt is $300 or less.
Sec. 5.8 Definitions.
As used in this part (except where the context clearly indicates, or
where the term is otherwise defined elsewhere in this part) the
following definitions shall apply:
(a) Agency means:
(1) An Executive Agency as defined by section 105 of Title 5, United
States Code, including the U.S. Postal Service and the U.S. Postal Rate
Commission;
(2) A military department as defined by section 102 of Title 5,
United States Code;
(3) An agency or court of the judicial branch including a court as
defined in section 610 of Title 28, United States Code, the District
Court for the Northern Mariana Islands and the Judicial Panel on
Multidistrict Litigation;
(4) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
(5) Other independent establishments that are entities of the
Federal Government.
(b) Bureau Salary Offset Coordination Officer means an official
designated by the head of each bureau who is responsible for
coordinating debt collection activities for the bureau. The Secretary
shall designate a bureau salary offset coordinator for the Departmental
offices.
(c) Certification means a written debt claim form received from a
creditor agency which requests the paying agency to offset the salary of
an employee.
(d) Creditor agency means an agency of the Federal Government to
which the debt is owed.
(e) Debt or claim means money owed by an employee of the Federal
Government to an agency of the Federal Government from sources which
include loans insured or guaranteed by the United States and all other
amounts due the Government from fees, leases, rents, royalties,
services, sales of real or personal property, overpayments, penalties,
damages, interests, fines and forfeitures (except those arising under
the Uniform Code of Military Justice) and all other similar sources.
(f) Department or Treasury Department means the Departmental Offices
of the Department of the Treasury and each bureau of the Department.
(g) Disposable pay means that part of current basic pay, special
pay, incentive pay, retired pay, retainer pay, or, in the case of an
employee not entitled to basic pay, other authorized pay remaining after
the deduction of any amount required by law to be withheld. The
Department shall allow the following deductions in determining
disposable pay subject to salary offset:
(1) Federal employment taxes;
(2) Amounts deducted for the U.S. Soldiers' and Airmen's Home;
(3) Fines and forfeiture ordered by a court martial or by a
commanding officer;
(4) Federal, state or local income taxes no greater than would be
the case if the employee claimed all dependents to which he or she is
entitled and such additional amounts for which the employee presents
evidence of a tax obligation supporting the additional withholding;
(5) Health insurance premiums;
(6) Normal retirement contributions (e.g., Civil Service Retirement
deductions, Survivor Benefit Plan or Retired Serviceman's Family
Protection Plan); and
(7) Normal life insurance premiums, exclusive of optional life
insurance premiums (e.g., Serviceman's Group Life Insurance and
``basic'' Federal Employee's Group Life Insurance premiums).
(h) Employee means a current employee of the Treasury Department or
other agency, including a current member of the Armed Forces or Reserve
of the Armed Forces of the United States.
[[Page 153]]
(i) Federal Claims Collection Standards, ``FCCS,'' jointly published
by the Department of Justice and the General Accounting Office at 4 CFR
101.1 et seq.
(j) Hearing official means an individual responsible for conducting
any hearing with respect to the existence or amount of a debt claimed,
and rendering a decision on the basis of such hearing. A hearing
official may not be under the supervision or control of the Secretary of
the Department of the Treasury when Treasury is the creditor agency.
(k) Paying agency means the agency of the Federal Government which
employs the individual who owes a debt to an agency of the Federal
Government. In some cases, the Department may be both the creditor and
the paying agency.
(l) Notice of intent to offset or notice of intent means a written
notice from a creditor agency to an employee which alleges that the
employee owes a debt to the creditor agency and apprising the employee
of certain administrative rights.
(m) Notice of salary offset means a written notice from the paying
agency to an employee after a certification has been issued by a
creditor agency, informing the employee that salary offset will begin at
the next officially established pay interval.
(n) Payroll office means the payroll office in the paying agency
which is primarily responsible for the payroll records and the
coordination of pay matters with the appropriate personnel office with
respect to an employee. Payroll office, with respect to the Department
of the Treasury means the payroll offices of each bureau and the Office
of the Assistant Secretary of the Treasury for Management for the
Departmental Offices.
(o) Salary offset means an administrative offset to collect a debt
under 5 U.S.C. 5514 by deduction(s) at one or more officially
established pay intervals from the current pay account of an employee,
without his or her consent.
(p) Secretary means the Secretary of the Treasury or his or her
designee.
(q) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to the Department or
another agency as permitted or required by 5 U.S.C. 5584 or 8346(b), 10
U.S.C. 2774, 32 U.S.C. 716, or any other law.
Sec. 5.9 Applicability of regulations.
These regulations are to be followed in instances where:
(a) The Department is owed a debt by an individual currently
employed by another agency;
(b) Where the Department is owed a debt by an individual who is a
current employee of the Department; or
(c) Where the Department currently employs an individual who owes a
debt to another Federal Agency. Upon receipt of proper certification
from the creditor agency, the Department will offset the debtor-
employee's salary in accordance with these regulations.
Sec. 5.10 Waiver requests and claims to the General Accounting Office.
These regulations do not preclude an employee from requesting waiver
of an overpayment under 5 U.S.C. 5584 or 8346(b), 10 U.S.C. 2774, 32
U.S.C. 716, or in any way questioning the amount or validity of a debt
by submitting a subsequent claim to the General Accounting Office in
accordance with the procedures prescribed by the General Accounting
Office. These regulations also do not preclude an employee from
requesting a waiver pursuant to other statutory provisions pertaining to
the particular debts being collected.
Sec. 5.11 Notice requirements before offset.
(a) Deductions under the authority of 5 U.S.C. 5514 shall not be
made unless the creditor agency provides the employee with written
notice that he/she owes a debt to the Federal Government, a minimum of
30 calendar days before salary offset is initiated. When Treasury is the
creditor agency this notice of intent to offset an employee's salary
shall be hand-delivered or sent by certified mail to the most current
address that is available to the Department and will state:
(1) That the Secretary has reviewed the records relating to the
claim and has determined that a debt is owed, the amount of the debt,
and the facts giving rise to the debt;
[[Page 154]]
(2) The Secretary's intention to collect the debt by means of
deduction from the employee's current disposable pay account until the
debt and all accumulated interest is paid in full;
(3) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
(4) An explanation of the Department's policy concerning interest,
penalties and administrative costs including a statement that such
assessments must be made unless excused in accordance with the Federal
Claims Collection Standards, 4 CFR 101.1 et seq.;
(5) The employee's right to inspect and copy all records of the
Department pertaining to the debt claimed or to receive copies of such
records if personal inspection is impractical;
(6) The right to a hearing conducted by an impartial hearing
official (an administrative law judge, or alternatively, a hearing
official not under the supervision or control of the Secretary) with
respect to the existence and amount of the debt claimed, or the
repayment schedule (i.e., the percentage of disposable pay to be
deducted each pay period), so long as a petition is filed by the
employee as prescribed in Sec. 5.12;
(7) If not previously provided, the opportunity (under terms
agreeable to the Department) to establish a schedule for the voluntary
repayment of the debt or to enter into a written agreement to establish
a schedule for repayment of the debt in lieu of offset. The agreement
must be in writing, signed by both the employee and the creditor agency
(4 CFR 102.2(e));
(8) The name, address and phone number of an officer or employee of
the Department who may be contacted concerning procedures for requesting
a hearing;
(9) The method and time period for requesting a hearing;
(10) That the timely filing of a petition for a hearing on or before
the fifteenth calendar day following receipt of such notice of intent
will stay the commencement of collection proceedings;
(11) The name and address of the office to which the petition should
be sent;
(12) That the Department will initiate certification procedures to
implement a salary offset, as appropriate, (which may not exceed 15
percent of the employee's disposable pay) not less than thirty (30) days
from the date of receipt of the notice of debt, unless the employee
files a timely petition for a hearing;
(13) That a final decision on the hearing (if one is requested) will
be issued at the earliest practical date, but not later than sixty (60)
days after the filing of the petition requesting the hearing, unless the
employee requests and the hearing official grants a delay in the
proceedings;
(14) That any knowingly false or frivolous statements,
representations, or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under Chapter 75 of Title 5,
United States Code, part 752 of title 5, Code of Federal Regulations, or
any other applicable statute or regulations;
(ii) Penalties under the False Claims Act, sections 3729-3731 of
Title 31, United States Code or any other applicable statutory
authority; and
(iii) Criminal penalties under sections 286, 287, 1001, and 1002 of
Title 18, United States Code or any other applicable statutory
authority;
(15) Any other rights and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made;
(16) That unless there are applicable contractual or statutory
provisions to the contrary, that amounts paid on or deducted for the
debt which are later waived or found not owed to the United States will
be promptly refunded to the employee (5 U.S.C. 5514); and
(17) Proceedings with respect to such debt are governed by section 5
of the Debt Collection Act of 1982 (5 U.S.C. 5514).
(b) The Department is not required to comply with paragraph (a) of
this section for any adjustment to pay arising out of an employee's
election of coverage or a change in coverage under a Federal benefits
program requiring periodic deductions from pay if the amount to be
recovered was accumulated over four pay periods or less.
[[Page 155]]
Sec. 5.12 Hearing.
(a) Request for hearing. Except as provided in paragraph (b) of this
section, an employee who desires a hearing concerning the existence or
amount of the debt or the proposed offset schedule must send such a
request to the office designated in the notice of intent. See
Sec. 5.11(a)(8). The request (or petition) for hearing must be received
by the designated office on or before the fifteenth (15) calendar day
following receipt of the notice. The employee must also specify whether
an oral or paper hearing is requested. If an oral hearing is desired,
the request should explain why the matter cannot be resolved by review
of the documentary evidence alone.
(b) Failure to timely submit. If the employee files a petition for a
hearing after the expiration of the fifteen (15) calendar day period
provided for in paragraph (a) of this section, the Department should
accept the request if the employee can show that the delay was the
result of circumstances beyond his or her control or because of a
failure to receive actual notice of the filing deadline (unless the
employee had actual notice of the filing deadline).
(1) An employee waives the right to a hearing, and will have his or
her disposable pay offset in accordance with the Department's offset
schedule, if the employee:
(i) Fails to file a request for a hearing unless such failure is
excused; or
(ii) Fails to appear at an oral hearing of which he or she was
notified unless the hearing official determines failure to appear was
due to circumstances beyond the employee's control (5 U.S.C. 5514).
(c) Representation at the hearing. The creditor agency may be
represented by legal counsel. The employee may represent himself or
herself or may be represented by an individual of his or her choice and
at his or her own expense.
(d) Review of departmental records related to the debt. (1) In
accordance with 5.11(a)(5), an employee who intends to inspect or copy
creditor agency records related to the debt must send a letter to the
official designated in the notice of intent to offset stating his or her
intention. The letter must be received within fifteen (15) calendar days
after receipt of the notice.
(2) In response to a timely request submitted by the debtor, the
designated official will notify the employee of the location and time
when the employee may inspect and copy records related to the debt.
(3) If personal inspection is impractical, arrangements shall be
made to send copies of such records to the employee.
(e) Hearing official. Unless the Department appoints an
administrative law judge to conduct the hearing, the Department must
obtain a hearing official who is not under the supervision or control of
the Secretary of the Treasury.
(f) Obtaining the services of a hearing official when the Department
is the creditor agency. (1) When the debtor is not a Department
employee, and in the event that the Department cannot provide a prompt
and appropriate hearing before an administrative law judge or before a
hearing official furnished pursuant to another lawful arrangement, the
Department may contact an agent of the paying agency designated in
Appendix A to part 581 of title 5, Code of Federal Regulations or as
otherwise designated by the agency, and request a hearing official.
(2) When the debtor is a Department employee, the Department may
contact any agent of another agency designated in Appendix A to part 581
of title 5, Code of Federal Regulations or otherwise designated by that
agency, to request a hearing official.
(g) Procedure. (1) After the employee requests a hearing, the
hearing official or administrative law judge shall notify the employee
of the form of the hearing to be provided. If the hearing will be oral,
notice shall set forth the date, time and location of the hearing. If
the hearing will be paper, the employee shall be notified that he or she
should submit arguments in writing to the hearing official or
administrative law judge by a specified date after which the record
shall be closed. This date shall give the employee reasonable time to
submit documentation.
[[Page 156]]
(2) Oral hearing. An employee who requests an oral hearing shall be
provided an oral hearing if the hearing official or administrative law
judge determines that the matter cannot be resolved by review of
documentary evidence alone (e.g., when an issue of credibility or
veracity is involved). The hearing is not an adversarial adjudication,
and need not take the form of an evidentiary hearing. Oral hearings may
take the form of, but are not limited to:
(i) Informal conferences with the hearing official or administrative
law judge, in which the employee and agency representative will be given
full opportunity to present evidence, witnesses and argument;
(ii) Informal meetings with an interview of the employee; or
(iii) Formal written submissions, with an opportunity for oral
presentation.
(3) Paper hearing. If the hearing official or administrative law
judge determines that an oral hearing is not necessary, he or she will
make the determination based upon a review of the available written
record (5 U.S.C. 5514).
(4) Record. The hearing official must maintain a summary record of
any hearing provided by this subpart. See 4 CFR 102.3. Witnesses who
testify in oral hearings will do so under oath or affirmation.
(h) Date of decision. The hearing official or administrative law
judge shall issue a written opinion stating his or her decision, based
upon documentary evidence and information developed at the hearing, as
soon as practicable after the hearing, but not later than sixty (60)
days after the date on which the petition was received by the creditor
agency, unless the employee requests a delay in the proceedings. In such
case the sixty (60) day decision period shall be extended by the number
of days by which the hearing was postponed.
(i) Content of decision. The written decision shall include:
(1) A statement of the facts presented to support the origin,
nature, and amount of the debt;
(2) The hearing official's findings, analysis and conclusions; and
(3) The terms of any repayment schedules, if applicable.
(j) Failure to appear. In the absence of good cause shown (e.g.,
excused illness), an employee who fails to appear at a hearing shall be
deemed, for the purpose of this subpart, to admit the existence and
amount of the debt as described in the notice of intent. If the
representative of the creditor agency fails to appear, the hearing
official shall proceed with the hearing as scheduled, and make his/her
determination based upon the oral testimony presented and the
documentary documentation submitted by both parties. At the request of
both parties, the hearing official shall schedule a new hearing date.
Both parties shall be given reasonable notice of the time and place of
this new hearing.
Sec. 5.13 Certification.
(a) The bureau salary offset coordination officer shall provide a
certification to the paying agency in all cases where:
(1) The hearing official determines that a debt exists;
(2) The employee admits the existence and amount of the debt by
failing to request a hearing; or
(3) The employee admits the existence of the debt by failing to
appear at a hearing.
(b) The certification must be in writing and must state:
(1) The employee owes the debt;
(2) The amount and basis of the debt;
(3) The date the Government's right to collect the debt first
accrued;
(4) The Department's regulations have been approved by OPM pursuant
to 5 CFR part 550, subpart K;
(5) The amount and date of the lump sum payment;
(6) If the collection is to be made in installments, the number of
installments to be collected, the amount of each installment, and the
commencing date of the first installment, if a date other than the next
officially established pay period is required; and
(7) The dates the action(s) was taken and that it was taken pursuant
to 5 U.S.C. 5514.
[[Page 157]]
Sec. 5.14 Voluntary repayment agreements as alternative to salary offset.
(a) In response to a notice of intent to an employee may propose to
repay the debt as an alternative to salary offset. Any employee who
wishes to repay a debt without salary offset shall submit in writing a
proposed agreement to repay the debt. The proposal shall admit the
existence of the debt and set forth a proposed repayment schedule. Any
proposal under this subsection must be received by the official
designated in that notice within fifteen (15) calendar days after
receipt of the notice of intent.
(b) When the Department is the creditor agency and in response to a
timely proposal by the debtor, the Secretary will notify the employee
whether the employee's proposed written agreement for repayment is
acceptable. It is within the Secretary's discretion to accept a
repayment agreement instead of proceeding by offset.
(c) If the Secretary decides that the proposed repayment agreement
is unacceptable, the employee will have fifteen (15) days from the date
he or she received notice of the decision to file a petition for a
hearing.
(d) If the Secretary decides that the proposed repayment agreement
is acceptable, the alternative arrangement must be in writing and signed
by both the employee and the Secretary.
Sec. 5.15 Special review.
(a) An employee subject to salary offset or a voluntary repayment
agreement, may, at any time, request a special review by the creditor
agency of the amount of the salary offset or voluntary payment, based on
materially changed circumstances such as, but not limited to
catastrophic illness, divorce, death, or disability.
(b) In determining whether an offset would prevent the employee from
meeting essential subsistence expenses (costs incurred for food,
housing, clothing, transportation and medical care), the employee shall
submit a detailed statement and supporting documents for the employee,
his or her spouse and dependents indicating:
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Expenses for food, housing, clothing and transportation;
(6) Medical expenses; and
(7) Exceptional expenses, if any.
(c) If the employee requests a special review under this section,
the employee shall file an alternative proposed offset or payment
schedule and a statement, with supporting documents, showing why the
current salary offset or payments result in an extreme financial
hardship to the employee.
(d) The Secretary shall evaluate the statement and supporting
documents, and determine whether the original offset or repayment
schedule imposes an extreme financial hardship on the employee. The
Secretary shall notify the employee in writing of such determination,
including, if appropriate, a revised offset or payment schedule.
(e) If the special review results in a revised offset or repayment
schedule, the bureau salary offset coordination officer shall provide a
new certification to the paying agency.
Sec. 5.16 Notice of salary offset.
(a) Upon receipt of proper certification of the creditor agency, the
bureau payroll office will send the employee a written notice of salary
offset. Such notice shall, at a minimum:
(1) Contain a copy of the certification received from the creditor
agency; and
(2) Advise the employee that salary offset will be initiated at the
next officially established pay interval.
(b) The bureau payroll office shall provide a copy of the notice to
the creditor agency and advise such agency of the dollar amount to be
offset and the pay period when the offset will begin.
Sec. 5.17 Procedures for salary offset.
(a) The Secretary shall coordinate salary deductions under this
subpart.
(b) The appropriate bureau payroll office shall determine the amount
of an employee's disposable pay and will implement the salary offset.
(c) Deductions shall begin within three official pay periods
following receipt by the payroll office of certification.
[[Page 158]]
(d) Types of collection--(1) Lump-sum payment. If the amount of the
debt is equal to or less than 15 percent of disposable pay, such debt
generally will be collected in one lump-sum payment.
(2) Installment deductions. Installment deductions will be made over
a period not greater than the anticipated period of employment. The size
and frequency of installment deductions will bear a reasonable relation
to the size of the debt and the employee's ability to pay. However, the
amount deducted from any period will not exceed 15 percent of the
disposable pay from which the deduction is made unless the employee has
agreed in writing to the deduction of a greater amount.
(3) Lump-sum deductions from final check. A lump-sum deduction
exceeding the 15 percent disposable pay limitation may be made from any
final salary payment pursuant to 31 U.S.C. 3716 in order to liquidate
the debt, whether the employee is being separated voluntarily or
involuntarily.
(4) Lump-sum deductions from other sources. Whenever an employee
subject to salary offset is separated from the Department, and the
balance of the debt cannot be liquidated by offset of the final salary
check, the Department, pursuant to 31 U.S.C. 3716, may offset any later
payments of any kind against the balance of the debt.
(e) Multiple debts. In instances where two or more creditor agencies
are seeking salary offsets, or where two or more debts are owed to a
single creditor agency, the bureau payroll office may, at its
discretion, determine whether one or more debts should be offset
simultaneously within the 15 percent limitation.
(f) Precedence of debts owed to Treasury. For Treasury employees,
debts owed to the Department generally take precedence over debts owed
to other agencies. In the event that a debt to the Department is
certified while an employee is subject to a salary offset to repay
another agency, the bureau payroll office may decide whether to have
that debt repaid in full before collecting its claim or whether changes
should be made in the salary deduction being sent to the other agency.
If debts owed the Department can be collected in one pay period, the
bureau payroll office may suspend the salary offset to the other agency
for that pay period in order to liquidate the Department's debt. When an
employee owes two or more debts, the best interests of the Government
shall be the primary consideration in the determination by the payroll
office of the order of the debt collection.
Sec. 5.18 Coordinating salary offset with other agencies.
(a) Responsibility of the Department as the creditor agency. (1) The
Secretary shall coordinate debt collections and shall, as appropriate:
(i) Arrange for a hearing upon proper petition by a Federal
employee; and
(ii) Prescribe, upon consultation with the General Counsel, such
practices and procedures as may be necessary to carry out the intent of
this regulation.
(2) The head of each bureau shall designate a salary offset
coordination officer who will be responsible for:
(i) Ensuring that each notice of intent to offset is consistent with
the requirements of Sec. 5.11;
(ii) Ensuring that each certification of debt sent to a paying
agency is consistent with the requirements of Sec. 5.13;
(iii) Obtaining hearing officials from other agencies pursuant to
Sec. 5.12(f); and
(iv) Ensuring that hearings are properly scheduled.
(3) Requesting recovery from current paying agency. Upon completion
of the procedures established in these regulations and pursuant to 5
U.S.C. 5514, the Department must:
(i) Certify, in writing, that the employee owes the debt, the amount
and basis of the debt, the date on which payment(s) is due, the date the
Government's right to collect the debt first accrued, and that the
Department's regulations implementing 5 U.S.C. 5514 have been approved
by the Office of Personnel Management;
(ii) Advise the paying agency of the action(s) taken under 5 U.S.C.
5514(b) and give the date(s) the action(s) was taken (unless the
employee has consented to the salary offset in writing or signed a
statement acknowledging receipt of the required procedures and the
written consent or statement is forwarded to the paying agency);
[[Page 159]]
(iii) Except as otherwise provided in this paragraph, submit a debt
claim containing the information specified in paragraphs (a)(3) (i) and
(ii) of this section and an installment agreement (or other instruction
on the payment schedule), if applicable, to the employee's paying
agency;
(iv) If the employee is in the process of separating, the Department
must submit its debt claim to the employee's paying agency for
collection as provided in Sec. 5.12. The paying agency must certify the
total amount of its collection and notify the creditor agency and the
employee as provided in paragraph (b)(4) of this section. If the paying
agency is aware that the employee is entitled to payments from the Civil
Service Retirement Fund and Disability Fund, or other similar payments,
it must provide written notification to the agency responsible for
making such payments that the debtor owes a debt (including the amount)
and that the provisions of his section have been fully complied with.
However, the Department must submit a properly certified claim to the
agency responsible for making such payments before the collection can be
made.
(v) If the employee is already separated and all payments due from
his or her former paying agency have been paid, the Department may
request, unless otherwise prohibited, that money due and payable to the
employee from the Civil Service Retirement Fund and Disability Fund (5
CFR 831.1801 et seq.) or other similar funds, be administratively offset
to collect the debt (See 31 U.S.C. 3716 and the FCCS).
(4) When an employee transfers to another paying agency, the
Department shall not repeat the due process procedures described in 5
U.S.C. 5514 and this subpart to resume the collection. The Department
must review the debt upon receiving the former paying agency's notice of
the employee's transfer to make sure the collection is resumed by the
paying agency.
(b) Responsibility of the Department as the paying agency--(1)
Complete claim. When the Department receives a certified claim from a
creditor agency, deductions should be scheduled to begin at the next
officially established pay interval. The employee must receive written
notice that the Department has received a certified debt claim from the
creditor agency (including the amount) and written notice of the date
salary offset will begin and the amount of such deductions.
(2) Incomplete claim. When the Department receives an incomplete
certification of debt from a creditor agency, the Department must return
the debt claim with notice that procedures under 5 U.S.C. 551 and this
subpart must be provided and a properly certified debt claim received
before action will be taken to collect from the employee's current pay
account.
(3) Review. The Department is not authorized to review the merits of
the creditor agency's determination with respect to the amount or
validity of the debt certified by the creditor agency.
(4) Employees who transfer from one paying agency to another. If,
after the creditor agency has submitted the debt claim to the
Department, the employee transfers to a different agency before the debt
is collected in full, the Department must certify the total amount
collected on the debt. One copy of the certification must be furnished
to the employee and one copy to the creditor agency along with notice of
the employee's transfer.
Sec. 5.19 Interest, penalties and administrative costs.
(a) The Department shall assess interest, penalties and
administrative costs on debts owed pursuant to 31 U.S.C. 3717 and 4 CFR
101.1 et seq.
Sec. 5.20 Refunds.
(a) In instances where the Department is the creditor agency, it
shall promptly refund any amount deducted under the authority of 5
U.S.C. 5514 when:
(1) The debt is waived or otherwise found not to be owing the United
States; or
(2) An administrative or judicial order directs the Department to
make a refund.
(b) Unless required or permitted by law or contract, refunds under
this subsection shall not bear interest.
[[Page 160]]
Sec. 5.21 Request for the services of a hearing official from the creditor agency.
(a) The Department will provide a hearing official upon request of
the creditor agency when the debtor is employed by the Department and
the creditor agency cannot provide a prompt and appropriate hearing
before an administrative law judge or before a hearing official
furnished pursuant to another lawful arrangement.
(b) The Department will provide a hearing official upon request of a
creditor agency when the debtor works for the creditor agency and that
agency cannot arrange for a hearing official.
(c) The bureau salary offset coordination officer will appoint
qualified personnel to serve as hearing officials.
(d) Services rendered under this section will be provided on a fully
reimbursable basis pursuant to the Economy Act of 1932, as amended, 31
U.S.C. 1535.
Sec. 5.22 Non-waiver of rights by payments.
An employee's involuntary payment of all or any portion of a debt
being collected under this Subpart must not be construed as a waiver of
any rights which the employee may have under 5 U.S.C. 5514 or any other
provisions of a written contract or law unless there are statutory or
contractual provisions to the contrary.
Subpart C--Tax Refund Offset
Authority: 31 U.S.C. 3720A; 26 CFR 301.6402-6T.
Source: 52 FR 50, Jan. 2, 1987, unless otherwise noted.
Sec. 5.23 Applicability and scope.
(a) These regulations implement 31 U.S.C. 3720A which authorizes the
IRS to reduce a tax refund by the amount of a past-due legally
enforceable debt owed to the United States.
(b) For purposes of this section, a past-due legally enforceable
debt referable to the IRS is a debt which is owed to the United States
and:
(1) Except in the case of a judgment debt, has been delinquent for
at least three months and will not have been delinquent more than ten
years at the time the offset is made;
(2) Cannot be currently collected pursuant to the salary offset
provisions of 5 U.S.C. 5514;
(3) Is ineligible for administrative offset under 31 U.S.C. 3716(a)
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by
administrative offset under 31 U.S.C. 3716(a) by the referring agency
against amounts payable to the debtor by the referring agency;
(4) With respect to which the bureau has given the taxpayer at least
sixty (60) days to present evidence that all or part of the debt is not
past-due or legally enforceable, has considered evidence presented by
such taxpayer, and determined that an amount of such debt is past-due
and legally enforceable;
(5) Which, in the case of a debt to be referred to the Service after
June 30, 1986, has been disclosed by the bureau to a consumer reporting
agency as authorized by 31 U.S.C. 3711(f), unless the consumer reporting
agency would be prohibited from reporting information concerning the
debt by reason of 15 U.S.C. 1681c;
(6) With respect to which the Department has notified or has made a
reasonable attempt to notify the taxpayer that:
(i) The debt is past due, and
(ii) Unless repaid within 60 days thereafter, the debt will be
referred to the IRS for offset against any overpayment of tax; and
(7) Is at least $25.
Sec. 5.24 Designation.
The heads of bureaus and their delegates are designated as designees
of the Secretary of the Treasury authorized to perform all the duties
for which the Secretary is responsible under the foregoing statutes and
IRS Regulations: Provided, however, That no compromise of a claim shall
be effected or collection action terminated, except upon the
recommendation of the bureau Chief Counsel or his or her designee.
Notwithstanding the foregoing proviso, no such recommendation shall be
required with respect to the termination of collection activity on any
claim in which the unpaid amount of the debt is $300 or less.
[[Page 161]]
Sec. 5.25 Definitions.
For purposes of this subpart:
Commissioner means the Commissioner of the Internal Revenue Service.
Debt means money owed by an individual from sources which include
loans insured or guaranteed by the United States and all other amounts
due the U.S. from fees, leases, rents, royalties, services, sales of
real or personal property, overpayments, penalties, damages, interest,
fines, forfeitures (except those arising under the Uniform Code of
Military Justice), administrative costs and all other similar sources.
Memorandum of Understanding (MOU or agreement) means the agreement
between the IRS and the individual bureaus which prescribes the specific
conditions the bureaus must meet before the IRS will accept referrals
for tax refund offsets.
Sec. 5.26 Preconditions for Department participation.
(a) The Department, through the individual bureaus, will provide
information to the Service within the time frame prescribed by the
Commissioner of the IRS to enable the Commissioner to make a final
determination as to the each bureau's participation in the tax refund
offset program. Such information shall include a description of:
(1) The size and age of the bureau's inventory of delinquent debts;
(2) The prior collection efforts that the inventory reflects; and
(3) The quality controls the bureau maintains to assure that any
debt the bureau may submit for tax refund offset will be valid and
enforceable.
(b) In accordance with the timetable specified by the Commissioner,
the bureau will submit test magnetic media to the IRS, in such form and
containing such data as the IRS shall specify.
(c) The bureau shall establish a toll free telephone number that the
IRS will furnish to individuals whose refunds have been offset to obtain
information from the bureau concerning the offset.
(d) The bureau shall enter into a separate agreement with the IRS to
provide for reimbursement of the Service's cost of administering the
pilot tax refund offset program in 1987.
Sec. 5.27 Procedures.
(a) The bureau head or his or her designee shall be the point of
contact with the IRS for administrative matters regarding the offset
program.
(b) The bureaus shall ensure that:
(1) Only those past-due legally enforceable debts described in
Sec. 5.23(b) are forwarded to the IRS for offset; and
(2) The procedures prescribed in the MOU between the bureau and the
IRS are followed in developing past-due debt information and submitting
the debts to the IRS.
(c) The bureau shall submit a notification of a taxpayer's liability
for past-due legally enforceable debt to the IRS on magnetic media as
prescribed by the IRS. Such notification shall contain:
(1) The name and taxpayer identifying number (as defined in section
6109 of the Internal Revenue Code) of the individual who is responsible
for the debt;
(2) The dollar amount of such past-due and legally enforceable debt;
(3) The date on which the original debt became past-due;
(4) The designation of the referring bureau submitting the
notification of liability and identification of the referring agency
program under which the debt was incurred;
(5) A statement accompanying each magnetic tape by the referring
bureau certifying that, with respect to each debt reported on the tape,
all of the requirements of eligibility of the debt for referral for the
refund offset have been satisfied. See Sec. 5.23(b).
(d) A bureau shall promptly notify the IRS to correct Treasury data
submitted when the bureau:
(1) Determines that an error has been made with respect to a debt
that has been referred;
(2) Receives or credits a payment on such debt; or
(3) Receives notification that the individual owing the debt has
filed for bankruptcy under Title 11 of the United States Code or has
been adjudicated bankrupt and the debt has been discharged.
(e) When advising debtors of an intent to refer a debt to the IRS
for offset, the bureau shall also advise the
[[Page 162]]
debtors of all remedial actions available to defer or prevent the offset
from taking place.
Sec. 5.28 Referral of debts for offset.
(a) A bureau shall refer to the Service for collection by tax refund
offset, from refunds otherwise payable in calendar year 1987, only such
past-due legally enforceable debts owed to the Department:
(1) That are eligible for offset under the terms of 31 U.S.C. 3720A,
section 6402(d) of the Internal Revenue Code, 26 CFR 301.6402-6T, and
the MOU; and
(2) That information will be provided for each such debt as is
required by the terms of the MOU.
(b) Such referrals shall be made by submitting to the Service a
magnetic tape pursuant to Sec. 5.27(c), together with an accompanying
written certification to the Service by the bureau that the conditions
or requirements specified in 26 CFR 301.6402-6T and the MOU have been
satisfied with respect to each debt included in the referral on such
tape. The bureaus certification shall be in the form specified in the
MOU.
Sec. 5.29 Notice requirements before offset.
(a) The bureau must notify, or make a reasonable attempt to notify,
the individual that:
(1) The debt is past due, and
(2) Unless repaid within 60 days thereafter, the debt will be
referred to the Service for offset against any refund of overpayment of
tax;
(b) The bureau shall provide a toll free telephone number for use in
obtaining information from the bureau concerning the offset.
(c) The bureau shall give the individual debtor at least sixty (60)
days from the date of the notification to present evidence to the bureau
that all or part of the debt is not past-due or legally enforceable. The
bureau shall consider the evidence presented by the individual and shall
make a determination whether an amount of such debt is past-due and
legally enforceable. For purposes of this subsection, evidence that
collection of the debt is affected by a bankruptcy proceeding involving
the individual shall bar referral of the debt to the Service.
(d) Notification given to a debtor pursuant to paragraphs (a), (b)
and (c) of this section shall advise the debtor of how he or she may
present evidence to the bureau that all or part of the debt is not past-
due or legally enforceable. Such evidence may not be referred to, or
considered by, individuals who are not officials, employees, or agents
of the United States in making the determination required under
paragraph (c) of this section. Unless such evidence is directly
considered by an official or employee of the bureau, and the
determination required under paragraph (c) of this section has been made
by an official or employee of the bureau, any unresolved dispute with
the debtor as to whether all or part of the debt is past-due or legally
enforceable must be referred to the bureau for ultimate administrative
disposition, and the bureau must directly notify the debtor of its
determination.
Subpart D--Administrative Offset
Authority: 31 U.S.C. 3701; 31 U.S.C. 3711; 31 U.S.C. 3716.
Source: 52 FR 52, Jan. 2, 1987, unless otherwise noted.
Sec. 5.30 Scope of regulations.
These regulations apply to the collection of debts owed to the
United States arising from transactions with the Department, or where a
request for an offset is received by the Department from another agency.
These regulations are consistent with the Federal Claims Collection
Standards on administrative offset issued jointly by the Department of
Justice and the General Accounting Office as set forth in 4 CFR 102.3.
[52 FR 52, Jan. 2, 1987, as amended at 53 FR 16703, May 11, 1988]
Sec. 5.31 Designation.
The heads of bureaus and offices and their delegates are designated
as designees of the Secretary of the Treasury authorized to perform all
the duties for which the Secretary is responsible under the foregoing
statutes: Provided, however, That no compromise of a claim shall be
effected or collection action terminated except upon recommendation of
the General Counsel
[[Page 163]]
or the appropriate bureau counsel or the designee of either.
Notwithstanding the foregoing proviso, no such recommendation shall be
required with respect to the termination of collection activity on any
claim in which the unpaid amount of the debt is $300 or less.
Sec. 5.32 Definitions.
(a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means
``withholding money payable by the United States Government to, or held
by the Government for, a person to satisfy a debt the person owes the
Government.
(b) Person includes a natural person or persons, profit or non-
profit corporation, partnership, association, trust, estate, consortium,
or other entity which is capable of owing a debt to the United States
Government except that agencies of the United States, or of any State or
local government shall be excluded.
Sec. 5.33 General.
(a) The Secretary or his or her designee, after attempting to
collect a debt from a person under section 3(a) of the Federal Claims
Collection Act of 1966, as amended (31 U.S.C. 3711(a)), may collect the
debt by administrative offset subject to the following:
(1) The debt is certain in amount; and
(2) It is in the best interests of the United States to collect the
debt by administrative offset because of the decreased costs of
collection and the acceleration in the payment of the debt;
(b) The Secretary, or his or her designee, may initiate
administrative offset with regard to debts owed by a person to another
agency of the United States Government, upon receipt of a request from
the head of another agency or his or her designee, and a certification
that the debt exists and that the person has been afforded the necessary
due process rights.
(c) The Secretary, or his or her designee, may request another
agency that holds funds payable to a Treasury debtor to offset the debt
against the funds held and will provide certification that:
(1) The debt exists; and
(2) The person has been afforded the necessary due process rights.
(d) If the six-year period for bringing action on a debt provided in
28 U.S.C. 2415 has expired, then administrative offset may be used to
collect the debt only if the costs of bringing such action are likely to
be less than the amount of the debt.
(e) No collection by administrative offset shall be made on any debt
that has been outstanding for more than 10 years unless facts material
to the Government's right to collect the debt were not known, and
reasonably could not have been known, by the official or officials
responsible for discovering and collecting such debt.
(f) These regulations do not apply to:
(1) A case in which administrative offset of the type of debt
involved is explicitly provided for or prohibited by another statute; or
(2) Debts owed by other agencies of the United States or by any
State or local government.
Sec. 5.34 Notification procedures.
Before collecting any debt through administrative offset, a notice
of intent to offset shall be sent to the debtor by certified mail,
return receipt requested, at the most current address that is available
to the Department. The notice shall provide:
(a) A description of the nature and amount of the debt and the
intention of the Department to collect the debt through administrative
offset;
(b) An opportunity to inspect and copy the records of the Department
with respect to the debt;
(c) An opportunity for review within the Department of the
determination of the Department with respect to the debt; and
(d) An opportunity to enter into a written agreement for the
repayment of the amount of the debt.
Sec. 5.35 Agency review.
(a) A debtor may dispute the existence of the debt, the amount of
debt, or the terms of repayment. A request to review a disputed debt
must be submitted to the Treasury official who provided notification
within 30 calendar days of the receipt of the written notice described
in Sec. 5.34.
[[Page 164]]
(b) If the debtor requests an opportunity to inspect or copy the
Department's records concerning the disputed claim, 10 business days
will be granted for the review. The time period will be measured from
the time the request for inspection is granted or from the time the copy
of the records is received by the debtor.
(c) Pending the resolution of a dispute by the debtor, transactions
in any of the debtor's account(s) maintained in the Department may be
temporarily suspended. Depending on the type of transaction the
suspension could preclude its payment, removal, or transfer, as well as
prevent the payment of interest or discount due thereon. Should the
dispute be resolved in the debtor's favor, the suspension will be
immediately lifted.
(d) During the review period, interest, penalties, and
administrative costs authorized under the Federal Claims Collection Act
of 1966, as amended, will continue to accrue.
Sec. 5.36 Written agreement for repayment.
A debtor who admits liability but elects not to have the debt
collected by administrative offset will be afforded an opportunity to
negotiate a written agreement for the repayment of the debt. If the
financial condition of the debtor does not support the ability to pay in
one lump-sum, reasonable installments may be considered. No installment
arrangement will be considered unless the debtor submits a financial
statement, executed under penalty of perjury, reflecting the debtor's
assets, liabilities, income, and expenses. The financial statement must
be submitted within 10 business days of the Department's request for the
statement. At the Department's option, a confess-judgment note or bond
of indemnity with surety may be required for installment agreements.
Notwithstanding the provisions of this section, any reduction or
compromise of a claim will be governed by 4 CFR part 103 and 31 CFR 5.3.
Sec. 5.37 Administrative offset.
(a) If the debtor does not exercise the right to request a review
within the time specified in Sec. 5.35 or if as a result of the review,
it is determined that the debt is due and no written agreement is
executed, then administrative offset shall be ordered in accordance with
these regulations without further notice.
(b) Requests for offset to other Federal agencies. The Secretary or
his or her designee may request that funds due and payable to a debtor
by another Federal agency be administratively offset in order to collect
a debt owed to the Department by that debtor. In requesting
administrative offset, the Department, as creditor, will certify in
writing to the Federal agency holding funds of the debtor:
(1) That the debtor owes the debt;
(2) The amount and basis of the debt; and
(3) That the agency has complied with the requirements of 31 U.S.C.
3716, its own administrative offset regulations and the applicable
provisions of 4 CFR part 102 with respect to providing the debtor with
due process.
(c) Requests for offset from other Federal agencies. Any Federal
agency may request that funds due and payable to its debtor by the
Department be administratively offset in order to collect a debt owed to
such Federal agency by the debtor. The Department shall initiate the
requested offset only upon:
(1) Receipt of written certification from the creditor agency:
(i) That the debtor owes the debt;
(ii) The amount and basis of the debt;
(iii) That the agency has prescribed regulations for the exercise of
administrative offset; and
(iv) That the agency has complied with its own administrative offset
regulations and with the applicable provisions of 4 CFR part 102,
including providing any required hearing or review.
(2) A determination by the Department that collection by offset
against funds payable by the Department would be in the best interest of
the United States as determined by the facts and circumstances of the
particular case, and that such offset would not otherwise be contrary to
law.
Sec. 5.38 Jeopardy procedure.
The Department may effect an administrative offset against a payment
to be made to the debtor prior to the
[[Page 165]]
completion of the procedures required by Secs. 5.34 and 5.34 of this
part if failure to take the offset would substantially jeopardize the
Department's ability to collect the debt, and the time before the
payment is to be made does not reasonably permit the completion of those
procedures. Such prior offset shall be promptly followed by the
completion of those procedures. Amounts recovered by offset but later
found not to be owed to the Department shall be promptly refunded.
PART 6--APPLICATIONS FOR AWARDS UNDER THE EQUAL ACCESS TO JUSTICE ACT--Table of Contents
Subpart A--General Provisions
Sec.
6.1 Purpose of these rules.
6.2 When the Act applies.
6.3 Proceedings covered.
6.4 Eligibility of applicants.
6.5 Standards for awards.
6.6 Allowable fees and expenses.
6.7 Delegations of authority.
Subpart B--Information Required From Applicants
6.8 Contents of application.
6.9 Net worth exhibit.
6.10 Documentation of fees and expenses.
6.11 When an application may be filed.
Subpart C--Procedures for Considering Applications
6.12 Filing and service of documents.
6.13 Answer to application.
6.14 Decision.
6.15 Agency review.
6.16 Judicial review.
6.17 Payment of award.
Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C.
504(c)(1)).
Source: 47 FR 20765, May 14, 1982, unless otherwise noted.
Subpart A--General Provisions
Sec. 6.1 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the Act'' in
this part), provides for the award of attorney fees and other expenses
to eligible individuals and entities who are parties to certain
administrative proceedings (called ``adversary adjudications'') before
agencies of the Government of the United States. An eligible party may
receive an award when it prevails over an agency, unless the agency's
position in the proceeding was substantially justified or special
circumstances make an award unjust. The rules in this part describe the
parties eligible for awards and the proceedings that are covered. They
also explain how to apply for awards, and the procedures and standards
that the Treasury Department will use to make them.
Sec. 6.2 When the Act applies.
The Act applies to any adversary adjudication pending before an
agency at any time between October 1, 1981 and September 30, 1984. This
includes proceedings begun before October 1, 1981, if final agency
action has not been taken before that date, and proceedings pending on
September 30, 1984, regardless of when they were initiated or when final
agency action occurs.
Sec. 6.3 Proceedings covered.
The Act applies to adversary adjudications required to be conducted
by the Treasury Department under 5 U.S.C. 554. Within the Treasury
Department, these proceedings are:
(a) Bureau of Alcohol, Tobacco and Firearms: (1) Permit proceedings
under the Federal Alcohol Administration Act (27 U.S.C. 204); (2) Permit
proceedings under the Internal Revenue Code of 1954 (26 U.S.C. 5171,
5271, 5713); (3) License and permit proceedings under the Federal
Explosives Laws (18 U.S.C. 843).
(b) Comptroller of the Currency:
All proceedings conducted under 12 CFR part 19, subpart A.
Sec. 6.4 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to the adversary
adjudication for which it seeks an award. The term ``party'' is defined
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions
of eligibility set out in this subpart and has complied with the
requirements in Subpart B of this part.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $1 million;
[[Page 166]]
(2) The sole owner of an unincorporated business who has a net worth
of not more than $5 million, including both personal and business
interests, and not more than 500 employees;
(3) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141(a)) with not more than 500
employees, or
(5) Any other partnership, corporation, association, or public or
private organization with a net worth of not more than $5 million and
not more than 500 employees.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
(d) An applicant who owns an unincorporated business will be
considered as an ``individual'' rather than a ``sole owner of an
unincorporated business'' if the matter in controversy is primarily
related to personal interests rather than to business interests.
(e) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be
included.
(f) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual or group of individuals, corporation or other entity that
directly or indirectly controls or owns a majority of the voting shares
of another business, or controls in any manner the election of a
majority of that business's board of directors, trustees, or other
persons exercising similar functions, will be considered an affiliate of
that business for purposes of this part, unless the adjudicative officer
determines that such treatment would be unjust and contrary to the
purposes of the Act in light of the actual relationship between the
afffiliated entities. In addition, the adjudicative officer may
determine that financial relationships of the applicant other than those
described in this paragraph constitute special circumstances that would
make an award unjust.
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
Sec. 6.5 Standards for awards.
(a) A prevailing applicant may receive an award for fees and
expenses incurred in connection with the final disposition of a
proceeding, unless (1) the position of the agency was substantially
justified, or (2) special circumstances make the award unjust. No
presumption arises that the agency's position was not substantially
justified simply because the agency did not prevail.
(b) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceeding or if special circumstances
make the award sought unjust.
Sec. 6.6 Allowable fees and other expenses.
(a) The following fees and other expenses are allowable under the
Act:
(1) Reasonable expenses of expert witnesses;
(2) Reasonable cost of any study, analysis, engineering report,
test, or project which the agency finds necessary for the preparation of
the party's case;
(3) Reasonable attorney or agent fees.
(b) The amount of fees awarded will be based upon the prevailing
market rates for the kind and quality of services furnished, except that
(1) Compensation for an expert witness will not exceed the highest
rate paid by the agency for expert witnesses; and
(2) Attorney or agent fees will not be in excess of $75 per hour.
Sec. 6.7 Delegations of authority.
The Director, Bureau of Alcohol, Tobacco and Firearms and the
Comptroller of the Currency are authorized to take final action on
matters pertaining to the Equal Access to Justice Act, 5 U.S.C. 504, in
proceedings listed in Sec. 6.3 under the respective bureau or office.
The Secretary of the Treasury may by order delegate authority to take
final
[[Page 167]]
action on matters pertaining to the Equal Access to Justice Act in
particular cases to other subordinate officials.
Subpart B--Information Required From Applicants
Sec. 6.8 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and
identify the position of the agency in the proceeding that the applicant
alleges was not substantially justified. The application shall state the
basis for the applicant's belief that the position was not substantially
justified. Unless the applicant is an individual, the application shall
also state the number of employees of the applicant and describe briefly
the type and purpose of its organization or business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $1 million (if an individual) or
$5 million (for all other applicants, including their affiliates).
However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall itemize the amount of fees and expenses
for which an award is sought.
(d) The application may also include any other matters that the
applicant wishes the agency to consider in determining whether and in
what amount an award should be made.
(e) The application shall be signed by the applicant or an
authorized officer with respect to the eligibility of the applicant and
by the attorney of the applicant with respect to fees and expenses
sought. It shall also contain or be accompanied by a written
verification under oath or under penalty of perjury that the information
provided in the application is true and correct.
(Approved by the Office of Management and Budget under control number
1512-0444, for applications filed with the Bureau of Alcohol, Tobacco
and Firearms)
(5 U.S.C. 552(a) (80 Stat. 383, as amended))
[47 FR 20765, May 14, 1982, as amended at 49 FR 14944, Apr. 16, 1984]
Sec. 6.9 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization, or
cooperative association must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
defined in Sec. 6.4(f)) when the proceeding was initiated. In the case
of national banking associations, ``net worth'' shall be considered to
be the total capital and surplus as reported, in conformity with the
applicable instructions and guidelines, on the bank's last Consolidated
Report of Condition filed before the initiation of the underlying
proceeding.
(b) The exhibit may be in any form convenient to the applicant that
provides full disclosure of the applicant's and its affiliates assets
and liabilities and is sufficient to determine whether the applicant
qualifies under the standards in this part. The adjudicative officer may
require an applicant to file additional information to determine its
eligibility for an award.
Sec. 6.10 Documentation of fees and expenses.
(a) The application shall be accompanied by full documentation of
the fees and expenses, including the cost of any study, engineering
report, test, or project, for which an award is sought.
(b) The documentation shall include an affidavit from any attorney,
agent, or expert witness representing or appearing in behalf of the
party, stating the actual time expended and the rate at which fees and
other expenses were computed and describing the specific services
performed.
(1) The affidavit shall state the services performed. In order to
establish
[[Page 168]]
the hourly rate, the affidavit shall state the hourly rate which is
billed and paid by the majority of clients during the relevant time
periods.
(2) If not hourly rate is paid by the majority of clients because,
for instance, the attorney or agent represents most clients on a
contingency basis, the attorney or agent shall provide information about
two attorneys or agents with similar experience, who perform similar
work, stating their hourly rate.
(c) The documentation shall also include a description of any
expenses for which reimbursement is sought and a statement of the
amounts paid and payable by the applicant or by any other person or
entity for the services provided.
(d) The adjudicative officer may require the applicant to provide
vouchers, receipts, or other substantiation for any expenses claimed.
Sec. 6.11 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed
in the proceeding but in no case later than 30 days after the agency's
final disposition of the proceeding.
(b) If review or reconsideration is sought or taken of a decision as
to which an appplicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy.
Subpart C--Procedures for Considering Applications
Sec. 6.12 Filing and service of documents.
Any application for an award or other pleading or document related
to an application shall be filed and served on all parties to the
proceeding in the same manner as other pleadings in the proceeding.
Sec. 6.13 Answer to application.
(a) Within 30 days after service of an application, counsel
representing the agency against which an award is sought shall file an
answer to the application.
(b) If agency counsel and the applicant believe that the issues in
the fee application can be settled, they may jointly file a statement of
their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 60 days and
further extensions may be granted by the adjudicative officer upon
request by agency counsel and the applicant.
(c) The answer shall explain any objections to the award requested
and identify the facts relied on in support of agency counsel's
position. If the answer is based on any alleged facts not already in the
record of the proceeding, agency counsel shall include with the answer
supporting affidavits.
Sec. 6.14 Decision.
The adjudicative officer shall issue an initial decision on the
application within 60 days after completion of proceedings on the
application. The decision shall include written findings and conclusions
on the applicant's eligibility and status as a prevailing party, and an
explanation of the reasons for any difference between the amount
requested and the amount awarded. The decision shall also include, if at
issue, findings on whether the agency's position was substantially
justified, whether the applicant unduly protracted the proceedings, or
whether special circumstances make an award unjust.
Sec. 6.15 Agency review.
Either the applicant or agency counsel may seek review of the
initial decision on the fee application, or the agency may decide to
review the decision on its own initiative. If neither the applicant nor
agency counsel seeks a review and the agncy does not take review on its
own initiative, the initial decision on the application shall become a
final decision of the agency 30 days after it is issued. Whether to
review a decision is a matter within the discretion of the agency. If
review is taken, the agency will issue a final decision on the
application or remand the application to the adjudicative officer for
further proceedings.
Sec. 6.16 Judicial review.
Judicial review of final agency decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).
[[Page 169]]
Sec. 6.17 Payment of award.
An applicant seeking payment of an award shall submit to the agency
a copy of the agency's final decision granting the award, accompanied by
a statement that the applicant will not seek review of the decision in
the United States courts. An applicant shall be paid the amount awarded
unless judicial review of the award or of the underlying decision of the
adversary adjudication has been sought by the applicant or any other
party to the proceeding.
PART 7--EMPLOYEE INVENTIONS--Table of Contents
Sec.
7.1 Purpose.
7.2 Responsibilities of the Department.
7.3 Responsibilities of heads of offices.
7.4 Responsibilities of the General Counsel.
7.5 Responsibilities of employees.
7.6 Effect of awards.
7.7 Appeals.
7.8 Delegation.
Authority: 80 Stat. 379; 5 U.S.C. 301, sec. 6, E.O. 10096; 3 CFR,
1949-1953 Comp., p. 292, as amended by E.O. 10930; 3 CFR, 1959-1963
Comp., p. 456.
Source: 33 FR 10088, July 13, 1968, unless otherwise noted.
Sec. 7.1 Purpose.
Provisions defining the right, title, and interest of the Government
in and to an invention made by a Government employee under various
circumstances and the duties of Government agencies with respect thereto
are set forth in Executive Order 10096, 15 FR 389, as amended (35 U.S.C.
266 note). Further definition of the circumstances under which the
Government will acquire the right to a patent in such an invention or a
nonexclusive, irrevocable, royalty-free license in the invention, and
the procedures for the determination of these interests, are set forth
in the regulations issued under that Executive order by the Patent
Office, 37 CFR part 100. The purpose of this part 7 is to implement for
the Treasury Department the foregoing Executive order and regulations of
the Patent Office by (a) bringing to the attention of Treasury employees
the law and procedure governing their rights to, and interest in,
inventions made by them, (b) defining responsibility within the
Department for making the necessary determinations, and, (c)
establishing internal procedures for action in conformity with the
Executive order and the Patent Office regulations.
Sec. 7.2 Responsibilities of the Department.
The responsibilities of the Treasury Department are to determine
initially (a) the occurrence of an invention by an employee, (b) his
rights in the invention and the rights of the Government therein, and
(c) whether patent protection will be sought in the United States by the
Department, and to furnish the required reports to the Patent Office.
Sec. 7.3 Responsibilities of heads of offices.
(a) Heads of bureaus or offices in the Department shall be
responsible for determining initially whether the results of research,
development, or other activity of an employee within that bureau or
office constitute an invention which falls within the purview of
Executive Order 10096, as amended, and is to be handled in accordance
with the regulations in this part.
(b) Heads of bureaus or offices are responsible for obtaining from
the employee the necessary information and, if the determination under
paragraph (a) of this section is affirmative, preparing on behalf of the
bureau or office a description of the invention and its relationship to
the employee's duties and work assignments.
(c) Heads of bureaus or offices, after such examination and
investigation as may be necessary, shall refer to the General Counsel
all information obtained concerning the invention and such determination
as the head of the bureau or office has made with respect to the
character of the activity as an invention. These reports shall include
any determination as to the giving of a cash award to the employee for
his performance relating to that invention.
Sec. 7.4 Responsibilities of the General Counsel.
(a) The General Counsel shall be responsible for determining,
subject to
[[Page 170]]
review by the Commissioner of Patents, the respective rights of the
Government and of the inventor in and to any invention made by an
employee of the Department.
(b) On the basis of the foregoing determination, the General Counsel
shall determine whether patent protection will be sought by the
Department for such an invention.
(c) The General Counsel will prepare and furnish to the Patent
Office the reports required by the regulations of that Office and will
serve as the liaison officer between the Department and the Commissioner
of Patents.
Sec. 7.5 Responsibilities of employees.
All employees are required to report to the heads of their bureaus
or offices any result of research, development, or other activity on
their part which may constitute an invention and the circumstances under
which this possible invention came into being.
Sec. 7.6 Effect of awards.
The acceptance by an employee of a cash award for performance which
constitutes an invention shall, in accordance with 5 U.S.C. 4502(c),
constitute an agreement that the use by the Government of the idea,
method, or device for which the award is made does not form the basis of
any further claim against the Government by the employee, his heirs or
assigns.
Sec. 7.7 Appeals.
(a) Any employee who is aggrieved by a determination made by the
head of his bureau or office under this part may obtain a review of the
determination by filing an appeal with the General Counsel within 30
days after receiving the notice of the determination complained of.
(b) Any employee who is aggrieved by a determination made by the
General Counsel under this part may obtain a review of the determination
by filing a written appeal with the Commissioner of Patents within 30
days after receiving notice of the determination complained of, or
within such longer period as the Commissioner may provide. The appeal to
the Commissioner shall be processed in accordance with the provisions in
the regulations of the Patent Office for an appeal from an agency
determination.
Sec. 7.8 Delegation.
The heads of bureaus or offices and the General Counsel may
delegate, as appropriate, the performance of the responsibilities
assigned to them under this part.
PART 8--PRACTICE BEFORE THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS--Table of Contents
Subpart A--General Requirements
Sec.
8.1 Scope.
8.2 Persons who may practice.
8.3 Conference and practice requirements.
8.4 Director of Practice.
8.5 Records.
8.6 Special orders.
Subpart B--Definitions
8.11 Meaning of terms.
Subpart C--Enrollment Procedures
8.21 Eligibility for enrollment.
8.22 Application for enrollment.
8.23 Denial of enrollment; appeal.
8.24 Enrollment cards.
8.25 Renewal of enrollment card.
8.26 Change in enrollment.
8.27 Enrollment registers.
8.28 Termination of enrollment.
8.29 Limited practice without enrollment.
Subpart D--Duties and Restrictions Relating to Practice
8.31 Furnishing of information.
8.32 Prompt disposition of pending matters.
8.33 Accuracy.
8.34 Knowledge of client's omission.
8.35 Assistance from disbarred or suspended persons and former Treasury
employees.
8.36 Practice by partners of Government employees.
8.37 Practice by former Government employees.
8.38 Notaries.
8.39 Fees.
8.40 Conflicting interests.
8.41 Solicitation.
8.42 Practice of law.
Subpart E--Disciplinary Proceedings
8.51 Authority to disbar or suspend.
8.52 Disreputable conduct.
8.53 Initiation of disciplinary proceedings.
8.54 Conferences.
[[Page 171]]
8.55 Contents of complaint.
8.56 Service of complaint and other papers.
8.57 Answer.
8.58 Supplemental charges.
8.59 Proof; variance; amendment of pleadings.
8.60 Motions and requests.
8.61 Representation.
8.62 Administrative Law Judge.
8.63 Hearings.
8.64 Evidence.
8.65 Depositions.
8.66 Transcript.
8.67 Proposed findings and conclusions.
8.68 Decision of Administrative Law Judge.
8.69 Appeal to the Secretary.
8.70 Decision of the Secretary.
8.71 Effect of disbarment or suspension.
8.72 Petition for reinstatement.
Authority: Sec. 3, 23 Stat. 258 (31 U.S.C. 1026); 5 U.S.C. 301, 500,
551-559; and Reorganization Plan No. 26 of 1950, 15 FR 4935, 64 Stat.
1280, as amended.
Source: 42 FR 33026, June 29, 1977, unless otherwise noted.
Subpart A--General Requirements
Sec. 8.1 Scope.
This part contains rules governing the recognition of attorneys,
certified public accountants, enrolled practitioners, and other persons
representing clients before the Bureau of Alcohol, Tobacco and Firearms.
Sec. 8.2 Persons who may practice.
(a) Attorneys. Any attorney who is not currently under suspension or
disbarment from practice before the Bureau of Alcohol, Tobacco and
Firearms, may practice before the Bureau upon filing a written
declaration with the Bureau, that he or she is currently qualified as an
attorney and is authorized to represent the particular party on whose
behalf he or she acts.
(b) Certified public accountants. Any certified public accountant
who is not currently under suspension or disbarment before the Bureau of
Alcohol, Tobacco and Firearms, may practice before the Bureau upon
filing a written declaration with the Bureau, that he or she is
currently qualified as a certified public accountant and is authorized
to represent the particular party on whose behalf he or she acts.
(c) Enrollment practitioners. Any person enrolled as a practitioner
under the provisions of subpart C of this part and who is not under
suspension or disbarment from enrollment may practice before the Bureau.
(d) Limited practitioners. Any person qualified for limited practice
without enrollment under the provisions of Sec. 8.29 may practice before
the Bureau.
(e) Restrictions on Government officers and employees. Any officer
or employee of the United States in the executive, legislative, or
judicial branch of the Government, or in any agency of the United
States, including the District of Columbia, who is otherwise eligible to
practice under the provisions of this part, may represent parties before
the Bureau when doing so in the conduct of his or her official duties. A
Government officer or employee may not otherwise practice before the
Bureau except that, subject to the requirements of 18 U.S.C. 205, he or
she may represent a member of his or her immediate family or a person or
estate for which he or she serves as guardian, executor, administrator,
trustee or other personal fiduciary. Member of Congress or Resident
Commissioners (elect or serving) may not practice before the Bureau in
connection with any matter for which they directly or indirectly seek
any compensation.
(f) Restrictions on State officers and employees. No officer or
employee of any State, or subdivision thereof, whose official
responsibilities require him or her to pass upon, investigate, or deal
with any State law or regulation concerning alcohol, tobacco, firearms,
explosives matters or wagering, may practice before the Bureau if his or
her official responsibility may disclose pertinent facts or information
relating to matters administered by the Bureau.
(g) Customhouse brokers. Customhouse brokers, licensed by the
Commissioner of Customs according to 19 CFR part 111, may represent a
party for whom they have acted as a customhouse broker before the Bureau
with respect to matters relating to the importation or exportation of
merchandise under customs or intenal revenue laws.
(Approved by the Office of Management and Budget under control number
1512-0418)
[[Page 172]]
(18 U.S.C. 203, 205; 5 U.S.C. 552(a) (80 Stat. 383, as amended))
[42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984]
Sec. 8.3 Conference and practice requirements.
Conference and practice requrements of the Bureau of Alcohol,
Tobacco and Firearms, including requirements for powers of attorney are
set forth in:
(a) 26 CFR part 601, subpart E (or those regulations as recodified
in 27 CFR part 71 subsequent to the effective date of these regulations,
31 CFR part 8) with respect to all representations before the Bureau
except those concerning license or permit proceedings;
(b) 27 CFR part 200 with respect to proceedings concerning permits
issued under the Federal Alcohol Administration Act or the Internal
Revenue Code;
(c) 27 CFR 47.44 with respect to proceedings concerning licenses
issued under the Arms Export Control Act (22 U.S.C. 2778);
(d) 27 CFR part 178, subpart E, with respect to proceedings
concerning licenses issued under the Gun Control Act of 1968 (18 U.S.C.
Chapter 44); and
(e) 27 CFR part 181, subpart E, with respect to proceedings
concerning licenses or permits issued under the Organized Crime Control
Act of 1970 (18 U.S.C. Chapter 40).
Sec. 8.4 Director of Practice.
(a) Appointment. The Secretary shall appoint the Director of
Practice. In the event of the absence of the Director of Practice or a
vacancy in that office, the Secretary shall designate an officer or
employee of the Treasury Department to act as Director of Practice.
(b) Duties. The Director of Practice, Office of the Secretary of the
Treasury, shall: Act upon appeals from decisions of the Director denying
applications for enrollment to practice before the Bureau; institute and
provide for the conduct of disciplinary proceedings relating to
attorneys, certified public accountants, and enrolled practitioners;
make inquiries with respect to matters under his or her jurisdiction;
and perform other duties as are necessary or appropriate to carry out
his or her functions under this part or as are prescribed by the
Secretary.
Sec. 8.5 Records.
(a) Availability. Registers of all persons admitted to practice
before the Bureau, and of all persons disbarred or suspended from
practice, which are required to be maintained by the director under the
provisions of Sec. 8.27, will be available for public inspection at the
Office of the Director. Other records may be disclosed upon specific
request in accordance with the disclosure regulations of the Bureau (27
CFR part 71) and the Office of the Secretary.
(b) Disciplinary proceedings. The Director, may grant a request by
an attorney, certified public accountant, or enrolled practitioner to
make public a hearing in a disciplinary proceeding, conducted under the
provisions of subpart E of this part concerning the attorney, certified
public accountant or enrolled practioner, and to make the record of the
proceeding available for public inspection by interested persons, if an
agreement is reached by stipulation in advance to prevent disclosure of
any information which is confidential, in accordance with applicable
laws and regulations.
Sec. 8.6 Special orders.
The secretary reserves the power to issue special orders as he or
she may deem proper in any cases within the scope of this part.
Subpart B--Definitions
Sec. 8.11 Meaning of terms.
As used in this part, terms shall have the meaning given in this
section. Words in the plural shall include the singular, and vice versa.
The terms include and including do not exclude things not enumerated
which are in the same general class.
Administrative Law Judge. The person appointed pursuant to 5 U.S.C.
3105, designated to preside over any administrative proceedings under
this part.
Attorney. A person who is a member in good standing of the bar of
the highest court of any State, possession, territory, Commonwealth, or
the District of Columbia.
Bureau. The Bureau of Alcohol, Tobacco and Firearms, the Department
of the Treasury, Washington, DC 20226.
[[Page 173]]
Certified public accountant. Any person who is qualified to practice
as a certified public accountant in any State, possession, territory,
Commonwealth, or the District of Columbia.
CFR. The Code of Federal Regulations.
Director. The Director, Bureau of Alcohol, Tobacco and Firearms, the
Department of the Treasury, Washington, DC.
Enrolled practitioner. Any person enrolled to practice before the
Bureau of Alcohol, Tobacco and Firearms pursuant to Subpart C of this
part.
Practice before the Bureau. This comprehends all matters connected
with presentation to the Bureau or any of its officers or employees
relating to a client's rights, privileges or liabilities under laws or
regulations administered by the Bureau. Presentations include the
preparation and filing of necessary documents, correspondence with and
communications to the Bureau, and the representation of a client at
conferences, hearings, and meetings. Preparation of a tax return,
appearance of an individual as a witness for any party, or furnishing
information at the request of the Bureau of any of its officers or
employees is not considered practice before the Bureau.
Secretary. The Secretary of the Treasury.
U.S.C. The United States Code.
Subpart C--Enrollment Procedures
Sec. 8.21 Eligibility for enrollment.
(a) General qualifications. The Director may grant enrollment to
practice to any person who has not engaged in conduct which would
justify the disbarment or suspension of any attorney, certified public
accountant, or enrolled practioner. Each person shall demonstrate to the
satisfaction of the Director that he or she possesses the necessary
technical qualifications to enable him or her to render valuable service
before the Bureau, and that he or she is otherwise competent to advise
and assists in the presentation of matters before the Bureau.
(b) Technical qualifications. The Director may grant enrollment to
practice only to persons possessing technical knowledge of the laws and
regulations administered by the Bureau.
(1) Minimum criteria required of an enrolled practioner will consist
of: 5 years employment with the Treasury Department in a responsible
position which would familiarize the person with applicable laws and
regualtions; or 5 years employment in a regulated industry in a
responsible position which would familiarize the person with applicable
laws and regulations; or possession of a law degree; or other
significant experience such as the prior respresentation of persons
before the Internal Revenue Service or the Bureau of Alcohol, Tobacco
and Firearms.
(2) An enrolled paractioner may demonstrate technical knowledge in
one or more of the several areas of laws and regulations administered by
the Bureau (alcohol, tobacco firearms, or explosives matters).
(c) Natural persons. Enrollment to practice may only be granted to
natural persons who have become 18 years of age.
(d) Attorneys, certified public accountants. Enrollment if not
available to persons who are attorneys or certified public accountants
who qualify to practice without enrollment under Sec. 8.2 (a) or (b).
[42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977]
Sec. 8.22 Application for enrollment.
(a) Information to be furnished. An applicant for enrollment to
practice shall state his or her name, address, and business address,
citizenship, and age on the application. The applicant shall also state
if he or she has ever been suspended or disbarred as an attorney or
certified public accountant, or if the applicant's right to practice has
ever been revoked by any court, commission, or administrative agency in
any jurisdiction. The applicant shall set forth his or her technical
qualifications as required by Sec. 8.21(b) which enable him or her to
render valuable service before the Bureau. The applicant shall indicate
which area or areas of Bureau matters in which he or she desires to
practice (alcohol, tobacco, firearms, or explosives matters).
(b) Fee. Each application for enrollment will be accompanied by a
check
[[Page 174]]
or money order in the amount of $25, payable to the Bureau of Alcohol,
Tobacco and Firearms. This fee will be retained by the United States
whether or not the applicant is granted enrollment. Agents who are
enrolled to practice before the Internal Revenue Service prior to
September 27, 1977, need not include this fee and should indicate their
enrollment number on the application.
(c) Execution under oath. All applications for enrollment will be
executed under oath or affirmation.
(d) Filing. Applications for enrollment will be filed with the
Assistant Director, Regulatory Enforcement, Bureau of Alcohol, Tobacco
and Firearms, 1200 Pensylvania Avenue NW., Washington, DC 20226.
(e) Additional information. The Director, as a condition to
consideration for enrollment, may require the applicant to file
additional information as necessary to determine if the applicant is
qualified. The Director shall, upon written request, afford an applicant
the opportunity to be heard with respect to his or her application for
enrollment.
(Approved by the Office of Management and Budget under control number
1512-0418)
(Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a); 5 U.S.C.
552(a) (80 Stat. 383, as amended))
[42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977, as amended at
49 FR 14944, Apr. 16, 1984]
Sec. 8.23 Denial of enrollment; appeal.
(a) The Director, in denying an application for enrollment, shall
inform the applicant as to the reasons. The applicant may, within 30
days after receipt of the notice of denial, file a written appeal
together with reasons in support thereof, with the Director of Practice.
The Director of Practice shall render a decision on the appeal as soon
as practicable.
(b) An applicant may, within 30 days after receipt of the decision
of the Director of Practice in sustaining a denial of enrollment, appeal
the decision to the Secretary.
Sec. 8.24 Enrollment cards.
The Director shall issue an enrollment card to each practitioner who
is enrolled to practice before the Bureau. Each enrollment card is valid
for a period of 5 years as long as the holder remains enrolled and in
good standing before the Bureau. Unless advised to the contrary by the
Director, any officer or employee of the Bureau may consider the holder
of an unexpired enrollment card to be authorized to practice before the
Bureau in the subject area or areas indicated upon the card (alcohol,
tobacco, firearms, or explosives matters).
Sec. 8.25 Renewal of enrollment card.
(a) Period of renewal. An enrolled practitioner may apply for
renewal of his or her enrollment card during a 12-month period prior to
the expiration of the enrollment card.
(b) Application. Each enrolled practitioner applying for a renewal
of enrollment shall apply to the Director. The enrolled practitioner
shall include in the application all information required by Sec. 8.22
except information relating to technical qualifications unless the
enrolled practitioner is applying for enrollment in a subject area or
areas in which he or she was not previously qualified to practice.
(c) Fee. Each application for renewal of enrollment will be
accompanied by a check or money order in the amount of $5, payable to
the Bureau of Alcohol, Tobacco and Firearms.
(Approved by the Office of Management and Budget under control number
1512-0418)
(5 U.S.C. 552(a) (80 Stat. 383, as amended))
[42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984]
Sec. 8.26 Change in enrollment.
(a) Change in area of practice. At any time during a period of
enrollment, an enrolled practitioner may apply to practice in a subject
area or areas in which he or she was not previously qualified to
practice (alcohol, tobacco, firearms, or explosives matters).
(b) Application. Each enrolled practitioner applying for a change in
enrollment shall apply to the Director. The enrolled practitioner shall
include in the application all information required by Sec. 8.22 but
shall include information relating to technical qualifications only in
those additional subject
[[Page 175]]
areas in which he or she is applying to practice.
(c) Fee. Each application for change in enrollment will be
accompanied by a check or money order in the amount of $5, payable to
the Bureau of Alcohol, Tobacco and Firearms.
(Approved by the Office of Management and Budget under control number
1512-0418)
(5 U.S.C. 552(a) (80 Stat. 383, as amended))
[42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984]
Sec. 8.27 Enrollment registers.
The Director shall maintain, for public inspection, a register of
all persons enrolled to practice before the Bureau and the subject areas
in which each person is enrolled to practice, a register of all persons
disbarred or suspended from practice, and a register of all persons
whose applications for enrollment before the Bureau have been denied.
Sec. 8.28 Termination of enrollment.
(a) Attorneys, certified public accountants. The enrollment of a
practitioner to whom an enrollment card has been issued will terminate
when that person becomes eligible to practice without enrollment under
Sec. 8.2 (a) or (b), and that person shall surrender his or her
enrollment card to the Director for cancellation.
(b) Expiration of enrollment. The enrollment of any person will
automatically terminate after the date indicated on the enrollment card
unless, during the 12-month period prior to the expiration date, that
person applies for renewal of enrollment with the Director as provided
in Sec. 8.25. In this case, the person may continue to practice before
the Bureau until his or her application has been finally determined.
Sec. 8.29 Limited practice without enrollment.
(a) General. Individuals may appear on their own behalf and may
otherwise appear without enrollment, providing they present satisfactory
identification, in the following classes of cases:
(1) An individual may represent another individual who is his or her
regular full-time employer, may represent a partnership of which he or
she is a member or a regular full-time employee, of may represent
without compensation a member of his or her immediate family.
(2) Corporations (including parent corporations, subsidiaries or
affiliated corporations), trusts, estates, associations, or organized
groups may be represented by bona fide officers or regular full-time
employees.
(3) Trusts, receiverships, guardianships, or estates may be
represented by their trustees, receivers, guardians, administrators,
executors, or their regular full-time employees.
(4) Any government unit, agency, or authority may be represented by
an officer or regular employee in the course of his or her official
duties.
(5) Unenrolled persons may participate in rulemaking as provided in
5 U.S.C. 553.
(b) Special appearances. The Director, subject to conditions he or
she deems appropriate, may authorize any person to represent a party
without enrollment, for the purpose of a particular matter.
Subpart D--Duties and Restrictions Relating to Practice
Sec. 8.31 Furnishing of information.
(a) To the Bureau. No attorney, certified public accountant, or
enrolled practitioner may neglect or refuse promptly to submit records
or information in any matter before the Bureau, upon proper and lawful
request by an authorized officer or employee of the Bureau, or may
interfere, or attempt to interfere, with any proper and lawful effort by
the Bureau or its officers or employees, to obtain the requested record
or information, unless he or she believes in good faith and on
reasonable grounds that the record or information is privileged or that
the request for, or effort to obtain, that record or information is of
doubtful legality.
(b) To the Director of Practice. It is the duty of an attorney or
certified public accountant, who practices before the Bureau, or
enrolled practitioner when requested by the Director of Practice, to
provide the Director of Practice with any information he or she may have
concerning violation of the regulations in this part by any person, and
[[Page 176]]
to testify thereto in any proceeding instituted under this part for the
disbarment or suspension of an attorney, certified public accountant, or
enrolled practitioner, unless he or she believes in good faith and on
reasonable grounds that that information is privileged or that the
request is of doubtful legality.
Sec. 8.32 Prompt disposition of pending matters.
No attorney, certified public accountant, or enrolled practitioner
may unreasonably delay the prompt disposition of any matter before the
Bureau.
Sec. 8.33 Accuracy.
Each attorney, certified public accountant, and enrolled
practitioner shall exercise due diligence in:
(a) Preparing or assisting in the preparation of, approving, and
filing returns, documents, affidavits, and other papers relating to
Bureau matters;
(b) Determining the correctness of any representations made by him
or her to the Bureau; and
(c) Determining the correctness of any information which he or she
imparts to a client with reference to any matter administered by the
Bureau.
Sec. 8.34 Knowledge of client's omission.
Each attorney, certified public accountant, or enrolled practitioner
who knows that a client has not complied with applicable law, or has
made an error in or omission from any document, affidavit, or other
paper which the law requires the client to execute, shall advise the
client promptly of the fact of such noncompliance, error, or omission.
Sec. 8.35 Assistance from disbarred or suspended persons and former Treasury employees.
No attorney, certified public accountant or enrolled practitioner
shall, in practice before the Bureau, knowingly and directly or
indirectly:
(a) Employ or accept assistance from any person who is under
disbarment or suspension from practice before any agency of the Treasury
Department;
(b) Accept employment as associate, correspondent, or subagent from,
or share fees with, any such person;
(c) Accept assistance in a specific matter from any person who
participated personally and substantially in the matter as an employee
of the Treasury Department.
[44 FR 47059, Aug. 10, 1979]
Sec. 8.36 Practice by partners of Government employees.
No partner of an officer or employee of the executive branch of the
U.S. Government, of any independent agency of the United States, or of
the District of Columbia, may represent anyone in any matter
administered by the Bureau in which the Government employee participates
or has participated personally and substantially as a Government
employee, or which is the subject of that employee's official
responsibility.
Sec. 8.37 Practice by former Government employees.
(a) Violation of law. No former officer or employee of the U.S.
Government, of any independent agency of the United States, or of the
District of Columbia, may represent anyone in any matter administered by
the Bureau if the representation would violate any of the laws of the
United States.
(b) Personal and substantial participation. No former officer or
employee of the executive branch of the U.S. Goverment, of any
independent agency of the United States, or of the District of Columbia,
may represent anyone with repect to any matter under the administration
of the Bureau, if he or she participated personally and substantially in
that matter a a Government employee.
(c) Official responsibility. No former officer or employee of the
executive branch of the U.S. Government, of any indepenednt agency of
the United States, or of the District of Columbia, may within one year
after his or her employment has ceased, appear personally as a
practitioner before the Bureau with respect to any matter administered
by the Bureau if that representation involves a specific matter under
the former employee's official responsibility as a Government employee,
within a one-year period prior to the termination of that
responsibility.
[[Page 177]]
(d) Aid or assistance. No former officer or employee of the Bureau,
who is eligible to practice before the Bureau, may aid or assist any
person in the representation of a specific matter in which the former
officer or employee participated personally and substantially as an
officer or employee of the Bureau.
(18 U.S.C. 207)
Sec. 8.38 Notaries.
No attorney, certified public accountant, or enrolled practitioner
may, with respect to any matter administered by the Bureau, take
acknowledgements, administer oaths, certify papers, or perform any
official act in connection with matters in which he or she is employed
as counsel, attorney, or practioner, or in which he or she may be in any
way interested before the Bureau.
(26 Op. Atty. Gen. 236)