CODE OF FEDERAL REGULATIONS 31Parts 0 to 199 Revised as of July 1, 2000 Money and Finance: Treasury Containing A Codification of documentsof general applicability and future effect As of July 1, 2000 With Ancillaries

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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 303 Finding Aids: Material Approved for Incorporation by Reference 381 Table of CFR Titles and Chapters 383 Alphabetical List of Agencies Appearing in the CFR 401 Redesignation Table 411 List of CFR Sections Affected 413

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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. 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 into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.

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 INCORPORATION BY REFERENCE

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What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:

(a) The incorporation will substantially reduce the volume of material published in the Federal Register.

(b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.

(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 containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, Washington DC 20408, or call (202) 523-4534.

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 Raymond A. Mosley, Director, Office of the Federal Register. July 1, 2000. 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, 2000.

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, Shelley C. Featherson was Chief Editor. The Code of Federal Regulations publication program is under the direction of Frances D. McDonald, assisted by Alomha S. Morris.

CFRORDR.FRM <LRH>31 CFR Subtitle A (7-1-00 Edition)</LRH> <RRH>Office of the Secretary of the Treasury</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 31—Money and Finance: Treasury</HD> <P>(This book contains parts 0 to 199)</P> </TITLEHD> <CFRTOC> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>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.</P> </EDNOTE> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT>SUBTITLE A—<E T="04">Office of the Secretary of the Treasury</E> </SUBJECT> <PG>0</PG> </CHAPTI> <SUBTI> <HD SOURCE="HED">SUBTITLE B—<E T="04">Regulations Relating to Money and Finance:</E> </HD> </SUBTI> <CHAPTI> <SUBJECT> <E T="04">chapter i</E>—Monetary Offices, Department of the Treasury</SUBJECT> <PG>56</PG> </CHAPTI> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>General Accounting Office: See 4 CFR Chapter I.</P> </CROSSREF> </CFRTOC> </CFRTITLE> <SUBTITLE> <PRTPAGE P="3"/> <HD SOURCE="HED">Subtitle A—Office of the</HD> <HD SOURCE="HED">Secretary of the Treasury</HD> <TOC> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>0</PT> <SUBJECT>Department of the Treasury Employee Rules of Conduct</SUBJECT> <PG>5</PG> <PT>1</PT> <SUBJECT>Disclosure of records</SUBJECT> <PG>10</PG> <PT>2</PT> <SUBJECT>National security information</SUBJECT> <PG>117</PG> <PT>3</PT> <SUBJECT>Claims regulations and indemnification of Department of Treasury employees</SUBJECT> <PG>143</PG> <PT>4</PT> <SUBJECT>Employees’ personal property claims</SUBJECT> <PG>146</PG> <PT>5</PT> <SUBJECT>Claims collection</SUBJECT> <PG>147</PG> <PT>6</PT> <SUBJECT>Applications for awards under the Equal Access to Justice Act</SUBJECT> <PG>162</PG> <PT>7</PT> <SUBJECT>Employee inventions</SUBJECT> <PG>166</PG> <PT>8</PT> <SUBJECT>Practice before the Bureau of Alcohol, Tobacco and Firearms</SUBJECT> <PG>167</PG> <PT>9</PT> <SUBJECT>Effects of imported articles on the national security</SUBJECT> <PG>181</PG> <PT>10</PT> <SUBJECT>Practice before the Internal Revenue Service</SUBJECT> <PG>184</PG> <PT>11</PT> <SUBJECT>Operation of vending facilities by the blind on Federal property under the control of the Department of the Treasury</SUBJECT> <PG>216</PG> <PT>12</PT> <SUBJECT>Restriction of sale and distribution of tobacco products</SUBJECT> <PG>217</PG> <PT>13</PT> <SUBJECT>Procedures for providing assistance to State and local governments in protecting foreign diplomatic missions</SUBJECT> <PG>218</PG> <PT>14</PT> <SUBJECT>Right to Financial Privacy Act</SUBJECT> <PG>223</PG> <PT>15</PT> <SUBJECT>Post employment conflict of interest</SUBJECT> <PG>224</PG> <PT>16</PT> <SUBJECT>Regulations implementing the Program Fraud Civil Remedies Act of 1986</SUBJECT> <PG>230</PG> <PT>17</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Department of the Treasury</SUBJECT> <PG>246<PRTPAGE P="4"/> </PG> <PT>18</PT> <SUBJECT>Officials designated to perform the functions and duties of certain offices in case of absence, disability, or vacancy</SUBJECT> <PG>252</PG> <PT>19</PT> <SUBJECT>Governmentwide debarment and suspension (nonprocurement) and governmentwide requirements for drug-free workplace (grants)</SUBJECT> <PG>253</PG> <PT>21</PT> <SUBJECT>New restrictions on lobbying</SUBJECT> <PG>271</PG> <PT>25</PT> <SUBJECT>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</SUBJECT> <PG>283</PG> <PT>26</PT> <SUBJECT>Environmental Review of Actions by Multilateral Development Bands (MDBs)</SUBJECT> <PG>293</PG> <PT>27</PT> <SUBJECT>Civil penalty assessment for misuse of Department of the Treasury names, symbols, etc.</SUBJECT> <PG>296</PG> </CHAPTI> </TOC> <CHAPTER> <LRH>31 CFR Subtitle A (7-1-00 Edition)</LRH> <RRH>Office of the Secretary of the Treasury</RRH> <PART> <PRTPAGE P="5"/> <EAR>Pt. 0</EAR> <HD SOURCE="HED">PART 0—DEPARTMENT OF THE TREASURY EMPLOYEE RULES OF CONDUCT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>0.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>0.102</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>0.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Responsibilities</HD> <SECTNO>0.104</SECTNO> <SUBJECT>Designated Agency Ethics Official and Alternate Designated Agency Ethics Official.</SUBJECT> <SECTNO>0.105</SECTNO> <SUBJECT>Deputy Ethics Official.</SUBJECT> <SECTNO>0.106</SECTNO> <SUBJECT>Bureau Heads.</SUBJECT> <SECTNO>0.107</SECTNO> <SUBJECT>Employees.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rules of Conduct</HD> <SECTNO>0.201</SECTNO> <SUBJECT>Political activity.</SUBJECT> <SECTNO>0.202</SECTNO> <SUBJECT>Strikes.</SUBJECT> <SECTNO>0.203</SECTNO> <SUBJECT>Gifts or gratuities from foreign governments.</SUBJECT> <SECTNO>0.204</SECTNO> <SUBJECT>Use of controlled substances and intoxicants.</SUBJECT> <SECTNO>0.205</SECTNO> <SUBJECT>Care of documents and data.</SUBJECT> <SECTNO>0.206</SECTNO> <SUBJECT>Disclosure of information.</SUBJECT> <SECTNO>0.207</SECTNO> <SUBJECT>Cooperation with official inquiries.</SUBJECT> <SECTNO>0.208</SECTNO> <SUBJECT>Falsification of official records.</SUBJECT> <SECTNO>0.209</SECTNO> <SUBJECT>Use of Government vehicles.</SUBJECT> <SECTNO>0.210</SECTNO> <SUBJECT>Conduct while on official duty or on Government property.</SUBJECT> <SECTNO>0.211</SECTNO> <SUBJECT>Soliciting, selling and canvassing.</SUBJECT> <SECTNO>0.212</SECTNO> <SUBJECT>Influencing legislation or petitioning Congress.</SUBJECT> <SECTNO>0.213</SECTNO> <SUBJECT>General conduct prejudicial to the Government.</SUBJECT> <SECTNO>0.214</SECTNO> <SUBJECT>Nondiscrimination.</SUBJECT> <SECTNO>0.215</SECTNO> <SUBJECT>Possession of weapons and explosives.</SUBJECT> <SECTNO>0.216</SECTNO> <SUBJECT>Privacy Act.</SUBJECT> <SECTNO>0.217</SECTNO> <SUBJECT>Personal financial interests.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Special Government Employees</HD> <SECTNO>0.301</SECTNO> <SUBJECT>Applicability of subpart B.</SUBJECT> <SECTNO>0.302</SECTNO> <SUBJECT>Service with other Federal agencies.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Advisers to the Department</HD> <SECTNO>0.401</SECTNO> <SUBJECT>Advisers to the Department.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 28535, June 1, 1995, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 0.101</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 0.102</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) Reassignment of work duties;</P> <P>(2) Disqualification from a particular assignment;</P> <P>(3) Divestment of a conflicting interest; or</P> <P>(4) Other appropriate action.</P> <P>(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 <PRTPAGE P="6"/>and after consideration of the employee's explanation and any mitigating factors. Further, disciplinary action may include any additional penalty prescribed by law.</P> </SECTION> <SECTION> <SECTNO>§ 0.103</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The following definitions are used throughout this part:</P> <P>(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 § 0.103.</P> <P>(b) Bureau means:</P> <P>(1) Bureau of Alcohol, Tobacco and Firearms;</P> <P>(2) Bureau of Engraving and Printing;</P> <P>(3) Bureau of the Public Debt;</P> <P>(4) Departmental Offices;</P> <P>(5) Federal Law Enforcement Training Center;</P> <P>(6) Financial Management Service;</P> <P>(7) Internal Revenue Service;</P> <P>(8) Legal Division;</P> <P>(9) Office of the Comptroller of the Currency;</P> <P>(10) Office of the Inspector General;</P> <P>(11) Office of Thrift Supervision;</P> <P>(12) United States Customs Service;</P> <P>(13) United States Mint;</P> <P>(14) United States Secret Service; and</P> <P>(15) Any organization designated as a bureau by the Secretary pursuant to appropriate authority.</P> <P>(c) <E T="03">Person</E> 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).</P> <P>(d) <E T="03">Regular employee</E> or <E T="03">employee</E> means an officer or employee of the Department of the Treasury but does not include a special Government employee.</P> <P>(e) <E T="03">Special Government employee</E> 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).</P> </SECTION> <SUBJGRP> <HD SOURCE="HED">Responsibilities</HD> <SECTION> <SECTNO>§ 0.104</SECTNO> <SUBJECT>Designated Agency Ethics Official and Alternate Designated Agency Ethics Official.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 0.105</SECTNO> <SUBJECT>Deputy Ethics Official.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 0.106</SECTNO> <SUBJECT>Bureau Heads.</SUBJECT> <P>Bureau heads or designees are required to:</P> <P>(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.</P> <P>(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 <PRTPAGE P="7"/>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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 0.107</SECTNO> <SUBJECT>Employees.</SUBJECT> <P>(a) Employees are required to:</P> <P>(1) Read and follow the rules and procedures contained in the Executive Branch-wide Standards, Treasury Supplemental Standards, and Rules;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Rules of Conduct</HD> <SECTION> <SECTNO>§ 0.201</SECTNO> <SUBJECT>Political activity.</SUBJECT> <P>(a) Employees may:</P> <P>(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</P> <P>(2) Vote as they choose and express their opinions on political subjects and candidates.</P> <P>(b) Employees may not use their official authority or influence to interfere with or affect election results.</P> <P>(c) Employees may be disqualified from employment for knowingly supporting or advocating the violent overthrow of our constitutional form of government.</P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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.</P> </NOTE> </SECTION> <SECTION> <SECTNO>§ 0.202</SECTNO> <SUBJECT>Strikes.</SUBJECT> <P>Employees shall not strike against the Government.</P> </SECTION> <SECTION> <SECTNO>§ 0.203</SECTNO> <SUBJECT>Gifts or gratuities from foreign governments.</SUBJECT> <P>(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 <PRTPAGE P="8"/>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.</P> <P>(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)).</P> <P>(c) As used in paragraph (b) of this section, <E T="03">Deposit with the Department</E> means delivery to the Department Gift Unit or other depository as authorized by the Treasury Directive on Foreign Gifts (Treasury Directive 61-04).</P> <P>(d) All foreign gifts must be reported as prescribed in the Treasury Directive on Foreign Gifts (Treasury Directive 61-04).</P> </SECTION> <SECTION> <SECTNO>§ 0.204</SECTNO> <SUBJECT>Use of controlled substances and intoxicants.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 0.205</SECTNO> <SUBJECT>Care of documents and data.</SUBJECT> <P>(a) Employees shall not conceal, remove, alter, destroy, mutilate or access documents or data in the custody of the Federal Government without proper authority.</P> <P>(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).</P> <P>(c) The term <E T="03">documents</E> includes, but is not limited to, any writing, recording, computer tape or disk, blueprint, photograph, or other physical object on which information is recorded.</P> </SECTION> <SECTION> <SECTNO>§ 0.206</SECTNO> <SUBJECT>Disclosure of information.</SUBJECT> <P>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)).</P> </SECTION> <SECTION> <SECTNO>§ 0.207</SECTNO> <SUBJECT>Cooperation with official inquiries.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 0.208</SECTNO> <SUBJECT>Falsification of official records.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 0.209</SECTNO> <SUBJECT>Use of Government vehicles.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 0.210</SECTNO> <SUBJECT>Conduct while on official duty or on Government property.</SUBJECT> <P>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 <PRTPAGE P="9"/>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).</P> </SECTION> <SECTION> <SECTNO>§ 0.211</SECTNO> <SUBJECT>Soliciting, selling and canvassing.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 0.212</SECTNO> <SUBJECT>Influencing legislation or petitioning Congress.</SUBJECT> <P>(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.</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 0.213</SECTNO> <SUBJECT>General conduct prejudicial to the Government.</SUBJECT> <P>Employees shall not engage in criminal, infamous, dishonest, or notoriously disgraceful conduct, or any other conduct prejudicial to the Government.</P> </SECTION> <SECTION> <SECTNO>§ 0.214</SECTNO> <SUBJECT>Nondiscrimination.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 0.215</SECTNO> <SUBJECT>Possession of weapons and explosives.</SUBJECT> <P>(a) Employees shall not possess firearms, explosives, or other dangerous or deadly weapons, either openly or concealed, while on Government property or official duty.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 0.216</SECTNO> <SUBJECT>Privacy Act.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 0.217</SECTNO> <SUBJECT>Personal financial interests.</SUBJECT> <P>(a) Employees may hold the following financial interests without violating 18 U.S.C. 208(a):</P> <P>(1) The stocks or bonds of a publicly traded corporation with a value of $1000 or less; and</P> <P>(2) The stocks or bonds in the investment portfolio of a diversified mutual fund in which an employee has invested.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Special Government Employees</HD> <SECTION> <SECTNO>§ 0.301</SECTNO> <SUBJECT>Applicability of subpart B.</SUBJECT> <P>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 § 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.</P> </SECTION> <SECTION> <PRTPAGE P="10"/> <SECTNO>§ 0.302</SECTNO> <SUBJECT>Service with other Federal agencies.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Advisers to the Department</HD> <SECTION> <SECTNO>§ 0.401</SECTNO> <SUBJECT>Advisers to the Department.</SUBJECT> <P>(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.</P> <P>(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 (§ 0.206), conduct (§ 0.211 and § 0.213), and gifts or gratuities from Foreign governments (§ 0.203).</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1</EAR> <HD SOURCE="HED">PART 1—DISCLOSURE OF RECORDS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Freedom of Information Act</HD> <SECHD>Sec.</SECHD> <SECTNO>1.1 </SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1.2 </SECTNO> <SUBJECT>Information made available.</SUBJECT> <SECTNO>1.3 </SECTNO> <SUBJECT>Publication in the <E T="04">Federal Register</E>.</SUBJECT> <SECTNO>1.4 </SECTNO> <SUBJECT>Public inspection and copying.</SUBJECT> <SECTNO>1.5 </SECTNO> <SUBJECT>Specific requests for other records.</SUBJECT> <SECTNO>1.6 </SECTNO> <SUBJECT>Business information.</SUBJECT> <SECTNO>1.7 </SECTNO> <SUBJECT>Fees for services.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Appendices to Subpart A</HD> <APP>Appendix A—Departmental Offices</APP> <APP>Appendix B—Internal Revenue Service</APP> <APP>Appendix C—United States Customs Service</APP> <APP>Appendix D—United States Secret Service</APP> <APP>Appendix E—Bureau of Alcohol, Tobacco and Firearms</APP> <APP>Appendix F—Bureau of Engraving and Printing</APP> <APP>Appendix G—Financial Management Service</APP> <APP>Appendix H—United States Mint</APP> <APP>Appendix I—Bureau of the Public Debt</APP> <APP>Appendix J—Office of the Comptroller of the Currency</APP> <APP>Appendix K—Federal Law Enforcement Training Center</APP> <APP>Appendix L—Office of Thrift Supervision</APP> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Other Disclosure Provisions</HD> <SECTNO>1.8</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1.9</SECTNO> <SUBJECT>Records not to be otherwise withdrawn or disclosed.</SUBJECT> <SECTNO>1.10</SECTNO> <SUBJECT>Oral information.</SUBJECT> <SECTNO>1.11</SECTNO> <SUBJECT>Testimony or the production of records in a court or other proceeding.</SUBJECT> <SECTNO>1.12</SECTNO> <SUBJECT>Regulations not applicable to official request.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Privacy Act</HD> <SECTNO>1.20</SECTNO> <SUBJECT>Purpose and scope of regulations.</SUBJECT> <SECTNO>1.21</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.22</SECTNO> <SUBJECT>Requirements relating to systems of records.</SUBJECT> <SECTNO>1.23</SECTNO> <SUBJECT>Publication in the <E T="04">Federal Register</E>—Notices of systems of records, general exemptions, specific exemptions, review of all systems.</SUBJECT> <SECTNO>1.24</SECTNO> <SUBJECT>Disclosure of records to person other than the individual to whom they pertain.</SUBJECT> <SECTNO>1.25</SECTNO> <SUBJECT>Accounting of disclosures.</SUBJECT> <SECTNO>1.26</SECTNO> <SUBJECT>Procedures for notification and access to records pertaining to individuals—format and fees for request for access.</SUBJECT> <SECTNO>1.27</SECTNO> <SUBJECT>Procedures for amendment of records pertaining to individuals—format, agency review and appeal from initial adverse agency determination.<PRTPAGE P="11"/> </SUBJECT> <SECTNO>1.28</SECTNO> <SUBJECT>Training, rules of conduct, penalties for non-compliance.</SUBJECT> <SECTNO>1.29</SECTNO> <SUBJECT>Records transferred to Federal Records Center or National Archives of the United States.</SUBJECT> <SECTNO>1.30</SECTNO> <SUBJECT>Application to system of records maintained by Government contractors.</SUBJECT> <SECTNO>1.31</SECTNO> <SUBJECT>Sale or rental of mailing lists.</SUBJECT> <SECTNO>1.32</SECTNO> <SUBJECT>Use and disclosure of social security numbers.</SUBJECT> <SECTNO>1.34</SECTNO> <SUBJECT>Guardianship.</SUBJECT> <SECTNO>1.35</SECTNO> <SUBJECT>Information forms.</SUBJECT> <SECTNO>1.36</SECTNO> <SUBJECT>Systems exempt in whole or in part from provisions of 5 U.S.C. 552a and this part.</SUBJECT> <SUBJGRP> <HD SOURCE="HED">Appendices to Subpart C</HD> <APP>Appendix A—Departmental Offices</APP> <APP>Appendix B—Internal Revenue Service</APP> <APP>Appendix C—United States Customs Service</APP> <APP>Appendix D—United States Secret Service</APP> <APP>Appendix E—Bureau of Alcohol, Tobacco and Firearms</APP> <APP>Appendix F—Bureau of Engraving and Printing</APP> <APP>Appendix G—Financial Management Service</APP> <APP>Appendix H—United States Mint</APP> <APP>Appendix I—Bureau of the Public Debt</APP> <APP>Appendix J—Office of the Comptroller of the Currency</APP> <APP>Appendix K—Federal Law Enforcement Training Center</APP> <APP>Appendix L—Office of Thrift Supervision</APP> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 26305, July 14, 1987, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Freedom of Information Act</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>65 FR 40504, June 30, 2000, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) <E T="03">Purpose and scope. </E>(1) This subpart contains the regulations of the Department of the Treasury implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended by the Electronic Freedom of Information Act Amendments of 1996. The regulations set forth procedures for requesting access to records maintained by the Department of the Treasury. These regulations apply to all bureaus 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 bureaus or their officials, employees, or records. Persons interested in the records of a particular bureau should also consult the appendix to this subpart that pertains to that bureau. The head of each bureau is hereby authorized to substitute the officials designated and change the addresses specified in the appendix to this subpart applicable to the bureau. The bureaus of the Department of the Treasury for the purposes of this subpart are:</P> <P>(i) The Departmental Offices, which include the offices of:</P> <P>(A) The Secretary of the Treasury, including immediate staff;</P> <P>(B) The Deputy Secretary of the Treasury, including immediate staff;</P> <P>(C) The Chief of Staff, including immediate staff;</P> <P>(D) The Executive Secretary and all offices reporting to such official, including immediate staff;</P> <P>(E) The Under Secretary of the Treasury for International Affairs and all offices reporting to such official, including immediate staff;</P> <P>(F) The Under Secretary of the Treasury for Domestic Finance and all offices reporting to such official, including immediate staff;</P> <P>(G) The Under Secretary for Enforcement and all offices reporting to such official, including immediate staff;</P> <P>(H) The Assistant Secretary of the Treasury for Financial Institutions and all offices reporting to such official, including immediate staff;</P> <P>(I) The Assistant Secretary of the Treasury for Economic Policy and all offices reporting to such official, including immediate staff;</P> <P>(J) The Fiscal Assistant Secretary and all offices reporting to such official, including immediate staff;</P> <P>(K) The General Counsel and all offices reporting to such official, including immediate staff; except legal counsel to the components listed in paragraphs (a)(1)(i)(L), and (a)(1)(i)(S), and (a)((1)(ii) through (xii) of this section;</P> <P>(L) The Inspector General and all offices reporting to such official, including immediate staff;</P> <P>(M) The Assistant Secretary of the Treasury for International Affairs and <PRTPAGE P="12"/>all offices reporting to such official, including immediate staff;</P> <P>(N) The Assistant Secretary of the Treasury for Legislative Affairs and Public Liaison and all offices reporting to such official, including immediate staff;</P> <P>(O) The Assistant Secretary of the Treasury for Management and Chief Financial Officer and all offices reporting to such official, including immediate staff;</P> <P>(P) The Assistant Secretary of the Treasury for Public Affairs and all offices reporting to such official, including immediate staff;</P> <P>(Q) The Assistant Secretary of the Treasury for Tax Policy and all offices reporting to such official, including immediate staff;</P> <P>(R) The Treasurer of the United States, including immediate staff;</P> <P>(S) The Treasury Inspector General for Tax Administration and all offices reporting to such official, including immediate staff.</P> <P>(ii) The Bureau of Alcohol, Tobacco and Firearms.</P> <P>(iii) The Office of the Comptroller of the Currency.</P> <P>(iv) The United States Customs Service.</P> <P>(v) The Bureau of Engraving and Printing.</P> <P>(vi) The Federal Law Enforcement Training Center.</P> <P>(vii) The Financial Management Service.</P> <P>(viii) The Internal Revenue Service.</P> <P>(ix) The United States Mint.</P> <P>(x) The Bureau of the Public Debt.</P> <P>(xi) The United States Secret Service.</P> <P>(xii) The Office of Thrift Supervision.</P> <P>(2) For purposes of this subpart, the office of the legal counsel for the components listed in paragraphs (a)(1)(ii) through (xii) of this section are to be considered a part of their respective bureaus. 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 in paragraphs (a)(1)(i) through (xii) of this section, shall be deemed a part of the Departmental Offices for the purpose of making requests for records under this subpart.</P> <P>(b) <E T="03">Definitions. </E>As used in this subpart, the following terms shall have the following meanings:</P> <P>(1) <E T="03">Agency</E> has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C. 552(f).</P> <P>(2) <E T="03">Appeal</E> means a request for a review of an agency's determination with regard to a fee waiver, category of requester, expedited processing, or denial in whole or in part of a request for access to a record or records.</P> <P>(3) <E T="03">Bureau</E> means an entity of the Department of the Treasury that is authorized to act independently in disclosure matters.</P> <P>(4) <E T="03">Business information</E> means trade secrets or other commercial or financial information.</P> <P>(5) <E T="03">Business submitter</E> means any entity which provides business information to the Department of the Treasury or its bureaus and which has a proprietary interest in the information.>(6) <E T="03">Computer software</E> means tools by which records are created, stored, and retrieved. Normally, computer software, including source code, object code, and listings of source and object codes, regardless of medium, are not agency records. However, when data are embedded within the software and cannot be extracted without the software, the software may have to be treated as an agency record. Proprietary (or copyrighted) software is not an agency record.</P> <P>(7) <E T="03">Confidential commercial information</E> means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.</P> <P>(8) <E T="03">Duplication</E> refers to the process of making a copy of a record 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 T="03">e.g.</E>, magnetic tape or disk), among others.</P> <P>(9) <E T="03">Electronic records</E> means those records and information which are created, stored, and retrievable by electronic means. This ordinarily does not include computer software, which is a tool by which to create, store, or retrieve electronic records.<PRTPAGE P="13"/> </P> <P>(10) <E T="03">Request</E> means any request for records made pursuant to 5 U.S.C. 552(a)(3).</P> <P>(11) <E T="03">Requester</E> means any person who makes a request for access to records.</P> <P>(12) <E T="03">Responsible official</E> means a disclosure officer or the head of the organizational unit having immediate custody of the records requested, or an official designated by the head of the organizational unit.</P> <P>(13) <E T="03">Review,</E> for fee purposes, refers to the process of examining records located in response to a commercial use request to determine whether any portion of any record located is permitted to be withheld. It also includes processing any records for disclosure; <E T="03">e.g.</E>, doing all that is necessary to excise them and otherwise prepare them for release.</P> <P>(14) <E T="03">Search</E> 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 records. Searches may be done manually or by automated means.</P> </SECTION> <SECTION> <SECTNO>§ 1.2</SECTNO> <SUBJECT>Information made available.</SUBJECT> <P>(a) <E T="03">General.</E> The FOIA (5 U.S.C. 552) provides for access to information and records developed or maintained by Federal agencies. The provisions of section 552 are intended to assure the right of the public to information. Generally, this section divides agency information into three major categories and provides methods by which each category of information is to be made available to the public. The three major categories of information are as follows:</P> <P>(1) Information required to be published in the <E T="04">Federal Register</E> (see § 1.3);</P> <P>(2) Information required to be made available for public inspection and copying or, in the alternative, to be published and offered for sale (see § 1.4); and</P> <P>(3) Information required to be made available to any member of the public upon specific request (see § 1.5).</P> <P>(b) Subject only to the exemptions and exclusions set forth in 5 U.S.C. 552(b) and (c), any person shall be afforded access to information or records in the possession of any bureau of the Department of the Treasury, subject to the regulations in this subpart and any regulations of a bureau implementing or supplementing them.</P> <P>(c) <E T="03">Exemptions.</E> (1) The disclosure requirements of 5 U.S.C. 552(a) do not apply to certain matters which are exempt under 5 U.S.C. 552(b); nor do the disclosure requirements apply to certain matters which are excluded under 5 U.S.C. 552(c).</P> <P>(2) Even though an exemption described in 5 U.S.C. 552(b) may be applicable to the information or records requested, a Treasury bureau may, if not precluded by law, elect under the circumstances of that request not to apply the exemption. The fact that the exemption is not applied by a bureau in response to a particular request shall have no precedential significance in processing other requests, but is merely an indication that, in the processing of the particular request, the bureau finds no necessity for applying the exemption.</P> </SECTION> <SECTION> <SECTNO>§ 1.3</SECTNO> <SUBJECT>Publication in the Federal Register.</SUBJECT> <P>(a) <E T="03">Requirement. </E>Subject to the application of the exemptions and exclusions in 5 U.S.C. 552(b) and (c) and subject to the limitations provided in 5 U.S.C. 552(a)(1), each Treasury bureau shall, in conformance with 5 U.S.C. 552(a)(1), separately state, publish and maintain current in the <E T="04">Federal Register</E> for the guidance of the public the following information with respect to that bureau:</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(4) Substantive rules of general applicability adopted as authorized by law, <PRTPAGE P="14"/>and statements of general policy or interpretations of general applicability formulated and adopted by the bureau; and</P> <P>(5) Each amendment, revision, or repeal of matters referred to in paragraphs (a)(1) through (4) of this section.</P> <P>(b) <E T="03">The United States Government Manual. </E>The functions of each bureau are summarized in the description of the Department and its bureaus in the United States Government Manual, which is issued annually by the Office of the Federal Register.</P> </SECTION> <SECTION> <SECTNO>§ 1.4</SECTNO> <SUBJECT>Public inspection and copying.</SUBJECT> <P>(a) <E T="03">In general. </E>Subject to the application of the exemptions and exclusions described in 5 U.S.C. 552(b) and (c), each Treasury bureau shall, in conformance with 5 U.S.C. 552(a)(2), make available for public inspection and copying, or, in the alternative, promptly publish and offer for sale the following information with respect to the bureau:</P> <P>(1) Final opinions, including concurring and dissenting opinions, and orders, made in the adjudication of cases;</P> <P>(2) Those statements of policy and interpretations which have been adopted by the bureau but are not published in the <E T="04">Federal Register</E>;</P> <P>(3) Its administrative staff manuals and instructions to staff that affect a member of the public;</P> <P>(4) Copies of all records, regardless of form or format, which have been released to any person under 5 U.S.C. 552(a)(3), and which the bureau determines have become or are likely to become the subject of subsequent requests for substantially the same records because they are clearly of interest to the public at large. The determination that records have become or may become the subject of subsequent requests shall be made by the Responsible Official (as defined at § 1.1(b)(12)).</P> <P>(5) A general index of the records referred to in paragraph (a)(4) of this section.</P> <P>(b) <E T="03">Information made available by computer telecommunications. </E>For records required to be made available for public inspection and copying pursuant to 5 U.S.C. 552(a)(2) (paragraphs (a)(1) through (4) of this section) which are created on or after November 1, 1996, as soon as practicable but no later than one year after such records are created, each bureau shall make such records available on the Internet.</P> <P>(c) <E T="03">Deletion of identifying details. </E>To prevent a clearly unwarranted invasion of personal privacy, or pursuant to an exemption in 5 U.S.C. 552(b), a Treasury bureau may delete information contained in any matter described in paragraphs (a)(1) through (4) of this section before making such matters available for inspection or publishing it. The justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in 5 U.S.C. 552(b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made.</P> <P>(d) <E T="03">Public reading rooms. </E>Each bureau of the Department of the Treasury shall make available for public inspection and copying, in a reading room or otherwise, the material described in paragraphs (a)(1) through (5) of this section. Fees for duplication shall be charged in accordance with § 1.7. See the appendices to this subpart for the location of established bureau reading rooms.</P> <P>(e) <E T="03">Indexes. </E>(1) Each bureau of the Department of the Treasury shall maintain and make available for public inspection and copying current indexes identifying any material described in paragraphs (a)(1) through (3) of this section. In addition, each bureau shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplement unless the head of each bureau (or a delegate) determines by order published in the <E T="04">Federal Register</E> that the publication would be unnecessary and impractical, in which case the bureau shall nonetheless provide copies of the index on request at a cost not to exceed the direct cost of duplication.</P> <P>(2) Each bureau shall make the index referred to in paragraph (a)(5) of this section available on the Internet by December 31, 1999.</P> </SECTION> <SECTION> <PRTPAGE P="15"/> <SECTNO>§ 1.5</SECTNO> <SUBJECT>Specific requests for other records.</SUBJECT> <P>(a) <E T="03">In general.</E> (1) Except for records made available under 5 U.S.C. 552(a)(1) and (a)(2), but subject to the application of the exemptions and exclusions described in 5 U.S.C. 552(b) and (c), each bureau 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 conform in every respect with the rules and procedures of this subpart and the applicable bureau's appendix to this subpart. Any request or appeal from the initial denial of a request that does not comply with the requirements in this subpart will not be considered subject to the time constraints of paragraphs (h), (i), and (j) of this section, unless and until the request is amended to comply. Bureaus shall promptly advise the requester in what respect the request or appeal is deficient so that it may be amended and resubmitted for consideration in accordance with this subpart. If a requester does not respond within 30 days to a communication from a bureau to amend the request in order for it to be in conformance with this subpart, the request file will be considered closed. When the request conforms with the requirements of this subpart, bureaus shall make every reasonable effort to comply with the request within the time constraints. If the description of the record requested is of a type that is not maintained by the bureau, the requester shall be so advised and the request shall be returned to the requester.</P> <P>(2) This subpart applies only to records in the possession or control of the bureau at the time of the request. Records considered to be responsive to the request are those in existence on or before the date of receipt of the request by the appropriate bureau official. Requests for the continuing production of records created after the date of the appropriate bureau official's receipt of the request shall not be honored. Bureaus shall provide the responsive record or records in the form or format requested if the record or records are readily reproducible by the bureau in that form or format. Bureaus shall make reasonable efforts to maintain their records in forms or formats that are reproducible for the purpose of disclosure. For purposes of this section, <E T="03">readily reproducible</E> means, with respect to electronic format, a record or records that can be downloaded or transferred intact to a floppy disk, compact disk (CD), tape, or other electronic medium using equipment currently in use by the office or offices processing the request. Even though some records may initially be readily reproducible, the need to segregate exempt from nonexempt records may cause the releasable material to not be readily reproducible.</P> <P>(3) Requests for information classified pursuant to Executive Order 12958, “Classified National Security Information,” require the responsible bureau to review the information to determine whether it continues to warrant classification. Information which no longer warrants classification under the Executive Order's criteria shall be declassified and made available to the requester, unless the information is otherwise exempt from disclosure.</P> <P>(4) When a bureau receives five or more requests for substantially the same records, it shall place those requests in front of an existing request backlog that the responsible official may have. Upon completion of processing, the released records shall be made available in the bureau's public reading room, and if created on or after November 1, 1996, shall be made available in the electronic reading room of the bureau's web site.</P> <P>(b) <E T="03">Form of request.</E> In order to be subject to the provisions of this section, the following must be satisfied.</P> <P>(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 this subpart.</P> <P>(2) The request shall indicate whether the requester is a commercial user, an educational institution, non-commercial scientific institution, representative of the news media, or “other” requester, subject to the fee provisions described in § 1.7. In order for the Department to determine the proper category for fee purposes as defined in this section, a request for <PRTPAGE P="16"/>records shall also state how the records released will be used. This information shall not be used to determine the releasibility of any record or records. A determination of the proper category of requester shall be based upon a review of the requester's submission and the bureau's own records. Where a bureau 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, bureaus should seek additional clarification before assigning the request to a specific category. The categories of requesters are defined as follows:</P> <P>(i) <E T="03">Commercial.</E> 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, which can include furthering those interests through litigation. The bureaus may determine from the use specified in the request that the requester is a commercial user.</P> <P>(ii) <E T="03">Educational institution</E>. 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. This category does not include requesters wanting records for use in meeting individual academic research or study requirements.</P> <P>(iii) <E T="03">Non-commercial scientific institution.</E> This refers to an institution that is not operated on a “commercial” basis as that term is defined in paragraph (b)(2)(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.</P> <P>(iv) <E T="03">Representative of the news media.</E> 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 <E T="03">news</E> 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. 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 bureaus may also look to the past publication record of a requester in making this determination.</P> <P>(v) <E T="03">“Other” Requester.</E> This refers to a requester who does not fall within any of the previously described categories.</P> <P>(3) The request must be properly addressed to the bureau that maintains the record. The functions of each bureau are summarized in <E T="03">The United States Government Manual</E> which is issued annually and is available from the Superintendent of Documents. Both the envelope and the request itself should be clearly marked “Freedom of Information Act Request.” See the appendices to this subpart for the office or officer to which requests shall be addressed for each bureau. A requester in need of guidance in defining a request or determining the proper bureau to which a request should be sent may contact Disclosure Services at 202/622-0930, or may write to Disclosure Services, Department of the Treasury, 1500 Pennsylvania Avenue, NW, Washington, DC 20220. Requesters may access the “FOIA Home Page” at the Department of the Treasury World Wide Web site at: http://www.treas.gov.</P> <P>(4) The request must reasonably describe the records in accordance with paragraph (d) of this section.</P> <P>(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. </P> <P>(6) The request must state whether the requester wishes to inspect the records or desires to have a copy made <PRTPAGE P="17"/>and furnished without first inspecting them.</P> <P>(7) The request must state the firm agreement of the requester to pay the fees for search, duplication, and review as may ultimately be determined in accordance with § 1.7. The agreement may state the upper limit (but not less than $25) that the requester is willing to pay for processing the request. A request that fees be waived or reduced may accompany the agreement to pay fees and shall be considered to the extent that such request is made in accordance with § 1.7(d) and provides supporting information to be measured against the fee waiver standard set forth in § 1.7(d)(1). The requester shall be notified in writing of the decision to grant or deny the fee waiver. A requester shall be asked to provide an agreement to pay fees when the request for a fee waiver or reduction is denied and the initial request for records does not include such agreement. If a requester has an outstanding balance of search, review, or duplication fees due for FOIA request processing, the requirements of this paragraph are not met until the requester has remitted the outstanding balance due.</P> <P>(c) <E T="03">Requests for records not in control of bureau; referrals; consultations.</E> (1) When a requested record is in the possession or under the control of a bureau of the Department other than the office to which the request is addressed, the request for the record shall be transferred to the appropriate bureau and the requester notified. This referral shall not be considered a denial of access within the meaning of these regulations. The bureau of the Department to which 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 (h)(1) of this section shall begin when the referral is received by the designated office or officer of the bureau.</P> <P>(2) When a requested record has been created by an agency or Treasury bureau other than the Treasury bureau possessing the record, the bureau having custody of the record shall refer the record to the originating agency or Treasury bureau for a direct response to the requester. The requester shall be informed of the referral unless otherwise instructed by the originating agency. This is not a denial of a FOIA request; thus no appeal rights accrue to the requester.</P> <P>(3) When a FOIA request is received for a record created by a Treasury bureau that includes information originated by another bureau of the Department of the Treasury or another agency, the record shall be referred to the originating agency or bureau for review and recommendation on disclosure. The agency or bureau shall respond to the referring office. The Treasury bureau shall not release any such records without prior consultation with the originating bureau or agency.</P> <P>(4) In certain instances and at the discretion of the Departmental Offices, requests having impact on two or more bureaus of the Department may be coordinated by the Departmental Offices.</P> <P>(d) <E T="03">Reasonable description of records.</E> The request for records must describe the records in reasonably sufficient detail to enable employees who are familiar with the subject area of the request to locate the records without placing an unreasonable burden upon the Department. 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. If the Department determines that the request does not reasonably describe the records sought, the requester shall be given an opportunity to provide additional information. Such opportunity may, when necessary, involve a discussion 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 to improperly withhold records from the public.</P> <P>(e) <E T="03">Requests for expedited processing.</E> (1) When a request for records includes a request for expedited processing, both the envelope and the request itself must be clearly marked, “Expedited Processing Requested.”</P> <P>(2) Records will be processed as soon as practicable when a requester asks for expedited processing in writing and is granted such expedited treatment by the Department. The requester must <PRTPAGE P="18"/>demonstrate a compelling need for expedited processing of the requested records. A compelling need is defined as follows:</P> <P>(i) Failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual. The requester shall fully explain the circumstances warranting such an expected threat so that the Department may make a reasoned determination that a delay in obtaining the requested records could pose such a threat; or</P> <P>(ii) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. A person “primarily engaged in disseminating information” does not include individuals who are engaged only incidentally in the dissemination of information. The standard of “urgency to inform” requires that the records requested pertain to a matter of current exigency to the American public and that delaying a response to a request for records would compromise a significant recognized interest to and throughout the American general public. The requester must adequately explain the matter or activity and why the records sought are necessary to be provided on an expedited basis.</P> <P>(3) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by the requester to be true and correct to the best of his or her knowledge and belief. The statement must be in the form prescribed by 28 U.S.C. 1746, “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on [date].”</P> <P>(4) Upon receipt by the appropriate bureau official, a request for expedited processing shall be considered and a determination as to whether to grant or deny the request for expedited processing shall be made, and the requester notified, within 10 calendar days of the date of the request. However, in no event shall the bureau have fewer than five days (excluding Saturdays, Sundays, and legal public holidays) from the date of receipt of the request for such processing. The determination to grant or deny a request for expedited processing may be made solely on the information contained in the initial letter requesting expedited treatment.</P> <P>(5) Appeals of initial determinations to deny expedited processing must be made within 10 calendar days of the date of the initial letter of determination denying expedited processing. Both the envelope and the appeal itself shall be clearly marked, “Appeal for Expedited Processing.” </P> <P>(6) An appeal determination regarding expedited processing shall be made, and the requester notified, within 10 days (excluding Saturdays, Sundays, and legal public holidays) from the date of receipt of the appeal.</P> <P>(f) <E T="03">Date of receipt of request. </E>A request for records shall be considered to have been received on the date on which a complete request containing the information required by paragraph (b) of this section has been received. A determination that a request is deficient in any respect is not a denial of access, and such determinations are not subject to administrative appeal. Requests shall be stamped with the date of receipt by the office prescribed in the appropriate appendix. As soon as the date of receipt has been established, the requester shall be so informed and shall also be advised when to expect a response. The acknowledgment of receipt requirement shall not apply if a disclosure determination will be issued prior to the end of the 20-day time limit.</P> <P>(g) <E T="03">Search for record requested. </E>Department of the Treasury employees shall search to identify and locate requested records, including records stored at Federal Records Centers. Searches for records maintained in electronic form or format may require the application of codes, queries, or other minor forms of programming to retrieve the requested records. Wherever reasonable, searches shall be done by electronic means. However, searches of electronic records are not required when such searches would significantly interfere with the operation of a Treasury automated information system or would require unreasonable effort to conduct. The Department of the Treasury is not required under 5 U.S.C. 552 to tabulate or compile information for the purpose <PRTPAGE P="19"/>of creating a record or records that do not exist.</P> <P>(h) <E T="03">Initial determination. </E>(1) <E T="03">In general. </E>The officers designated in the appendices to this part shall make initial determinations either to grant or to deny in whole or in part requests for records. Such officers shall respond in the approximate order of receipt of the requests, to the extent consistent with sound administrative practice. These determinations shall be made and the requester notified within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the date of receipt of the request, as determined in accordance with paragraph (f) of this section, unless the designated officer invokes an extension pursuant to paragraph (j)(1) of this section or the requester otherwise agrees to an extension of the 20-day time limitation.</P> <P>(2) <E T="03">Granting of request. </E>If the request is granted in full or in part, and if the requester wants a copy of the records, a copy of the records shall be mailed to the requester, together with a statement of the applicable fees, either at the time of the determination or shortly thereafter.</P> <P>(3) <E T="03">Inspection of records. </E>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 incurred 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 Department of the Treasury operations and will not exclude other persons from making inspections. The requester shall not be permitted to remove the records from the room where inspection is made. If, after making inspection, the requester desires copies of all or a portion of the requested records, copies shall be furnished upon payment of the established fees prescribed by § 1.7. Fees may be charged for search and review time as stated in § 1.7.</P> <P>(4) <E T="03">Denial of request. </E>If it is determined that the request for records should be denied in whole or in part, the requester shall be notified by mail. The letter of notification shall:</P> <P>(i) State the exemptions relied on in not granting the request;</P> <P>(ii) If technically feasible, indicate the amount of information deleted at the place in the record where such deletion is made (unless providing such indication would harm an interest protected by the exemption relied upon to deny such material);</P> <P>(iii) Set forth the name and title or position of the responsible official; </P> <P>(iv) Advise the requester of the right to administrative appeal in accordance with paragraph (i) of this section; and</P> <P>(v) Specify the official or office to which such appeal shall be submitted. </P> <P>(5) <E T="03">No records found. </E>If it is determined, after a thorough search for records by the responsible official or his delegate, that no records have been found to exist, the responsible official will so notify the requester in writing. The letter of notification will advise the requester of the right to administratively appeal the Department's determination that no records exist (<E T="03">i.e.</E>, to challenge the adequacy of the Department's search for responsive records) in accordance with paragraph (i) of this section. The response shall specify the official or office to which the appeal shall be submitted for review.</P> <P>(i) <E T="03">Administrative appeal. </E>(1)(i) A requester may appeal a Department of the Treasury initial determination when:</P> <P>(A) Access to records has been denied in whole or in part;</P> <P>(B) There has been an adverse determination of the requester's category as provided in § 1.7(d)(4);</P> <P>(C) A request for fee waiver or reduction has been denied;</P> <P>(D) It has been determined that no responsive records exist; or</P> <P>(E) A request for expedited processing has been denied.</P> <P>(ii) An appeal, other than an appeal for expedited processing, must be submitted within 35 days of the date of the initial determination or the date of the letter transmitting the last records released, whichever is later, except in the case of a denial for expedited processing. An appeal of a denial for expedited processing must be made within 10 days of the date of the initial determination to deny expedited processing (see § 1.5(e)(5)). All appeals must be submitted to the official specified in the <PRTPAGE P="20"/>appropriate appendix to this subpart whose title and address should also have been included in the initial determination. An appeal that is improperly addressed shall be considered not to have been received by the Department until the office specified in the appropriate appendix receives the appeal.</P> <P>(2) The appeal shall—</P> <P>(i) Be made in writing and signed by the requester or his or her representative;</P> <P>(ii) Be addressed to and mailed or hand delivered within 35 days (or within 10 days when expedited processing has been denied) of the date of the initial determination, or the date of the letter transmitting the last records released, whichever is later, 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);</P> <P>(iii) Set forth the address where the requester desires to be notified of the determination on appeal;</P> <P>(iv) Specify the date of the initial request and date of the letter of initial determination, and, where possible, enclose a copy of the initial request and the initial determination being appealed.</P> <P>(3)(i) Appeals shall be stamped with the date of their receipt by the office to which addressed, and shall be processed in the approximate order of their receipt. The receipt of the appeal shall be acknowledged by the office or officer specified in the appropriate appendix to this subpart and the requester advised of the date the appeal was received and the expected date of response. The decision to affirm the initial determination (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 (j)(1) of this section. If it is decided that the initial determination is to be upheld (in whole or in part) the requester shall be—</P> <P>(A) Notified in writing of the denial;</P> <P>(B) Notified of the reasons for the denial, including the FOIA exemptions relied upon;</P> <P>(C) Notified of the name and title or position of the official responsible for the determination on appeal; and</P> <P>(D) Provided with 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).</P> <P>(ii) If the initial determination is reversed on appeal, the requester shall be so notified and the request shall be processed promptly in accordance with the decision on appeal.</P> <P>(4) If a determination cannot be made within the 20-day period (or within a period of extension pursuant to paragraph (j)(1) of this section), the requester may be invited 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.</P> <P>(j) <E T="03">Time extensions; unusual circumstances.</E> (1) In unusual circumstances, the time limitations specified in paragraphs (h) and (i) 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. As used in this paragraph, <E T="03">unusual circumstances</E> means, but only to the extent reasonably necessary to the proper processing of the particular requests:</P> <P>(i) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;</P> <P>(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</P> <P>(iii) The need for consultation, which shall be conducted with all practicable <PRTPAGE P="21"/>speed, with another agency having a substantial interest in the determination of the request, or among two or more bureaus or components of bureaus of the Department of the Treasury having substantial subject matter interest therein.</P> <P>(2) Any extension or extensions of time shall not cumulatively total more than 10 days (exclusive of Saturdays, Sundays, and legal public holidays). However, if additional time is needed to process the request, the bureau shall notify the requester and provide the requester an opportunity to limit the scope of the request or arrange for an alternative time frame for processing the request or a modified request. The requester shall retain the right to define the desired scope of the request, as long as it meets the requirements contained in this subpart.</P> <P>(3) Bureaus may establish multitrack processing of requests based on the amount of work or time, or both, involved in processing requests.</P> <P>(4) If more than one request is received from the same requester, or from a group of requesters acting in concert, and the Department believes that such requests constitute a single request which would otherwise satisfy the unusual circumstances specified in paragraph (j)(1) of this section, and the requests involve clearly related matters, the Department may aggregate these requests for processing purposes.</P> <P>(k) <E T="03">Failure to comply. </E>If a bureau of the Department of the Treasury fails to comply with the time limits specified in paragraphs (h) or (i) of this section , or the time extensions of paragraph (j) of this section, any person making a request for records in accordance with § 1.5 shall be considered to have exhausted administrative remedies with respect to the request. Accordingly, the person making the request may initiate suit as set forth in paragraph (l) of this section.</P> <P>(l) <E T="03">Judicial review. </E>If an adverse determination is made upon appeal pursuant to paragraph (i) of this section, or if no determination is made within the time limits specified in paragraphs (h) and (i) of this section, together with any extension pursuant to paragraph (j)(1) of this section or within the time otherwise agreed to by the requester, the requester 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).</P> <P>(m) <E T="03">Preservation of records. </E>Under no circumstances shall records be destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.</P> <P>(n) <E T="03">Processing requests that are not properly addressed. </E>A request that is not properly addressed as specified in the appropriate appendix to this subpart shall be forwarded to the appropriate bureau or bureaus for processing. If the recipient of the request does not know the appropriate bureau to forward it to, the request shall be forwarded to the Departmental Disclosure Officer (Disclosure Services, DO), who will determine the appropriate bureau. A request not addressed to the appropriate bureau will be considered to have been received for purposes of paragraph (f) of this section when the request has been received by the appropriate bureau office as designated in the appropriate appendix to this subpart. An improperly addressed request, when received by the appropriate bureau office, shall be acknowledged by that bureau.</P> </SECTION> <SECTION> <SECTNO>§1.6</SECTNO> <SUBJECT>Business information.</SUBJECT> <P>(a) <E T="03">In general. </E>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.</P> <P>(b) <E T="03">Notice to business submitters. </E>A bureau shall provide a business submitter with prompt written notice of receipt of a request or appeal 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.</P> <P>(c) <E T="03">When notice is required. </E>The bureau shall provide a business submitter with <PRTPAGE P="22"/>notice of receipt of a request or appeal whenever:</P> <P>(1) The business submitter has in good faith designated the information as commercially or financially sensitive information, or</P> <P>(2) The bureau has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.</P> <P>(3) Notice of a request for business information falling within paragraph (c)(1) or (2) of this section shall be required for a period of not more than ten years after the date of submission unless the business submitter requests, and provides acceptable justification for, a specific notice period of greater duration.</P> <P>(4) The submitter's claim of confidentiality should be supported by a statement by an authorized representative of the company providing specific justification that the information in question is in fact confidential commercial or financial information and has not been disclosed to the public.</P> <P>(d) <E T="03">Opportunity to object to disclosure. </E>(1) Through the notice described in paragraph (b) of this section, a bureau shall afford a business submitter ten days from the date of the notice (exclusive of Saturdays, Sundays, and legal public holidays) to provide the bureau 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 considered 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.</P> <P>(2) When notice is given to a submitter under this section, the requester shall be advised that such notice has been given to the submitter. The requester shall 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 bureau may review the business submitter's objection to disclose.</P> <P>(e) <E T="03">Notice of intent to disclose. </E>A bureau shall consider carefully a business submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose business information. Whenever a bureau decides to disclose business information over the objection of a business submitter, the bureau shall forward to the business submitter a written notice which shall include:</P> <P>(1) A statement of the reasons for which the business submitter's disclosure objections were not sustained;</P> <P>(2) A description of the business information to be disclosed; and</P> <P>(3) A specified disclosure date which is not less than ten days (exclusive of Saturdays, Sundays, and legal public holidays) after the notice of the final decision to release the requested information has been mailed to the submitter. Except as otherwise prohibited by law, a copy of the disclosure notice shall be forwarded to the requester at the same time.</P> <P>(f) <E T="03">Notice of FOIA lawsuit.</E> Whenever a requester brings suit seeking to compel disclosure of business information covered by paragraph (c) of this section, the bureau shall promptly notify the business submitter.</P> <P>(g) <E T="03">Exception to notice requirement.</E> The notice requirements of this section shall not apply if:</P> <P>(1) The bureau determines that the information shall not be disclosed;</P> <P>(2) The information lawfully has been published or otherwise made available to the public; or</P> <P>(3) Disclosure of the information is required by law (other than 5 U.S.C. 552).</P> </SECTION> <SECTION> <SECTNO>§ 1.7</SECTNO> <SUBJECT>Fees for services.</SUBJECT> <P>(a) <E T="03">In general.</E> This fee schedule is applicable uniformly throughout the Department of the Treasury and pertains to requests processed under the Freedom of Information Act. Specific levels of fees are prescribed for each of the following categories of requesters. Requesters are asked to identify the applicable fee category they belong to in <PRTPAGE P="23"/>their initial request in accordance with § 1.5(b).</P> <P>(1) <E T="03">Commercial use requesters.</E> These requesters are assessed charges which recover the full direct costs of searching for, reviewing, and duplicating the records sought. Commercial use requesters are not entitled to two hours of free search time or 100 free pages of duplication 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 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, or no records are located.</P> <P>(2) <E T="03">Educational and Non-Commercial Scientific Institution Requesters.</E> Records shall be provided to requesters in these categories for the cost of duplication 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. These categories do not include requesters who want records for use in meeting individual academic research or study requirements.</P> <P>(3) <E T="03">Requesters who are Representatives of the News Media.</E> Records shall be provided to requesters in this category for the cost of duplication alone, excluding charges for the first 100 pages.</P> <P>(4) <E T="03">All Other Requesters.</E> Requesters who do not fit any of the categories described above shall be charged fees that will recover the full direct cost of searching for and duplicating records that are responsive to the request, except that the first 100 pages of duplication 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, or no records are located. Requests from persons for records about themselves filed in the Department's systems of records shall continue to be treated under the fee provisions of the Privacy Act of 1974 which permit fees only for duplication, after the first 100 pages are furnished free of charge.</P> <P>(b) <E T="03">Fee waiver determination.</E> 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 before processing the request and notify the requester of this decision. If the decision does not waive all fees, the responsible official shall advise the requester of the fact that fees shall be assessed and, if applicable, payment must be made in advance pursuant to § 1.7(e)(2).</P> <P>(c) <E T="03">When fees are not charged.</E> (1) No fee shall be charged for monitoring a requester's inspection of records.</P> <P>(2) Fees shall be charged in accordance with the schedule contained in paragraph (g) of this section for services rendered in responding to requests for records, unless any one of the following applies:</P> <P>(i) Services were performed without charge;</P> <P>(ii) The cost of collecting a fee would be equal to or greater than the fee itself; or,</P> <P>(iii) The fees were waived or reduced in accordance with paragraph (d) of this section.</P> <P>(d) <E T="03">Waiver or reduction of fees.</E> (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. Fee waiver/reduction requests shall be evaluated against the fee waiver policy guidance issued by the Department of Justice on April 2, 1987.<PRTPAGE P="24"/> </P> <P>(2) Normally no charge shall be made for providing records to state or foreign governments, international governmental organizations, or local government agencies or offices.</P> <P>(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 the office or officer specified in the appropriate appendix to this subpart within 35 days of the denial of the initial request for waiver or reduction and shall be decided within 20 days (excluding Saturdays, Sundays, and legal public holidays).</P> <P>(4) Appeals from an adverse determination of the requester's category as described in § 1.5(b)(2) and provided in § 1.5(i)(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 bureau's own records. Appeals shall be addressed in writing to the office or officer specified in the appropriate appendix to this subpart within 35 days of the date of the bureau's determination of the requester's category and shall be decided within 20 days (excluding Saturdays, Sundays, and legal public holidays).</P> <P>(e) <E T="03">Advance notice of fees.</E> (1) When the fees for processing the request are estimated to exceed the limit set by the requester, and that amount is less than $250, the requester shall be notified of the estimated costs. The requester must provide an agreement to pay the estimated costs; however, the requester shall also be given an opportunity to reformulate the request in an attempt to reduce fees.</P> <P>(2) If the requester has failed to state a limit and the costs are estimated to exceed $250.00, the requester shall be notified of the estimated costs and must pre-pay such amount prior to the processing of the request, or provide satisfactory assurance of full payment if the requester has a history of prompt payment of FOIA fees. The requester shall also be given an opportunity to reformulate the request in such a way as to constitute a request for responsive records at a reduced fee.</P> <P>(3) When the Department or a bureau of the Department acts under paragraphs (e)(1) or (2) of this section, the administrative time limits of 20 days (excluding Saturdays, Sundays, and legal public holidays) from receipt of initial requests or appeals, plus extensions of these time limits, shall begin only after fees have been paid, a written agreement to pay fees has been provided, or a request has been reformulated.</P> <P>(f) <E T="03">Form of payment.</E> (1) Payment may be made by check or money order payable to the Treasury of the United States or the relevant bureau of the Department of the Treasury.</P> <P>(2) The Department of the Treasury reserves the right to request prepayment after a request is processed and before documents are released.</P> <P>(3) When costs are estimated or determined to exceed $250, the Department shall either obtain satisfactory assurance of full payment of the estimated cost where the requester has a history of prompt payment of FOIA fees or require a requester to make an advance payment of the entire estimated or determined fee before continuing to process the request.</P> <P>(4) If a requester has previously failed to pay a fee within 30 days of the date of the billing, the requester shall be required to pay the full amount owed plus any applicable interest, 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 shall be at the rate prescribed in 31 U.S.C. 3717. In addition, the Department shall take all steps authorized by the Debt Collection Act of 1982, as amended by the Debt Collection Improvement Act of 1996, including administrative offset pursuant to 31 CFR Part 5, disclosure to consumer reporting agencies and use of collection agencies, to effect payment. </P> <P>(g) <E T="03">Amounts to be charged for specific services.</E> The fees for services performed by a bureau of the Department of the Treasury shall be imposed and collected as set forth in this paragraph.<PRTPAGE P="25"/> </P> <P>(1) <E T="03">Duplicating records.</E> All requesters, except commercial requesters, shall receive the first 100 pages duplicated without charge. Absent a determination to waive fees, a bureau shall charge requesters as follows:</P> <P>(i) $.20 per page, up to 8<FR>1/2</FR> × 14″, made by photocopy or similar process.</P> <P>(ii) Photographs, films, and other materials—actual cost of duplication.</P> <P>(iii) Other types of duplication services not mentioned above—actual cost.</P> <P>(iv) Material provided to a private contractor for copying shall be charged to the requester at the actual cost charged by the private contractor.</P> <P>(2) <E T="03">Search services.</E> Bureaus shall charge for search services consistent with the following:</P> <P>(i) <E T="03">Searches for other than electronic records.</E> The Department shall charge for search time at the salary rate(s) (basic pay plus 16 percent) of the employee(s) making the search. However, where a single class of personnel is used exclusively (<E T="03">e.g.,</E> 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. Fees may be charged for search time as prescribed in § 1.7, even if the search does not yield any responsive records, or if records are denied.</P> <P>(ii) <E T="03">Searches for electronic records.</E> The Department shall charge for actual direct cost of the search, including computer search time, runs, and the operator's salary. The fee for computer output shall be actual direct costs. For requesters in the “all other” category, when the cost of the search (including the operator time and the cost of operating the computer to process a request) equals the equivalent dollar amount of two hours of the salary of the person performing the search (<E T="03">i.e.,</E> the operator), the charge for the computer search will begin.</P> <P>(3) <E T="03">Review of records.</E> The Department shall charge commercial use requesters for review of records at the salary rate(s) (<E T="03">i.e.,</E> basic pay plus 16 percent) of the employee(s) making the review. However, when a single class of personnel is used exclusively (<E T="03">e.g.,</E> all administrative/clerical, or all professional/executive), an average rate for the range of grades typically involved may be established. Fees may be charged for review time as prescribed in § 1.7, even if records ultimately are not disclosed.</P> <P>(4) <E T="03">Inspection of records.</E> Fees for all services provided shall be charged whether or not copies are made available to the requester for inspection.</P> <P>(5) <E T="03">Other services.</E> 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:</P> <P>(i) Certifying that records are true copies;</P> <P>(ii) Sending records by special methods such as express mail, etc.</P> <P>(h) <E T="03">Aggregating requests.</E> When the Department or a bureau 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.</P> <HD SOURCE="HD1">Appendices to Subpart A</HD> </SECTION> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. A</EAR> <HD SOURCE="HED">Appendix A—Departmental Offices</HD> <P>1. <E T="03">In general.</E> This appendix applies to the DepartmentalOffices as defined in 31 CFR 1.1(a)(1).</P> <P>2. <E T="03">Public reading room.</E> The public reading room for the Departmental Offices is the Treasury Library. The Library is located in the Main Treasury Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220. For building security purposes, visitors are required to make an appointment by calling 202-622-0990.</P> <P>3. <E T="03">Requests for records.</E> Initial determinations under 31 CFR 1.5(h) 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, DO, Assistant Director, Disclosure Services, Department of the Treasury, 1500 Pennsylvania Avenue, NW, Washington, DC 20220.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records.</E> </P> <P>(i) Appellate determinations under 31 CFR 1.5(i) with respect to records of the Departmental Offices will be made by the Secretary, Deputy Secretary, Under Secretary, <PRTPAGE P="26"/>General Counsel, Inspector General, Treasury Inspector General for Tax Administration, Treasurer of the United States, or Assistant Secretary having jurisdiction over the organizational unit which has immediate custody of the records requested, or the delegate of such officer.</P> <P>(ii) Appellate determinations with respect to requests for expedited processing shall be made by the Deputy Assistant Secretary (Administration).</P> <P>(iii) Appeals should be addressed to: </P> <FP SOURCE="FP-1">Freedom of Information Appeal, DO,Assistant Director, Disclosure Services,Department of the Treasury,1500 Pennsylvania Avenue, NW.,Washington, DC 20220.</FP> <P>5. <E T="03">Delivery of process. </E>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.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. B</EAR> <HD SOURCE="HED">Appendix B—Internal Revenue Service</HD> <P>1. <E T="03">In general. </E>This appendix applies to the Internal Revenue Service. See also 26 CFR 601.702.</P> <P>2. <E T="03">Public reading room. </E>The public reading rooms for the Internal Revenue Service are maintained at the following location:</P> <HD SOURCE="HD1">National Office</HD> <HD SOURCE="HD2">Mailing Address</HD> <FP SOURCE="FP-1">Freedom of Information Reading Room,PO Box 795,Ben Franklin Station,Washington, DC 20044</FP> <HD SOURCE="HD2">Walk-In Address</HD> <FP SOURCE="FP-1">Room 1621, 1111 Constitution Avenue, NW., Washington, DC</FP> <HD SOURCE="HD1">Northeast Region</HD> <HD SOURCE="HD2">Mailing Address</HD> <FP SOURCE="FP-1">Freedom of Information Reading Room,PO Box 5138,E:QMS:D,New York, NY 10163</FP> <HD SOURCE="HD2">Walk-In Address</HD> <FP SOURCE="FP-1">11th Floor, 110 W. 44th Street, New York, NY</FP> <HD SOURCE="HD1">Midstates Region</HD> <HD SOURCE="HD2">Mailing Address</HD> <FP SOURCE="FP-1">Freedom of Information Reading Room,Mail Code 7000 DAL, 1100 Commerce Street,Dallas, TX 75242</FP> <HD SOURCE="HD2">Walk-In Address</HD> <FP SOURCE="FP-1">10th Floor, Rm. 10B37, 1100 Commerce Street, Dallas, TX</FP> <HD SOURCE="HD1">Southeast Region</HD> <HD SOURCE="HD2">Mailing Address</HD> <FP SOURCE="FP-1">401 W. Peachtree Street, NW.,Stop 601D, Room 868,Atlanta, GA 30365</FP> <HD SOURCE="HD2">Walk-In Address</HD> <FP SOURCE="FP-1">Same as mailing address</FP> <HD SOURCE="HD1">Western Region</HD> <HD SOURCE="HD2">Mailing Address</HD> <FP SOURCE="FP-1">1301 Clay Street,Stop 800-S,Oakland, CA 94612</FP> <HD SOURCE="HD2">Walk-In Address</HD> <FP SOURCE="FP-1">8th Floor,1301 Clay Street,Oakland, CA</FP> <P>3. <E T="03">Requests for records. </E>Initial determinations under 31 CFR 1.5(h) as to whether to grant requests for records of the Internal Revenue Service, grant expedited processing, grant a fee waiver, or determine requester category will be made by those officials specified in 26 CFR 601.702.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records. </E>Appellate eterminations under 31 CFR 1.5(i) 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, PO Box 929, Washington, DC 20044.</P> <P>Appeals may be delivered personally to the Assistant Chief Counsel (Disclosure Litigation) CC:EL:D, Office of the Chief Counsel, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, D.C.</P> <P>5. <E T="03">Delivery of process. </E>Service of process shall be effected consistent with Rule 4 of the Federal Rule of Civil Procedure, and directed to the Commissioner of Internal Revenue at the following address:Commissioner, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224. Attention: CC:EL:D.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. C</EAR> <HD SOURCE="HED">Appendix C—United States Customs Service</HD> <P>1. <E T="03">In general. </E>This appendix applies to the United States Customs Service.</P> <P>2. <E T="03">Public reading room. </E>The public reading room for the United States Customs Service is maintained at the following location:United States Customs Service, 1300 Pennsylvania Avenue NW., Washington, DC 20229.</P> <P>3. <E T="03">Requests for records. </E> </P> <P>(a) Headquarters—Initial determinations under 31 CFR 1.5(h) 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 <PRTPAGE P="27"/>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 having responsibility for that office. Requests may be mailed or delivered in person to:Freedom of Information Act,Chief, Disclosure Law Branch,U.S. Customs Service,1300 Pennsylvania Avenue, NW.,Washington, DC 20229.</P> <P>(b) Field Offices—Initial determinations under 31 CFR 1.5(h) as to whether to grant requests for records maintained by the Office of Investigations will be made by the Special Agent in Charge in whose office the records are maintained. Initial determinations of records maintained in Customs Ports of Entry as to whether or not to grant requests for records will be made by the Port Director of the Customs Service Port having jurisdiction over the Port of Entry in which the records are maintained. Requests may be mailed or faxed to or delivered personally to the respective Special Agents in Charge or Port Directors of the Customs Service Ports at the following locations:</P> <HD SOURCE="HD1">Offices of Special Agents in Charge (SACS)</HD> <HD SOURCE="HD2">Atlanta—SAC</HD> <FP SOURCE="FP-1">1691 Phoenix Blvd.,Suite 250,Atlanta, Georgia 30349,Phone (770) 994-2230,FAX (770) 994-2262</FP> <HD SOURCE="HD2">Detroit—SAC</HD> <FP SOURCE="FP-1">McNamara Federal Building,477 Michigan Avenue,Room 350,Detroit, Michigan 48226-2568,Phone (313) 226-3166,FAX (313) 226-6282</FP> <HD SOURCE="HD2">Baltimore—SAC</HD> <FP SOURCE="FP-1">40 South Gay Street,3rd FloorBaltimore, Maryland 21202,Phone (410) 962-2620,FAX (410) 962-3469</FP> <HD SOURCE="HD2">El Paso—SAC</HD> <FP SOURCE="FP-1">9400 Viscount Blvd.,Suite 200,El Paso, Texas 79925,Phone (915) 540-5700,FAX (915) 540-5754</FP> <HD SOURCE="HD2">Boston—SAC</HD> <FP SOURCE="FP-1">10 Causeway Street, Room 722,Boston, MA 02222-1054,Phone (617) 565-7400,FAX (617) 565-7422</FP> <HD SOURCE="HD2">Houston—SAC</HD> <FP SOURCE="FP-1">4141 N. Sam Houston Pkwy, E.,Houston, Texas 77032,Phone (281) 985-0500,FAX (281) 985-0505</FP> <HD SOURCE="HD2">Buffalo—SAC</HD> <FP SOURCE="FP-1">111 West Huron Street,Room 416,Buffalo, New York 14202,Phone (716) 551-4375,FAX (716) 551-4379</FP> <HD SOURCE="HD2">Los Angeles—SAC</HD> <FP SOURCE="FP-1">300 South Ferry St.,Room 2037,Terminal Island, CA 90731,Phone (310) 514-6231,FAX (310) 514-6280</FP> <HD SOURCE="HD2">Chicago—SAC</HD> <FP SOURCE="FP-1">610 South Canal Street,Room 1001,Chicago, Illinois 60607,Phone (312) 353-8450,FAX (312) 353-8455</FP> <HD SOURCE="HD2">Miami—SAC</HD> <FP SOURCE="FP-1">8075 NW 53rd Street,Scranton Building,Miami, Florida 33166,Phone (305) 597-6030,FAX (305) 597-6227</FP> <HD SOURCE="HD2">Denver—SAC</HD> <FP SOURCE="FP-1">115 Inverness Drive, East, Suite 300,Englewood, CO 80112-5131,Phone (303) 784-6480,FAX (303) 784-6490</FP> <HD SOURCE="HD2">New Orleans—SAC</HD> <FP SOURCE="FP-1">423 Canal Street,Room 207,New Orleans, LA 70130,Phone (504) 670-2416,FAX (504) 589-2059</FP> <HD SOURCE="HD2">New York—SAC</HD> <FP SOURCE="FP-1">6 World Trade Center,New York, New York 10048-0945,Phone (212) 466-2900,FAX (212) 466-2903</FP> <HD SOURCE="HD2">San Juan—SAC</HD> <FP SOURCE="FP-1">#1, La Puntilla Street,Room 110,San Juan, PR 00901,Phone (787) 729-6975FAX (787) 729-6646</FP> <HD SOURCE="HD2">San Antonio—SAC</HD> <FP SOURCE="FP-1">10127 Morocco,Suite 180,San Antonio, Texas 78216,Phone (210) 229-4561,FAX (210) 229-4582</FP> <HD SOURCE="HD2">Seattle—SAC</HD> <FP SOURCE="FP-1">1000—2nd Avenue,Suite 2300,Seattle, Washington, 98104,Phone (206) 553-7531,FAX (206) 553-0826</FP> <HD SOURCE="HD2">San Diego—SAC</HD> <FP SOURCE="FP-1">185 West “F” Street,Suite 600,San Diego, CA 92101,Phone (619) 557-6850,FAX (619) 557-5109</FP> <HD SOURCE="HD2">Tampa—SAC</HD> <FP SOURCE="FP-1">2203 North Lois Avenue,Suite 600,Tampa, Florida 33607,Phone (813) 348-1881,FAX (813) 348-1871</FP> <HD SOURCE="HD2">San Francisco—SAC</HD> <FP SOURCE="FP-1">1700 Montgomery Street,Suite 445,San Francisco, CA 94111,Phone (415) 705-4070,FAX (415) 705-4065</FP> <HD SOURCE="HD2">Tucson—SAC</HD> <FP SOURCE="FP-1">555 East River Road,Tucson, Arizona 85704,Phone (520) 670-6026,FAX (520) 670-6233<PRTPAGE P="28"/> </FP> <HD SOURCE="HD1">Customs Service Ports</HD> <P>Anchorage: 605 West Fourth Avenue Anchorage, AK 99501. Phone: (907) 271-2675; FAX: (907) 271-2684.</P> <P>Minneapolis: 110 South Street Minneapolis, MN 55401. Phone: (612) 348-1690; FAX: (612) 348-1630.</P> <P>Baltimore: 200 St. Paul Place Baltimore, MD 21202. Phone: (410) 962-2666; FAX: (410) 962-9335.</P> <P>Mobile: 150 North Royal Street Mobile, AL 36602. Phone: (205) 441-5106; FAX: (205) 441-6061.</P> <P>Blaine: 9901 Pacific Highway Blaine, WA 98230. Phone: (360) 332-5771; FAX: (360) 332-4701.</P> <P>New Orleans: 423 Canal Street New Orleans, LA 70130. Phone: (504) 589-6353; FAX: (504) 589-7305.</P> <P>Boston: 10 Causeway Street Boston, MA 02222-1059. Phone: (617) 565-6147; FAX: (617) 565-6137.</P> <P>New York: 6 World Trade Center New York, NY 10048. Phone: (212) 466-4444; FAX: (212) 455-2097.</P> <P>Buffalo: 111 West Huron Street Buffalo, NY 14202-22378. Phone: (716) 551-4373; FAX: (716) 551-5011.</P> <P>New York-JFK Area: Building #77 Jamaica, NY 11430. Phone: (718) 553-1542; FAX: (718) 553-0077.</P> <P>Champlain: 35 West Service Road Rts. 1 & 9 South Champlain, NY 12919. Phone: (518) 298-8347; FAX: (518) 298-8314.</P> <P>New York-NY/Newark Area: Hemisphere Center, Newark, NJ 07114. Phone: (201) 645-3760; FAX: (201) 645-6634.</P> <P>Charleston: 200 East Bay Street Charleston, SC 29401. Phone: (803) 727-4296; FAX: (803) 727-4043.</P> <P>Nogales: 9 North Grand Avenue Nogales, AZ 85621. Phone: (520) 287-1410; FAX: (520) 287-1421.</P> <P>Charlotte: 1801-K Cross Beam Drive Charlotte, NC 28217. Phone: (704) 329-6101; FAX: (704) 329-6103.</P> <P>Norfolk: 200 Granby Street Norfolk, VA 23510. Phone: (804) 441-3400; FAX: (804) 441-6630.</P> <P>Charlotte/Amalie: Main Post OFC-Sugar Estate St. Thomas, VI 00801. Phone: (809) 774-2511; FAX: (809) 776-3489.</P> <P>Pembina: PO Box 610 Pembina, ND 58271. Phone: (701) 825-6201; FAX: (701) 825-6473.</P> <P>Chicago: 610 South Canal Street Chicago, IL 60607. Phone: (312) 353-6100; FAX: (312) 353-2337.</P> <P>Philadelphia: 2nd & Chestnut Streets Philadelphia, PA 19106. Phone: (215) 597-4605; FAX: (215) 597-2103.</P> <P>Cleveland: 56 Erieview Plaza Cleveland, OH 44114. Phone: (216) 891-3804; FAX: (216) 891-3836.</P> <P>Portland, Oregon: 511 NW Broadway Portland, OR 97209. Phone: (503) 326-2865; FAX: (503) 326-3511.</P> <P>Dallas/Fort Worth: PO Box 61905 Dallas/Fort Worth Airport, TX 75261. Phone: (972) 574-2170; FAX: (972) 574-4818.</P> <P>Providence: 49 Pavilion Avenue Providence, RI 02905. Phone: (401) 941-6326; FAX: (401) 941-6628.</P> <P>Denver: 4735 Oakland Street Denver, CO 80239. Phone: (303) 361-0715; FAX: (303) 361-0722.</P> <P>San Diego: 610 West Ash Street San Diego, CA 92188. Phone: (619) 557-6758; FAX: (619) 557-5314.</P> <P>Detroit: 477 Michigan Avenue Detroit, MI 48226. Phone: (313) 226-3178; FAX: (313) 226-3179.</P> <P>San Francisco: 555 Battery Avenue San Francisco, CA 94111. Phone: (415) 744-7700; FAX: (415) 744-7710.</P> <P>Duluth: 515 West 1st Street Duluth, MN 55802-1390. Phone: (218) 720-5201; FAX: (218) 720-5216.</P> <P>San Juan: #1 La Puntilla San Juan, PR 00901. Phone: (809) 729-6965; FAX: (809) 729-6978.</P> <P>El Paso: 9400 Viscount Boulevard El Paso, TX 79925. Phone: (915) 540-5800; FAX: (915) 540-3011.</P> <P>Savannah: 1 East Bay Street Savannah, GA 31401. Phone: (912) 652-4256; FAX: (912) 652-4435.</P> <P>Great Falls: 300 2nd Avenue South Great Falls, MT 59403. Phone: (406) 453-7631; FAX: (406) 453-7069.</P> <P>Seattle: 1000 2nd Avenue Seattle, WA 98104-1049. Phone: (206) 553-0770; FAX: (206) 553-2970.</P> <P>Honolulu: 335 Merchant Street Honolulu, HI 96813. Phone: (808) 522-8060; FAX: (808) 522-8060.</P> <P>St. Albans: P.O. Box 1490 St. Albans, VT 05478. Phone: (802) 524-7352; FAX: (802) 527-1338.</P> <P>Houston/Galveston: 1717 East Loop Houston, TX 77029. Phone: (713) 985-6712; FAX: (713) 985-6705.</P> <P>St. Louis: 4477 Woodson Road St. Louis, MO 63134-3716. Phone: (314) 428-2662; FAX: (314) 428-2889.</P> <P>Laredo/Colombia: P.O. Box 3130 Laredo, TX 78044. Phone: (210) 726-2267; FAX: (210) 726-2948.</P> <P>Tacoma: 2202 Port of Tacoma Road, Tacoma, WA 98421. Phone: (206) 593-6336; FAX: (206) 593-6351.</P> <P>Los Angeles: 300 South Ferry Street Terminal Island, CA 90731. Phone: (310) 514-6001; FAX: (310) 514-6769.</P> <P>Tampa: 4430 East Adamo Drive Tampa, FL 33605. Phone: (813) 228-2381; FAX: (813) 225-7309.</P> <P>Miami Airport: 6601 West 25th Street Miami, FL 33102-5280. Phone: (305) 869-2800; FAX: (305) 869-2822.</P> <P>Washington, DC: P.O. Box 17423 Washington, DC. 20041. Phone: (703) 318-5900; FAX: (703) 318-6706.<PRTPAGE P="29"/> </P> <P>Milwaukee: P.O. Box 37260 Milwaukee, WI 53237-0260. Phone: (414) 571-2860; FAX: (414) 762-0253.</P> <P>(c) All such requests should be conspicuously labeled on the face of the envelope, “Freedom of Information Act Request” or “FOIA Request”.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records. </E>Appellate determinations under 31 CFR 1.5(i) will be made by the Assistant Commissioner of Customs (Office of Regulations and Rulings), or his designee, and all such appeals should be mailed, faxed (202/927-1873) or personally delivered to the United States Customs Service, 1300 Pennsylvania Avenue, NW., Washington, DC 20229. If possible, a copy of the initial letter of determination should be attached to the appeal.</P> <P>5. <E T="03">Delivery of process. </E>Service of process will be received by the Chief Counsel, United States Customs Service, 1300 Pennsylvania Avenue, NW., Washington, DC 20229.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. D</EAR> <HD SOURCE="HED">Appendix D—United States Secret Service</HD> <P>1. <E T="03">In general. </E>This appendix applies to the United States Secret Service.</P> <P>2. <E T="03">Public reading room. </E>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.</P> <P>3. <E T="03">Requests for records. </E>Initial determinations under 31 CFR 1.5(h) 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,FOIA and Privacy Acts Officer,U.S. Secret Service, Room 720,1800 G Street, NW.,Washington, DC 20223.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records. </E>Appellate determinations under 31 CFR 1.5(i) 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,U.S. Secret Service, Room 800,1800 G Street, NW.,Washington, DC 20223.</P> <P>5. <E T="03">Delivery of Process. </E>Service of process will be received by the United States Secret Service Chief Counsel at the following address:Chief Counsel,U.S. Secret Service, Room 842,1800 G Street, NW.,Washington, DC 20223.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. E</EAR> <HD SOURCE="HED">Appendix E—Bureau of Alcohol, Tobacco and Firearms</HD> <P>1. <E T="03">In general. </E>This appendix applies to the Bureau of Alcohol, Tobacco and Firearms.</P> <P>2. <E T="03">Public reading room. </E>The Bureau of Alcohol, Tobacco and Firearms will make materials available for review on an ad hoc basis when necessary. Contact the Chief, Disclosure Division, Bureau of Alcohol, Tobacco, and Firearms, 650 Massachusetts Avenue, NW., Washington, DC 20226.</P> <P>3. <E T="03">Requests for records. </E>Initial determinations under 31 CFR 1.5(h) as to whether to grant requests for records of the Bureau of Alcohol, Tobacco, and Firearms will be made by the Chief, Disclosure Division, Office of Assistant Director (Liaison and Public Information) or the delegate of such officer. Requests may be mailed or delivered in person to:Freedom of Information Act Request,Chief, Disclosure Division,Bureau of Alcohol, Tobacco, and Firearms,650 Massachusetts Avenue, NW.,Washington, DC 20226.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records. </E>Appellate determinations under 31 CFR 1.5(i) with respect to records of the Bureau of Alcohol, Tobacco and Firearms will be made by the Assistant Director, Liaison and Public Information, Bureau of Alcohol, Tobacco, and Firearms or the delegate of such officer.</P> <P>Appeals may be mailed or delivered in person to:Freedom of Information Appeal,Assistant Director, Liaison and Public Information,Bureau of Alcohol, Tobacco, and Firearms,650 Massachusetts Avenue, NW.,Washington, DC 20226.</P> <P>5. <E T="03">Delivery of process. </E>Service of process will be received by the Director of the Bureau of Alcohol, Tobacco, and Firearms at the following location:Bureau of Alcohol, Tobacco, and Firearms,650 Massachusetts Avenue, NW.,Washington, DC 20226,Attention: Chief Counsel.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. F</EAR> <HD SOURCE="HED">Appendix F—Bureau of Engraving and Printing</HD> <P>1. <E T="03">In general. </E>This appendix applies to the Bureau of Engraving and Printing.</P> <P>2. <E T="03">Public reading room. </E>Contact the Disclosure Officer, 14th and C Streets, SW., Washington, DC 20228, to make an appointment.</P> <P>3. <E T="03">Requests for records. </E>Initial determinations under 31 CFR 1.5(h) as to whether to grant requests for records of the Bureau of Engraving and Printing will be made by the Assistant to the Director. Requests may be mailed or delivered in person to:Freedom of Information Act Request,Disclosure Officer,(Assistant to the Director),Room 112-M,Bureau of Engraving and Printing,Washington, DC 20228.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records. </E>Appellate determinations under 31 CFR 1.5(i) 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 <PRTPAGE P="30"/>or delivered in person to:Freedom of Information Appeal,Director, Bureau of Engraving and Printing,14th and C Streets, SW.,Room 119-M,Washington, DC 20228.</P> <P>5. <E T="03">Delivery of process. </E>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 104-24 M,Washington, DC 20228.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. G</EAR> <HD SOURCE="HED">Appendix G—Financial Management Service</HD> <P>1. <E T="03">In general.</E> This appendix applies to the Financial Management Service.</P> <P>2. <E T="03">Public reading room.</E> The public reading room for the Financial Management Service is maintained at the following location: Library, Main Treasury Building, 1500 Pennsylvania Avenue NW., Washington, DC 20220. For building security purposes, visitors are required to make an appointment by calling 202/622-0990.</P> <P>3. <E T="03">Requests for records.</E> Initial determinations under 31 CFR 1.5(h) 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, 401 14th Street, SW., Washington, DC 20227.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records.</E> Appellate determinations under 31 CFR 1.5(i) will be made by the Commissioner, Financial Management Service. Appeals may be mailed to: Freedom of Information Appeal (FOIA), Commissioner, Financial Management Service, 401 14th Street, SW., Washington, DC 20227.</P> <P>Appeals may be delivered personally to the Office of the Commissioner, Financial Management Service, 401 14th Street, SW., Washington, DC.</P> <P>5. <E T="03">Delivery of process.</E> Service of process will be received by the Commissioner, Financial Management Service, and shall be delivered to: Commissioner, Financial Management Service, Department of the Treasury, 401 14th Street, SW., Washington, DC 20227.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. H</EAR> <HD SOURCE="HED">Appendix H—United States Mint</HD> <P>1. <E T="03">In general.</E> This appendix applies to the United States Mint.</P> <P>2. <E T="03">Public reading room.</E> The U.S. Mint will provide a room on an ad hoc basis when necessary. Contact the Freedom of Information/Privacy Act Officer, United States Mint, Judiciary Square Building, 7th floor, 633 3rd Street, NW., Washington, DC 20220.</P> <P>3. <E T="03">Requests for records.</E> Initial determinations under 31 CFR 1.5(h) as to whether to grant requests for records of the United States Mint will be made by the Freedom of Information/Privacy Act Officer, United States Mint. Requests may be mailed or delivered in person to: Freedom of Information Act Request, Freedom of Information/Privacy Act Officer, United States Mint, Judiciary Square Building, 7th Floor, 633 3rd Street, NW., Washington, DC 20220.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records.</E> Appellate determinations under 31 CFR 1.5(i) 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, United States Mint, Judiciary Square Building, 7th Floor, 633 3rd Street, NW., Washington, DC 20220.</P> <P>5. <E T="03">Delivery of process.</E> Service of process will be received by the Director of the Mint and shall be delivered to: Chief Counsel, United States Mint, Judiciary Square Building, 7th Floor, 633 3rd Street, NW., Washington, D.C. 20220.</P> </APPENDIX> <APPENDIX> <EAR>Pt.1, Subpt. A, App. I</EAR> <HD SOURCE="HED">Appendix I—Bureau of the Public Debt</HD> <P>1. <E T="03">In general.</E> This appendix applies to the Bureau of the Public Debt.</P> <P>2. <E T="03">Public reading room.</E> The public reading room for the Bureau of the Public Debt is maintained at the following location: Library, Main Treasury Building, 1500 Pennsylvania Avenue, NW, Washington, DC 20220. For building security purposes, visitors are required to make an appointment by calling 202/622-0990.</P> <P>3. <E T="03">Requests for records.</E> Initial determinations under 31 CFR 1.5(h) as to whether to grant requests for records will be made by the Disclosure Officer of the Bureau of the Public Debt. Requests may be sent to: Freedom of Information Act Request, Disclosure Officer, Bureau of the Public Debt, Department of the Treasury, 999 E Street, NW., Room 500, Washington, D.C. 20239-0001.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records.</E> Appellate determinations under 31 CFR 1.5(i) with respect to records of the Bureau of the Public Debt will be made by the Commissioner of the Public Debt. Appeals may be sent to: Freedom of Information Appeal, Commissioner of the Public Debt, Department of the Treasury, 999 E Street, NW., Room 500, Washington, DC 20239-0001.</P> <P>5. <E T="03">Delivery of process.</E> Service of process will be received by the Chief Counsel, Bureau of the Public Debt, or the delegate of such officer, and shall be delivered to the following location: Chief Counsel's Office, Bureau of the Public Debt, Room 501, 999 E Street, NW., Washington, DC 20239-0001, or Bureau of the Public Debt, 200 Third Street, Room G-15, Parkersburg, WV 26106-1328.</P> </APPENDIX> <APPENDIX> <PRTPAGE P="31"/> <EAR>Pt. 1, Subpt. A, App. J</EAR> <HD SOURCE="HED">Appendix J—Office of the Comptroller of the Currency</HD> <P>1. <E T="03">In general.</E> This appendix applies to the Office of the Comptroller of the Currency.</P> <P>2. <E T="03">Public reading room.</E> The Office of the Comptroller of the Currency will make materials available through its Public Information Room at 250 E Street, SW., Washington, DC 20219.</P> <P>3. <E T="03">Requests for records.</E> Initial determinations under 31 CFR 1.5(h) as to whether to grant requests for records of the Office of the Comptroller of the Currency will be made by the Disclosure Officer or the official so designated. Requests may be mailed or delivered in person to: Freedom of Information Act Request, Disclosure Officer, Communications Division, 3rd Floor, Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records.</E> Appellate determinations under 31 CFR 1.5(i) with respect to records of the Office of the Comptroller of the Currency will be made by the Chief Counsel or delegates of such person. Appeals made by mail should be addressed to: Communications Division, Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.</P> <P>Appeals may be delivered personally to the Communications Division, Comptroller of the Currency, 250 E Street, SW., Washington, DC.</P> <P>5. <E T="03">Delivery of process.</E> Service of process will be received by the Director, Litigation Division, Comptroller of the Currency, and shall be delivered to such officer at the following location: Litigation Division, Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. K</EAR> <HD SOURCE="HED">Appendix K—Federal Law Enforcement Training Center</HD> <P>1. <E T="03">In general.</E> This apppendix applies to the Federal Law Enforcement Training Center.</P> <P>2. <E T="03">Public reading room.</E> 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.</P> <P>3. <E T="03">Requests for records. </E>Initial determinations under 31 CFR 1.5(h) as to whether to grant requests for records will be made by the Chief, Management Analysis Division, 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.</P> <P>Requests may be delivered personally to the Management Analysis Division, Federal Law Enforcement Training Center, Building 94, Glynco, GA.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records. </E>Appellate determinations under 31 CFR 1.5(i) with respect to records of the consolidated Federal Law Enforcement Training Center will be made by the Director, Federal Law Enforcement Training Center. Appeals may be mailed to: Freedom of Information Appeal, Federal Law Enforcement Training Center, Department of the Treasury, Building 94, Glynco, GA 31524.</P> <P>5. <E T="03">Delivery of process. </E>Service of process will be received by the Legal Counsel of the Federal Law Enforcement Training Center, or his delegate, and shall be delivered to such officer at the following location: Legal Counsel, Federal Law Enforcement Training Center, Department of the Treasury, Building 94, Glynco, GA 31524.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. L</EAR> <HD SOURCE="HED">Appendix L—Office of Thrift Supervision</HD> <P>1. <E T="03">In general. </E>This appendix applies to the Office of Thrift Supervision (OTS). 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 handbooks and other publications may be purchased by forwarding a request, along with a check to: OTS Order Department, PO Box 753, Waldorf, MD 20604 or by calling 301/645-6264 to pay by VISA or MASTERCARD.</P> <P>2. <E T="03">Public reading room. </E>The public reading room for the Office of Thrift Supervision is maintained at the following location:1700 G Street, NW., Washington, DC 20552.</P> <P>3. <E T="03">Requests for records. </E>Initial determinations under 31 CFR 1.5(h) as to whether to grant requests for records of the Office of Thrift Supervision will be made by the Director, OTS Dissemination Branch. Requests for records should be addressed to: Freedom of Information Request, Manager, Dissemination Branch, Records Management & Information Policy Division, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.</P> <P>Requests for records may be delivered in person to: Public Reference Room, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC.</P> <P>4. <E T="03">Administrative appeal of initial determination to deny records.</E> Appellate determinations under 31 CFR 1.5(i) with respect to records of the Office of Thrift Supervision will be made by the Director, Records Management & Information Policy, Office of Thrift Supervision, or their designee. Appeals made by mail should be addressed to: Freedom of Information Appeal, Director, Records Management & Information Policy Division, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.<PRTPAGE P="32"/> </P> <P>Appeals may be delivered in person to: Public Reference Room, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC.</P> <P>5. <E T="03">Delivery of process.</E> Service of process will be received by the Corporate Secretary of the Office of Thrift Supervision or their designee and shall be delivered to the following location: Corporate Secretary, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552.</P> </APPENDIX> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Other Disclosure Provisions</HD> <SECTION> <SECTNO>§ 1.8</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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 § 1.1(a) of this part and the United States Savings Bonds Division and the United States Secret Service.</P> </SECTION> <SECTION> <SECTNO>§ 1.9</SECTNO> <SUBJECT>Records not to be otherwise withdrawn or disclosed.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.10</SECTNO> <SUBJECT>Oral information.</SUBJECT> <P>(a) Officers and employees of the Department may, in response to requests, 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 § 1.6 will be required.</P> <P>(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;</P> </SECTION> <SECTION> <SECTNO>§ 1.11</SECTNO> <SUBJECT>Testimony or the production of records in a court or other proceeding.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.12</SECTNO> <SUBJECT>Regulations not applicable to official request.</SUBJECT> <P>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 <PRTPAGE P="33"/>referred for decision to the supervisory official designated in § 1.8.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Privacy Act</HD> <SECTION> <SECTNO>§ 1.20</SECTNO> <SUBJECT>Purpose and scope of regulations.</SUBJECT> <P>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 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 <E T="03">Code of Federal Regulations</E> 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:</P> <P>(a) The Departmental Offices, which include the offices of:</P> <P>(1) The Secretary of the Treasury, including immediate staff;</P> <P>(2) The Deputy Secretary of the Treasury, including immediate staff;</P> <P>(3) The Chief of Staff, including immediate staff;</P> <P>(4) The Executive Secretary and all offices reporting to such official, including immediate staff;</P> <P>(5) The Under Secretary of the Treasury for International Affairs and all offices reporting to such official, including immediate staff;</P> <P>(6) The Under Secretary of the Treasury for Domestic Finance and all offices reporting to such official, including immediate staff;</P> <P>(7) The Under Secretary for Enforcement and all offices reporting to such official, including immediate staff;</P> <P>(8) The Assistant Secretary of the Treasury for Financial Institutions and all offices reporting to such official, including immediate staff;</P> <P>(9) The Assistant Secretary of the Treasury for Economic Policy and all offices reporting to such official, including immediate staff;</P> <P>(10) The Fiscal Assistant Secretary and all offices reporting to such official, including immediate staff;</P> <P>(11) The General Counsel and all offices reporting to such official, including immediate staff; except legal counsel to the components listed in paragraphs (a)(17) and (b) through (l) of this section;</P> <P>(12) The Inspector General and all offices reporting to such official, including immediate staff;<PRTPAGE P="34"/> </P> <P>(13) The Assistant Secretary of the Treasury for International Affairs and all offices reporting to such official, including immediate staff;</P> <P>(14) The Assistant Secretary of the Treasury for Legislative Affairs and Public Liaison and all offices reporting to such official, including immediate staff;</P> <P>(15) The Assistant Secretary of the Treasury for Management and Chief Financial Officer and all offices reporting to such official, including immediate staff;</P> <P>(16) The Assistant Secretary of the Treasury for Public Affairs and all offices reporting to such official, including immediate staff;</P> <P>(17) The Assistant Secretary of the Treasury for Tax Policy and all offices reporting to such official, including immediate staff;</P> <P>(18) The Treasurer of the United States, including immediate staff;</P> <P>(19) The Treasury Inspector General for Tax Administration and all offices reporting to such official, including immediate staff.</P> <P>(b) The Bureau of Alcohol, Tobacco and Firearms.</P> <P>(c) The Office of the Comptroller of the Currency.</P> <P>(d) The United States Customs Service.</P> <P>(e) The Bureau of Engraving and Printing.</P> <P>(f) The Federal Law Enforcement Training Center.</P> <P>(g) The Financial Management Service.</P> <P>(h) The Internal Revenue Service.</P> <P>(i) The United States Mint.</P> <P>(j) The Bureau of the Public Debt.</P> <P>(k) The United States Secret Service.</P> <P>(l) The Office of Thrift Supervision.</P> <P>(m) The Office of Thrift Supervision.</P> <FP>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 part of the Departmental Offices for the purpose of these regulations.</FP> <CITA>[52 FR 26305, July 14, 1987, as amended at 60 FR 31633, June 16, 1995; 65 FR 2333, Jan. 14, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.21</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) The term <E T="03">agency</E> means agency as defined in 5 U.S.C. 552(e);</P> <P>(b) The term <E T="03">individual</E> means a citizen of the United States or an alien lawfully admitted for permanent residence;</P> <P>(c) The term <E T="03">maintain</E> includes maintain, collect, use, or disseminate;</P> <P>(d) The term <E T="03">record</E> 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;</P> <P>(e) The term <E T="03">system of records</E> 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;</P> <P>(f) The term <E T="03">statistical record</E> 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.</P> <P>(g) The term <E T="03">routine use</E> means the disclosure of a record that is compatible with the purpose for which the record was collected;</P> <P>(h) The term <E T="03">component</E> means a bureau or office of the Department of the Treasury as set forth in § 1.20 and in the appendices to these regulations. (See 5 U.S.C. 552a(a).)</P> <P>(i) The term <E T="03">request for access</E> means a request made pursuant to 5 U.S.C. 552a(d)(1).<PRTPAGE P="35"/> </P> <P>(j) The term <E T="03">request for amendment</E> means a request made pursuant to 5 U.S.C. 552a(d)(2).</P> <P>(k) The term <E T="03">request for accounting</E> means a request made pursuant to 5 U.S.C. 552a(c)(3).</P> </SECTION> <SECTION> <SECTNO>§ 1.22</SECTNO> <SUBJECT>Requirements relating to systems of records.</SUBJECT> <P>(a) <E T="03">In general.</E> Subject to 5 U.S.C. 552a (j) and (k) and § 1.23(c), each component shall, in conformance with 5 U.S.C. 552a:</P> <P>(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)).</P> <P>(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)).</P> <P>(b) <E T="03">Requests for information from individuals.</E> Subject to 5 U.S.C. 552a(j) and § 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:</P> <P>(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;</P> <P>(2) The principal purpose or purposes for which the information is intended to be used;</P> <P>(3) The routine uses which may be made of the information, as published pursuant to 5 U.S.C. 552a(e)(4)(D); and</P> <P>(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)).</P> <P>(c) <E T="03">Report on new systems</E>. 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 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)).</P> <P>(d) <E T="03">Accurate and secure maintenance of records</E>. Each component shall:</P> <P>(1) Subject to 5 U.S.C. 552a(j) and § 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);</P> <P>(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</P> <P>(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)).</P> <P>(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 <PRTPAGE P="36"/>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.</P> <P>(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.</P> <P>(e) <E T="03">Prohibition against maintenance of records concerning First Amendment rights</E>. 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:</P> <P>(1) Expressly authorized by statute, or</P> <P>(2) Expressly authorized by the individual about whom the record is maintained, or</P> <P>(3) Pertinent to and within the scope of an authorized law enforcement activity. (See 5 U.S.C. 552a (e)(7))</P> <P>(f) <E T="03">Notification of disclosure under compulsory legal process.</E> Subject to 5 U.S.C. 552a(j) and § 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 (e)(8) and this section, pursuant to 5 U.S.C. 552a (j) and § 1.23 (c)(1), by a Notice of Exemption published in the <E T="04">Federal Register.</E> (See 5 U.S.C. 552a (e)(8)).</P> <P>(g) <E T="03">Emergency disclosure.</E> 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)).</P> </SECTION> <SECTION> <SECTNO>§ 1.23</SECTNO> <SUBJECT>Publication in the Federal Register—Notices of systems of records, general exemptions, specific exemptions, review of all systems.</SUBJECT> <P>(a) <E T="03">Notices of systems of records to be published in the</E> <E T="04">Federal Register.</E> (1) The Department shall publish a notice of the existence and character of all systems of records every 3 years in the <E T="04">Federal Register.</E> 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).</P> <P>(2) Minor changes to systems of records shall be published annually. (See paragraph (d)(8) of this section)</P> <P>(3) In addition, the Department shall publish in the <E T="04">Federal Register</E> 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:</P> <P>(i) The name and location of the system;</P> <P>(ii) The categories of individuals on whom records are maintained in the system;</P> <P>(iii) The categories of records maintained in the system;<PRTPAGE P="37"/> </P> <P>(iv) Each routine use of the records contained in the system, including the categories of users and the purpose of such use;</P> <P>(v) The policies and practices of the component regarding storage, retrievability, access controls, retention, and disposal of the records;</P> <P>(vi) The title and business address of the Treasury official who is responsible for the system of records;</P> <P>(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.</P> <P>(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</P> <P>(ix) The categories of sources of records in the system. (See 5 U.S.C. 552a(e)(4))</P> <P>(b) <E T="03">Notice of new or modified routine uses to be published in the</E> <E T="04">Federal Register</E>. 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 <E T="04">Federal Register</E> 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))</P> <P>(c) <E T="03">Promulgation of rules exempting systems from certain requirements</E>—(1) <E T="03">General exemptions.</E> 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 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:</P> <P>(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;</P> <P>(ii) Information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or</P> <P>(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))</P> <P>(2) <E T="03">Specific exemptions.</E> 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) <PRTPAGE P="38"/>(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:</P> <P>(i) Subject to the provisions of 5 U.S.C. 552(b)(1);</P> <P>(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;</P> <P>(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;</P> <P>(iv) Required by statute to be maintained and used solely as statistical records;</P> <P>(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;</P> <P>(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</P> <P>(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 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.</P> <P>(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))</P> <P>(d) <E T="03">Review and report to OMB.</E> 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:</P> <P>(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))</P> <P>(2) Review annually component's recordkeeping and disposal policies and practices in order to assure compliance with the Act.</P> <P>(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.</P> <P>(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.<PRTPAGE P="39"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E>. 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.24</SECTNO> <SUBJECT>Disclosure of records to person other than the individual to whom they pertain.</SUBJECT> <P>(a) <E T="03">Conditions of disclosure.</E> 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:</P> <P>(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;</P> <P>(2) Retired under 5 U.S.C. 552 (subpart A of this part);</P> <P>(3) For a routine use as defined in 5 U.S.C. 552a(a)(7) and § 1.21(g) and as described under 5 U.S.C. 552a(e)(4)(D) and § 1.23(a)(4);</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>(i) If the activity is authorized by law; and</P> <P>(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;</P> <P>(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;</P> <P>(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.<PRTPAGE P="40"/> </P> <P>(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</P> <P>(11) Pursuant to the order of a court of competent jurisdiction. (See 5 U.S.C. 552a(b))</P> </SECTION> <SECTION> <SECTNO>§ 1.25</SECTNO> <SUBJECT>Accounting of disclosures.</SUBJECT> <P>(a) <E T="03">Accounting of certain disclosures.</E> Each component, with respect to each system of records under its control, shall:</P> <P>(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 § 1.24; and (ii) the name and address of the person or agency to whom the disclosure is made;</P> <P>(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</P> <P>(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 § 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).)</P> <P>(b) <E T="03">Accounting systems.</E> 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:</P> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Exemptions from accounting requirements.</E> No accounting is required for disclosure of records:</P> <P>(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</P> <P>(2) If disclosure would be required under 5 U.S.C. 552 and Subpart A of this part.</P> <P>(d) <E T="03">Access to accounting by individual.</E> (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.</P> <P>(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 § 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 § 1.23(c). (See 5 U.S.C. 552a(c))</P> </SECTION> <SECTION> <SECTNO>§ 1.26</SECTNO> <SUBJECT>Procedures for notification and access to records pertaining to individuals—format and fees for request for access.</SUBJECT> <P>(a) <E T="03">Procedures for notification and access.</E> 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 <PRTPAGE P="41"/>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))</P> <P>(b) <E T="03">Access.</E> 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))</P> <P>(c) <E T="03">Exceptions.</E> 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 § 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.</P> <P>(d) <E T="03">Format of request.</E> (1) A record for notification of whether a record exists shall:</P> <P>(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 § 1.34);</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>(v) Provide such identification of the requester as may be specified in the appropriate appendix to this subpart; and</P> <P>(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”.</P> <P>(2) A request for access to records shall, in addition to complying with paragraph (a)(1)(i) through (vi) of this section:</P> <P>(i) State whether the requester wishes to inspect the records or desires to have a copy made and furnished without first inspecting them;</P> <P>(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</P> <P>(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 <PRTPAGE P="42"/>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))</P> <P>(e) <E T="03">Requests for records not in control of component.</E> (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.</P> <P>(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.</P> <P>(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))</P> <P>(f) <E T="03">Date of receipt of request.</E> 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 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))</P> <P>(g) <E T="03">Notification of determination—</E>(1) <E T="03">In general.</E> 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))</P> <P>(2) <E T="03">Granting of access.</E> 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 <PRTPAGE P="43"/>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, § 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))</P> <P>(3) <E T="03">Requirements for access to medical records.</E> 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))</P> <P>(4) <E T="03">Denial of request.</E> 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).</P> <P>(5) <E T="03">Prohibition against the use of 5 U.S.C. 552 (b) exemptions.</E> Exemptions from disclosure under 5 U.S.C. 552 (b) (31 CFR part 1, Subpart A, § 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))</P> <P>(6) <E T="03">Records exempt in whole or in part.</E> (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 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.</P> <P>(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:</P> <P>(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.</P> <P>(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 <PRTPAGE P="44"/>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.</P> <P>(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.</P> <P>(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)).</P> </SECTION> <SECTION> <SECTNO>§ 1.27</SECTNO> <SUBJECT>Procedures for amendment of records pertaining to individuals—format, agency review and appeal from initial adverse agency determination.</SUBJECT> <P>(a) <E T="03">In general.</E> Subject to the application of exemptions promulgated by the head of each component, in accordance with § 1.23(c), and subject to § 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))</P> <P>(b) <E T="03">Form of request to amend records.</E> In order to be subject to the provisions of this section, a request to amend records shall:</P> <P>(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;</P> <P>(2) State that it is made pursuant to the Privacy Act, 5 U.S.C. 552a or these regulations, have marked “Privacy Act Amendment Request” on the request and on the envelope;</P> <P>(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</P> <P>(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))</P> <P>(c) <E T="03">Date of receipt of request.</E> 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))</P> <P>(d) <E T="03">Review of requests to amend records.</E> Officials responsible for review of requests to amend records pertaining to an individual, as specified in the appropriate appendix to this subpart, shall:</P> <P>(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</P> <P>(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<PRTPAGE P="45"/> </P> <P>(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))</P> <P>(e) <E T="03">Administrative appeal—</E>(1) <E T="03">In general.</E> 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))</P> <P>(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:</P> <P>(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;</P> <P>(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);</P> <P>(iii) Have clearly marked on the appeal and on the envelope, “Privacy Act Amendment Appeal”;</P> <P>(iv) Reasonably describe the records requested to be amended; and</P> <P>(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))</P> <P>(3) <E T="03">Date of receipt.</E> 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))</P> <P>(4) <E T="03">Review of administrative appeals from denial of requests to amend records.</E> 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))</P> <P>(5) <E T="03">Notation on record and distribution of statements of disagreement.</E> 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))</P> <P>(f) <E T="03">Records not subject to correction under the Privacy Act.</E> The following records are not subject to correction or amendment by individuals:<PRTPAGE P="46"/> </P> <P>(1) Transcripts or written statements made under oath; and</P> <P>(2) Transcripts of Grand Jury proceedings, judicial or quasi-judicial proceedings which form the official record of those proceedings; and</P> <P>(3) Pre-sentence reports comprising the property of the courts but maintained in agency files; and</P> <P>(4) Records pertaining to the determination, the collection and the payment of the Federal taxes; and</P> <P>(5) Records duly exempted from correction by notice published in the <E T="04">Federal Register</E>; and</P> <P>(6) Records compiled in reasonable anticipation of a civil action or proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 1.28</SECTNO> <SUBJECT>Training, rules of conduct, penalties for non-compliance.</SUBJECT> <P>(a) <E T="03">Training.</E> 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))</P> <P>(b) <E T="03">Rules of conduct.</E> 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.</P> <P>(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 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.</P> <P>(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:</P> <P>(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;</P> <P>(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):</P> <P>(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);</P> <P>(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.);</P> <P>(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) <PRTPAGE P="47"/>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;</P> <P>(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;</P> <P>(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 <E T="04">Federal Register;</E> </P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(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))</P> <P>(c) <E T="03">Criminal penalties.</E> (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):</P> <P>(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</P> <P>(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.</P> <P>(2) The Act also imposes a collateral criminal penalty on the conduct of any person as follows: </P> <P>“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.” </P> <P>(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).)</P> </SECTION> <SECTION> <SECTNO>§ 1.29</SECTNO> <SUBJECT>Records transferred to Federal Records Center or National Archives of the United States.</SUBJECT> <P>(a) <E T="03">Records transferred to the Administrator of General Services for storage in the Federal Records Center.</E> 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 <PRTPAGE P="48"/>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.</P> <P>(b) <E T="03">Records transferred to the National Archives of the United States.</E> (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</P> <P>(i) Shall not be subject to 5 U.S.C. 552a,</P> <P>(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 <E T="04">Federal Register.</E> </P> <P>(2) <E T="03">Records transferred to National Archives on or after September 27, 1975.</E> 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</P> <P>(i) Shall not be subject to 5 U.S.C. 552a,</P> <P>(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 <E T="04">Federal Register</E> 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))</P> </SECTION> <SECTION> <SECTNO>§ 1.30</SECTNO> <SUBJECT>Application to system of records maintained by Government contractors.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.31</SECTNO> <SUBJECT>Sale or rental of mailing lists.</SUBJECT> <P>(a) <E T="03">In general.</E> An individual's name and address shall not be sold or rented by a component unless such action is specifically authorized by law.</P> <P>(b) <E T="03">Withholding of names and addresses.</E> This section shall not be construed to require the withholding of names and addresses otherwise permitted to be made public. (See 5 U.S.C. 552a (n)).</P> </SECTION> <SECTION> <SECTNO>§ 1.32</SECTNO> <SUBJECT>Use and disclosure of social security numbers.</SUBJECT> <P>(a) <E T="03">In general.</E> 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.</P> <P>(b) <E T="03">Exceptions.</E> The provisions of paragraph (a) of this section shall not apply with respect to:</P> <P>(1) Any disclosure which is required by Federal statute, or</P> <P>(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.</P> <P>(c) <E T="03">Requests for disclosure of social security number.</E> Any component which requests an individual to disclose his or her social security account number shall inform that individual whether:</P> <P>(1) Disclosure is mandatory or voluntary.</P> <P>(2) By what statutory or other authority such number is solicited, and</P> <P>(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.)</P> </SECTION> <SECTION> <SECTNO>§ 1.34</SECTNO> <SUBJECT>Guardianship.</SUBJECT> <P>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, <PRTPAGE P="49"/>act on behalf of such individual. (See 5 U.S.C. 552a (h))</P> </SECTION> <SECTION> <SECTNO>§ 1.35</SECTNO> <SUBJECT>Information forms.</SUBJECT> <P>(a) <E T="03">Review of forms.</E> 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.</P> <P>(b) <E T="03">Scope of review.</E> 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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Revision of forms.</E> Any form which does not meet the objectives specified in the Privacy Act and in this section, shall be revised to conform thereto. A 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.36</SECTNO> <SUBJECT>Systems exempt in whole or in part from provisions of 5 U.S.C. 552a and this part.</SUBJECT> <P>In accordance with 5 U.S.C. 552a (j) and (k) and § 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:</P> <HD SOURCE="HD1">Office of the Secretary</HD> <HD SOURCE="HD1">office of the general counsel</HD> <HD SOURCE="HD2">Notice exempting a system of records from requirements of the Privacy Act</HD> <P>(a) <E T="03">In general.</E> 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 <PRTPAGE P="50"/>to them. The computerized part of the system contains summary data on Treasury Department non-tax litigation and administrative proceedings, <E T="03">e.g.,</E> 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.</P> <P>(b) <E T="03">Authority.</E> 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).</P> <P>(c) <E T="03">Name of system.</E> Treasury Interagency Automated Litigation System (TRIALS).</P> <P>(d) <E T="03">Provisions from which exempted.</E> 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.</P> <P>(e) <E T="03">Reasons for claimed exemptions.</E> 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 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.</P> <HD SOURCE="HD1">office of the inspector general</HD> <HD SOURCE="HD2">Notice exempting a system of records from the disclosure requirements of the Privacy Act of 1974</HD> <P>(a) <E T="03">In general.</E> 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.<PRTPAGE P="51"/> </P> <P>(b) <E T="03">Authority:</E> 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.</P> <P>(c) <E T="03">Exemptions under 5 U.S.C. 552a(j)(2):</E> (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.</P> <P>(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.</P> <P>(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: </P> <EXTRACT> <FP>5 U.S.C. 552a(c)(3) and (4)</FP> <FP>5 U.S.C. 552a(d)(1), (2), (3), (4)</FP> <FP>5 U.S.C. 552a(e)(1)(2) and (3)</FP> <FP>5 U.S.C. 552a(e)(4)(G), (H), and (I)</FP> <FP>5 U.S.C. 552a(e)(5) and (8)</FP> <FP>5 U.S.C. 552a(f)</FP> <FP>5 U.S.C. 552a(g)</FP> </EXTRACT> <P>(d) <E T="03">Exemptions under 5 U.S.C. 552a(k)(2):</E> (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.</P> <P>(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.</P> <P>(3) Provisions of the Privacy Act of 1974 from which exemptions are claimed under 5 U.S.C. 552a(k)(2) are as follows: </P> <EXTRACT> <FP>5 U.S.C. 552a(c)(3)</FP> <FP>5 U.S.C. 552a(d)(1), (2), (3), and (4)</FP> <FP>5 U.S.C. 552a(e)(1)</FP> <FP>5 U.S.C. 552a(e)(4)(G), (H), and (I)</FP> <FP>5 U.S.C. 552a(f)</FP> </EXTRACT> <P>(e) <E T="03">Reasons for exemptions under 5 U.S.C. 552a(j)(2) and (k)(2):</E> (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 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.</P> <P>(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.<PRTPAGE P="52"/> </P> <P>(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.</P> <P>(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:</P> <P>(A) Because it is not possible to detect relevance or necessity of specific information in the early stages of a criminal or other investigation.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(A) 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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(A) The authority under which the information is sought and whether disclosure of the information is mandatory or voluntary.</P> <P>(B) The purposes for which the information is intended to be used,</P> <P>(C) The routine uses which may be made of the information, and</P> <P>(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:</P> <P>(i) The disclosure to the subject of the investigation as stated in (B) above <PRTPAGE P="53"/>would provide the subject with substantial information relating to the nature of the investigation and could impede or compromise the investigation.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(f) <E T="03">Exempt information included in another system.</E> 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.</P> <HD SOURCE="HD1">Assistant Secretary for Administration</HD> <P>The Assistant Secretary for Administration exempts under section (k) of the Privacy Act of 1974, 5 U.S.C. 552a, 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: </P> <EXTRACT> <FP> <E T="03">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.</E> </FP> </EXTRACT> <FP>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.</FP> <P>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.</P> <P>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 <PRTPAGE P="54"/>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.</P> <P>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).</P> <HD SOURCE="HD1">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)</HD> <P>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:</P> <P>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.</P> <HD SOURCE="HD1">Assistant Secretary (Enforcement)</HD> <HD SOURCE="HD1">Financial Crimes Enforcement Network</HD> <HD SOURCE="HD2">Notice of Exempt System</HD> <P>(a) <E T="03">In general.</E> 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.</P> <P>(b) <E T="03">Authority:</E> 5 U.S.C. 552a (j) and (k); 31 CFR 1.23(c).</P> <P>(c) <E T="03">General exemptions under 5 U.S.C. 552a(j)(2).</E> 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: </P> <FP SOURCE="FP-1">5 U.S.C. 552a(c) (3) and (4);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(d) (1), (2), (3) and (4);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a (e) (1), (2) and (3);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(4) (G), (H) and (I);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e) (5) and (8);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(f); and</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(g).</FP> <P>(d) <E T="03">Specific exemptions under 5 U.S.C. 552a(k)(1).</E> 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): </P> <FP SOURCE="FP-1">5 U.S.C. 552a(c)(3);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(d) (1), (2), (3), and (4);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(1);<PRTPAGE P="55"/> </FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(4) (G), (H), and (I); and</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(f).</FP> <P>(e) <E T="03">Specific exemptions under 5 U.S.C. 552a(k)(2).</E> 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): </P> <FP SOURCE="FP-1">5 U.S.C. 552a(c)(3);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(d) (1), (2), (3), and (4);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(1);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(4) (G), (H), and (I); and</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(f).</FP> <P>(f) <E T="03">Reasons for exemptions under 5 U.S.C. 552a (j)(2) and (k)(2).</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(vi) Finally, the dissemination of certain information that FinCEN may maintain in the FinCEN Data Base is restricted by law.<PRTPAGE P="56"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 their criminal activities to other geographical areas, or by destroying or concealing evidence that would form the basis for arrest.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="57"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(iv) During criminal investigations it is often a matter of sound investigative procedure to obtain information from a variety of sources to verify information already obtained.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="58"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 the existence of an ongoing investigation where there is need to keep the existence of the investigation secret.</P> <P>(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.</P> <P>(g) <E T="03">In general.</E> 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.</P> <P>(h)<E T="03"> Authority.</E> 5 U.S.C. 552a(j) and (k); 31 CFR 1.23(c).</P> <P>(i)<E T="03"> General exemptions under 5 U.S.C. 552a(j)(2).</E> 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: </P> <EXTRACT> <FP SOURCE="FP-1">5 U.S.C. 552a(c)(3) and (4);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(d)(1), (2), (3), and (4);<PRTPAGE P="59"/> </FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(1), (2), and (3);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(4)(G), (H), and (I):</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(5) and (8);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(f); and</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(g).</FP> </EXTRACT> <P>(j)<E T="03"> Specific exemptions under 5 U.S.C. 552a(k)(2).</E> 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): </P> <EXTRACT> <FP SOURCE="FP-1">5 U.S.C. 552a(c)(3);</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(d)(1), (2), (3), and (4)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(1)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(4)(G), (H), and (I); and</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(f).</FP> </EXTRACT> <P>(k)<E T="03"> Reasons for exemptions under 5 U.S.C. 552a(j)(2) and (k)(2).</E> (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:</P> <P>(i) Take steps to avoid detection;</P> <P>(ii) Inform associates that an investigation is in progress;</P> <P>(iii) Learn the nature of the investigation;</P> <P>(iv) Learn whether they are only suspects or identified as violators of law;</P> <P>(v) Begin, continue, or resume illegal conduct upon learning that they are not identified in the system of records, or</P> <P>(vi) Destroy evidence needed to prove the violation.</P> <P>(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.</P> <P>(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;</P> <P>(A) Discover the facts that would form the basis of an arrest;</P> <P>(B) Destroy or alter evidence of criminal conduct that would form the basis of their arrest, and</P> <P>(C) Delay or change the commission of a crime that was about to be discovered by investigators.</P> <P>(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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="60"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(i) Disclose investigative techniques and procedures,</P> <P>(ii) Result in threats or reprisals against informers by the subjects of investigations, and</P> <P>(iii) Cause informers to refuse to give full information to criminal investigators for fear of having their identities as sources disclosed.</P> <P>(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 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.</P> <P>(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. § 5318(g)(2) specifically prohibits financial institutions making such reports from notifying any participant in the transaction that a report has been made.<PRTPAGE P="61"/> </P> <P>(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.</P> <P>(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.</P> <P>(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. § 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.</P> <P>(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 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.</P> <P>(l) <E T="03">Exempt information included in another system.</E> 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.</P> <HD SOURCE="HD1">The Internal Revenue Service</HD> <HD SOURCE="HD1">notice of exempt systems</HD> <P>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).</P> <P>(a) <E T="03">Exemptions under 5 U.S.C. 552a (j) (2).</E> (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).</P> <GPOTABLE CDEF="s50,6" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Name of system</CHED> <CHED H="1">No.</CHED> </BOXHD> <ROW> <ENT I="01">Case Management and Time Reporting System, Criminal Investigation Division</ENT> <ENT>46.002</ENT> </ROW> <ROW> <ENT I="01">Confidential Informants, Criminal Investigation Division</ENT> <ENT>46.003</ENT> </ROW> <ROW> <ENT I="01">Electronic Surveillance Files, Criminal Investigation Division</ENT> <ENT>46.005</ENT> </ROW> <ROW> <ENT I="01">Centralized Evaluation and Processing of Information Items (CEPIIs), Criminal Investigation Division</ENT> <ENT>46.009</ENT> </ROW> <ROW> <ENT I="01">Relocated Witnesses, Criminal Investigation Division</ENT> <ENT>46.015</ENT> </ROW> <ROW> <ENT I="01">Secret Service Details, Criminal Investigation Division</ENT> <ENT>46.016</ENT> </ROW> <ROW> <ENT I="01">Treasury Enforcement Communications System (TECS)</ENT> <ENT>46.022</ENT> </ROW> <ROW> <ENT I="01">Automated Information Analysis System</ENT> <ENT>46.050</ENT> </ROW> <ROW> <ENT I="01">Assault and Threat Investigation Files</ENT> <ENT>60.001</ENT> </ROW> <ROW> <PRTPAGE P="62"/> <ENT I="01">Bribery Investigation Files</ENT> <ENT>60.002</ENT> </ROW> <ROW> <ENT I="01">Disclosure Investigation Files</ENT> <ENT>60.004</ENT> </ROW> <ROW> <ENT I="01">Internal Security Management Information System (ISMIS)</ENT> <ENT>60.011</ENT> </ROW> <ROW> <ENT I="01">Chief Counsel Criminal Tax Case Files</ENT> <ENT>90.001</ENT> </ROW> </GPOTABLE> <P>(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.</P> <P>(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.</P> <P>(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: </P> <EXTRACT> <FP>5 U.S.C. 552a(c) (3) and (4)</FP> <FP>5 U.S.C. 552a(d) (1), (2), (3), and (4)</FP> <FP>5 U.S.C. 552a(e) (1), (2), and (3)</FP> <FP>5 U.S.C. 552a(e) (4) (G), (H), and (I)</FP> <FP>5 U.S.C. 552a(e) (5) and (8)</FP> <FP>5 U.S.C. 552a(f)</FP> <FP>5 U.S.C. 552a(g) </FP> </EXTRACT> <P>(5) See paragraph (c) for reasons for the exemptions.</P> <P>(b) <E T="03">Exemptions under 5 U.S.C. 552a (k)(2).</E> (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):</P> <GPOTABLE CDEF="s50,6" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Name of system</CHED> <CHED H="1">No.</CHED> </BOXHD> <ROW> <ENT I="01">Wage and Information Returns Processing (IRP)</ENT> <ENT>22.061</ENT> </ROW> <ROW> <ENT I="01">Acquired Property Records</ENT> <ENT>26.001</ENT> </ROW> <ROW> <ENT I="01">Form 2209, Courtesy Investigations</ENT> <ENT>26.006</ENT> </ROW> <ROW> <ENT I="01">IRS and Treasury Employee Delinquency</ENT> <ENT>26.008</ENT> </ROW> <ROW> <ENT I="01">Litigation Case Files</ENT> <ENT>26.011</ENT> </ROW> <ROW> <ENT I="01">Offer in Compromise (OIC) Files</ENT> <ENT>26.012</ENT> </ROW> <ROW> <ENT I="01">One-hundred Per Cent Penalty Cases</ENT> <ENT>26.013</ENT> </ROW> <ROW> <ENT I="01">Returns Compliance Programs (RCP)</ENT> <ENT>26.016</ENT> </ROW> <ROW> <ENT I="01">TDA (Taxpayer Delinquent Accounts)</ENT> <ENT>26.019</ENT> </ROW> <ROW> <ENT I="01">TDI (Taxpayer Delinquency Investigations) Files</ENT> <ENT>26.020</ENT> </ROW> <ROW> <ENT I="01">Transferee Files</ENT> <ENT>26.021</ENT> </ROW> <ROW> <ENT I="01">Delinquency Prevention Programs</ENT> <ENT>26.022</ENT> </ROW> <ROW> <ENT I="01">Audit Trail Lead Analysis System</ENT> <ENT>34.020</ENT> </ROW> <ROW> <ENT I="01">Applicant Appeal Files</ENT> <ENT>37.002</ENT> </ROW> <ROW> <ENT I="01">Closed Files containing Derogatory Information about Individuals’ practice before the IRS and Files of attorneys and certified public accountants formerly enrolled to Practice</ENT> <ENT>37.003</ENT> </ROW> <ROW> <ENT I="01">Derogatory Information (No Action)</ENT> <ENT>37.004</ENT> </ROW> <ROW> <ENT I="01">Present Suspensions and Disbarments Resulting from Administrative Proceeding</ENT> <ENT>37.005</ENT> </ROW> <ROW> <ENT I="01">Inventory</ENT> <ENT>37.007</ENT> </ROW> <ROW> <ENT I="01">Resigned Enrolled Agents (action pursuant to 31 CFR Section 10.55(b))</ENT> <ENT>37.009</ENT> </ROW> <ROW> <ENT I="01">Present Suspensions from Practice Before the Internal Revenue Service</ENT> <ENT>37.011</ENT> </ROW> <ROW> <ENT I="01">Examination Administrative File</ENT> <ENT>42.001</ENT> </ROW> <ROW> <ENT I="01">Audit Information Management System (AIMS)</ENT> <ENT>42.008</ENT> </ROW> <ROW> <ENT I="01">Classification and Examination Selection Files</ENT> <ENT>42.016</ENT> </ROW> <ROW> <ENT I="01">Compliance Programs and Projects Files</ENT> <ENT>42.021</ENT> </ROW> <ROW> <ENT I="01">International Enforcement Program Files</ENT> <ENT>42.017</ENT> </ROW> <ROW> <ENT I="01">Combined Case Control Files</ENT> <ENT>42.012</ENT> </ROW> <ROW> <ENT I="01">Audit Underreporter Case Files</ENT> <ENT>42.029</ENT> </ROW> <ROW> <ENT I="01">Discriminant Function File (DIF)</ENT> <ENT>42.030</ENT> </ROW> <ROW> <ENT I="01">Appeals Case Files</ENT> <ENT>44.001</ENT> </ROW> <ROW> <ENT I="01">Automated Information Analysis System</ENT> <ENT>46.050</ENT> </ROW> <ROW> <ENT I="01">Disclosure Records</ENT> <ENT>48.001</ENT> </ROW> <ROW> <ENT I="01">Collateral and Information Requests System</ENT> <ENT>49.001</ENT> </ROW> <ROW> <ENT I="01">Component Authority and Index Card Mircofilm Retrieval System</ENT> <ENT>49.002</ENT> </ROW> <ROW> <ENT I="01">Overseas Compliance Projects System</ENT> <ENT>49.007</ENT> </ROW> <ROW> <ENT I="01">Conduct Investigation Files</ENT> <ENT>60.003</ENT> </ROW> <ROW> <ENT I="01">Enrollee Charge Investigation Files</ENT> <ENT>60.006</ENT> </ROW> <ROW> <ENT I="01">Miscellaneous Information File</ENT> <ENT>60.007</ENT> </ROW> <ROW> <ENT I="01">Special Inquiry Investigation Files</ENT> <ENT>60.009</ENT> </ROW> <ROW> <ENT I="01">Chief Counsel Disclosure Litigation Division Case Files</ENT> <ENT>90.002</ENT> </ROW> <ROW> <ENT I="01">Chief Counsel General Legal Services Case Files</ENT> <ENT>90.004</ENT> </ROW> <ROW> <ENT I="01">Chief Counsel General Litigation Case Files</ENT> <ENT>90.005</ENT> </ROW> <ROW> <ENT I="01">Chief Counsel Tax Litigation Case Files</ENT> <ENT>90.009</ENT> </ROW> <ROW> <ENT I="01">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</ENT> <ENT>90.010</ENT> </ROW> <ROW> <ENT I="01">Legal Case Files of the Chief Counsel, Deputy Chief Counsel, Associate Chief Counsels (Litigation) and (Technical)</ENT> <ENT>90.013</ENT> </ROW> <ROW> <ENT I="01">Reports and Information Retrieval Activity Computer and Microfilm Records</ENT> <ENT>90.016</ENT> </ROW> <ROW> <ENT I="01">Correspondence File—Inquiries about Enforcement Activities</ENT> <ENT>00.002</ENT> </ROW> </GPOTABLE> <P>(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.</P> <P>(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: </P> <EXTRACT> <FP>5 U.S.C. 552a(c)(3)</FP> <FP>5 U.S.C. 552a(d) (1), (2), (3), and (4)<PRTPAGE P="63"/> </FP> <FP>5 U.S.C. 552a (e)(1)</FP> <FP>5 U.S.C. 552a(e)(4) (G), (H), and (I)</FP> <FP>5 U.S.C. 552a(f) </FP> </EXTRACT> <P>(4) See paragraph (c) for reasons for the exemptions.</P> <P>(c) <E T="03">Reasons for exemptions.</E> 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.</P> <P>(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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>(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 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.</P> <P>(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:</P> <P>(i) Revealing categories of sources of information could disclose investigative techniques and procedures;</P> <P>(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.</P> <P>(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:</P> <P>(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 <PRTPAGE P="64"/>or other investigation, it is not possible to determine the relevance or necessity of specific information.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(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;</P> <P>(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.</P> <P>(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:</P> <P>(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.</P> <P>(ii) Informing the subject of an investigation of the matters required by this 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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="65"/>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.</P> <P>(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.</P> <P>(d) <E T="03">Exemption under 5 U.S.C. 552a (k)(4).</E> (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.</P> <P>(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.</P> <P>(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”.</P> <P>(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.</P> <P>(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: </P> <EXTRACT> <FP>5 U.S.C. 552a(c)(3)</FP> <FP>5 U.S.C. 552a(d) (1), (2), (3), and (4)</FP> <FP>5 U.S.C. 552a(e)(1)</FP> <FP>5 U.S.C. 552a(e)(4) (G), (H), and (I)</FP> <FP>5 U.S.C. 552a(f) </FP> </EXTRACT> <P>(e) <E T="03">Exemptions under 5 U.S.C. 552a (k)(5).</E> (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):</P> <GPOTABLE CDEF="s50,6" COLS="2" OPTS="L2"> <BOXHD> <CHED H="1">Name of system</CHED> <CHED H="1">No.</CHED> </BOXHD> <ROW> <ENT I="01">Recruiting, Examining and Placement Records</ENT> <ENT> 36.008</ENT> </ROW> <ROW> <ENT I="01">Security, Background, and Character Investigations Files</ENT> <ENT>60.008</ENT> </ROW> <ROW> <ENT I="01">Chief Counsel General Administrative Systems</ENT> <ENT>90.003</ENT> </ROW> <ROW> <ENT I="01">Employee Recruiting Files Maintained by the Operations Division</ENT> <ENT>90.011</ENT> </ROW> <ROW> <ENT I="01">Management Files Maintained by Operations Division and the Deputy Chief Counsel other than the Office of Personnel Management's Official Personnel Files</ENT> <ENT>90.014</ENT> </ROW> </GPOTABLE> <P>(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.</P> <P>(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 <PRTPAGE P="66"/>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.</P> <P>(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.</P> <P>(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: </P> <EXTRACT> <FP>5 U.S.C. 552a(c)(3)</FP> <FP>5 U.S.C. 552a (d) (1), (2), (3), and (4)</FP> <FP>5 U.S.C. 552a(e)(1)</FP> <FP>5 U.S.C. 552a(e)(4) (G), (H), and (I)</FP> <FP>5 U.S.C. 552a (f) </FP> </EXTRACT> <P>(f) <E T="03">Exemption under 5 U.S.C. 552a(k)(6).</E> (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</P> <P>(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.</P> <P>(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.</P> <P>(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: </P> <EXTRACT> <FP>5 U.S.C. 552a(c)(3)</FP> <FP>5 U.S.C. 552a(d)(1), (2), (3), and (4)</FP> <FP>5 U.S.C. 552a(e)(1)</FP> <FP>5 U.S.C. 552a(e)(4) (G), (H), and (I)</FP> <FP>5 U.S.C. 552a (f) </FP> </EXTRACT> <P>(g) <E T="03">Exempt information included in another system.</E> 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 the system for which such exemption is claimed.</P> <EXTRACT> <HD SOURCE="HD1">United States Customs Service</HD> <HD SOURCE="HD1">notice of exempt systems</HD> </EXTRACT> <P>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.</P> <P>a. <E T="03">General exemptions under 5 U.S.C. 552a(j)(2).</E> 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).</P> <P>1. <E T="03">Exempt systems.</E> 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 <E T="04">Federal Register:</E> </P> <EXTRACT> <FP SOURCE="FP-1"> <E T="03">00.285—Automated Index to Central Enforcement Files</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.270—Background—Record File of Non-Customs Employees</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.067—Bank Secrecy Act Reports File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.037—Cargo Security Record System</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.053—Confidential Source Identification File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.287—Customs Automated Licensing Information System (CALIS) [Proposed]</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.127—Internal Security Records System</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.129—Investigations Record System</E> <PRTPAGE P="67"/> </FP> <FP SOURCE="FP-1"> <E T="03">00.171—Pacific Basin Reporting Network</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.213—Seized Asset and Case Tracking System (SEACATS)</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.244—Treasury Enforcement Communications System (TECS)</E> </FP> </EXTRACT> <P>2. <E T="03">Reasons for exemptions,</E> (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.</P> <P>(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 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.</P> <P>(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 <PRTPAGE P="68"/>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.</P> <P>(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.</P> <P>(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 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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="69"/>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).</P> <P>(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.</P> <P>(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: 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 <PRTPAGE P="70"/>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.</P> <P>(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).</P> <P>(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 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.</P> <P>(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 <PRTPAGE P="71"/>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.</P> <P>b. <E T="03">Specific exemptions under 5 U.S.C. 552a(k) (2).</E> 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).</P> <P>1. <E T="03">Exempt systems.</E> 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 <E T="04">Federal Register:</E> </P> <EXTRACT> <FP SOURCE="FP-1"> <E T="03">00.014—Advice Requests (Legal) (Pacific Region)</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.021—Arrest/Seizure/Search Report and Notice of Penalty File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.022—Attorney Case File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.285—Automated Index to Central Enforcement Files</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.270—Background—Record File of Non-Customs Employees</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.067—Bank Secrecy Act Reports File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.037—Cargo Security File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.271—Cargo Security Record System</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.041—Cartmen or Lightermen</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.043—Case Files (Regional Counsel—South Central Region)</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.046—Claims Case File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.053—Confidential Source Identification File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.057—Container Station Operator Files</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.058—Cooperating Individual Files</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.061—Court Case File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.069—Customhouse Brokers File (Chief Counsel)</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.287—Customs Automated Licensing Information System (CALIS)</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.077—Disciplinary Action and Resulting Grievances or Appeal Case Files</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.078—Disclosure of Information File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.098—Fines, Penalties, and Forfeitures Records </E> </FP> <FP SOURCE="FP-1"> <E T="03">00.099—Fines, Penalties, and Forfeiture Files (Supplemental Petitions)</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.100—Fines, Penalties, and Forfeiture Records (Headquarters)</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.122—Information Received File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.125—Intelligence Log</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.127—Internal Security Records System</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.129—Investigations Record System</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.133—Justice Department Case File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.138—Litigation Issue Files</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.140—Lookout Notice</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.155—Narcotics Suspect File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.159—Notification of Personnel Management Division when an employee is placed under investigation by the Office of Internal Affairs.</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.171—Pacific Basin Reporting Network</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.182—Penalty Case File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.186—Personal Search</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.190—Personal Case File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.197—Private Aircraft/Vessel Inspection Reporting System</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.206—Regulatory Audits of Customhouse Brokers</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.212—Search/Arrest/Seizure Report</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.13—Seized Asset and Case Tracking Sytem (SEACATS)</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.214—Seizure File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.224—Suspect Persons Index</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.232—Tort Claims Act File</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.244—Treasury Enforcement Communications System (TECS)</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.258—Violator's Case Files</E> </FP> <FP SOURCE="FP-1"> <E T="03">00.260—Warehouse Proprietor Files</E> </FP> </EXTRACT> <P>2. <E T="03">Reasons for exemptions.</E> (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 <E T="04">Federal Register</E>) 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 <PRTPAGE P="72"/>violation under investigation or inquiry.</P> <P>(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 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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="73"/>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.</P> <P>(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 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).</P> <P>c. <E T="03">Specific exemptions under 5 U.S.C. 552a(k)(5).</E> Pursuant to the provisions of 5 U.S.C. 552a(k)(5), the Commissioner, United States Customs Service, hereby exempts the <E T="03">Internal Security Records System</E> 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.”</P> <FP>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 <PRTPAGE P="74"/>provisions of 5 U.S.C. 552a(k)(2) for the reasons stated under paragraph b. above.</FP> <FP>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.</FP> <FP>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.</FP> <FP>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).</FP> <HD SOURCE="HD1">United States Secret Service</HD> <FP SOURCE="FP-1"> <E T="03">Notice of rules exempting certain systems from requirements of the Privacy Act</E> </FP> <P>(a) <E T="03">In general.</E> 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.</P> <P>(b) <E T="03">Authority.</E> 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.</P> <P>(c) <E T="03">Exempted Systems.</E> </P> <HD SOURCE="HD1">I. U.S. Secret Service Criminal Investigation Information System</HD> <FP>The Criminal Investigation Information System is further described in “Notices of Records Systems” published by the General Services Administration.</FP> <P>(1) <E T="03">Provisions from which exempted.</E> 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.</P> <P>(2) <E T="03">Reasons for claimed exemptions.</E> 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:</P> <P>(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;</P> <P>(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 <PRTPAGE P="75"/>the efforts of law enforcement personnel to detect and arrest persons suspected of criminal activity;</P> <P>(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.</P> <P>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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>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 Criminal Investigation Information System of records is exempted from the foregoing provision are as follows:</P> <P>(i) Revealing sources of information could disclose investigative techniques and procedures;</P> <P>(ii) Revealing sources of information could result in retaliation and threat of reprisal by the subject under investigation against such sources;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(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;</P> <P>(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 <PRTPAGE P="76"/>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;</P> <P>(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.</P> <P>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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(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;<PRTPAGE P="77"/> </P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(i) The notice requirement of the foregoing provision could impede law enforcement by revealing investigative techniques and procedures;</P> <P>(ii) The notice requirement of the foregoing provision could reveal the existence of confidential investigations to individuals who are the subjects of such investigations.</P> <P>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.</P> <HD SOURCE="HD1">II. U.S. Secret Service Non-Criminal Investigation Information System</HD> <FP>The Non-Criminal Investigation Information System is further described in “Notices of Records Systems” published by the General Services Administration.</FP> <P>(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.</P> <P>(2) <E T="03">Reasons for claimed exemptions.</E> 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 Non-Criminal Investigation Information System is exempted from the foregoing provision are as follows;</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>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 <PRTPAGE P="78"/>such records. The reasons why the Non-Criminal Investigation Information System of records is exempted from the foregoing provisions are as follows:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(i) Revealing sources of information would disclose investigative techniques and procedures;</P> <P>(ii) Revealing sources of information would result in retaliation and threat of reprisal by the subject under investigation against such sources;</P> <P>(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;</P> <P>(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.</P> <P>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 provision are as follows:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>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.<PRTPAGE P="79"/> </P> <HD SOURCE="HD1">III. U.S. Secret Service Protection Information System</HD> <FP>The Protection Information System is further described in “Notices of Records Systems” published by the General Services Administration.</FP> <P>(1) <E T="03">Provisions from which exempted.</E> 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.</P> <P>(2) <E T="03">Reasons for claimed exemptions.</E> 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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(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;</P> <P>(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 <PRTPAGE P="80"/>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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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 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.</P> <P>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:</P> <P>(i) Revealing sources of information would disclose investigative techniques and procedures;</P> <P>(ii) Revealing sources of information would result in retaliation and threat of reprisal by the subject of a protective intelligence file;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(i) In gathering protective intelligence information it is difficult to determine accurately the relevancy and <PRTPAGE P="81"/>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;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>g. 5 U.S.C. 552a(e)(5): This provision of the Privacy Act requires an agency to maintain all records which are used <PRTPAGE P="82"/>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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(i) The notice requirement of the foregoing provision could impede Secret Service protective efforts by revealing techniques and procedures;</P> <P>(ii) The notice requirements of the foregoing provision could reveal the existence of confidential investigations to individuals who are the subjects of such investigations.</P> <P>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.</P> <HD SOURCE="HD1">Bureau of Alcohol, Tobacco and Firearms</HD> <HD SOURCE="HD1">notice of systems exempt from certain provisions of the privacy act of 1974</HD> <P>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.</P> <HD SOURCE="HD1">exemptions</HD> <P>(a) <E T="03">General exemptions.</E> 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 <E T="03">Treasury—ATF Criminal Investigation Report System.</E> </P> <P>(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 <PRTPAGE P="83"/>have been grouped together for purposes of this notice.</P> <P>(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).</P> <P>(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 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.</P> <FP>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 <PRTPAGE P="84"/>reasons, ATF seeks exemption of this system from subsections (d)(1), (e)(4)(H) and (f) (2), (3) and (5).</FP> <P>(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).</P> <P>(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).</P> <P>(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).</P> <P>(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 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).</P> <P>(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 <PRTPAGE P="85"/>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).</P> <P>(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).</P> <P>(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 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).</P> <P>(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).</P> <P>(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 <PRTPAGE P="86"/>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).</P> <P>(b) <E T="03">Specific exemptions under section 552a(k)(2).</E> 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 <E T="03">Treasury—ATF—Regulatory Enforcement Record System,</E> the <E T="03">Treasury—ATF—Technical and Scientific Services Record System,</E> and that portion of the <E T="03">Treasury—ATF—Internal Security Record System</E> relating to “conduct of employees” and “integrity of employees” records.</P> <P>(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 subsections have been grouped together for purposes of this notice.</P> <P>(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).</P> <P>(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 <PRTPAGE P="87"/>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).</P> <P>(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).</P> <P>(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 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).</P> <P>(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 <PRTPAGE P="88"/>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).</P> <P>(c) <E T="03">Specific exemptions under section 552a (k)(5).</E> 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 <E T="03">Treasury—ATF—Internal Security Record System</E> relating to “security clearances for employees” records, and the <E T="03">Treasury—ATF—Personnel Record System</E> 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.</P> <P>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.</P> <P>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.</P> <P>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.</P> <P>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).</P> <P>(d) <E T="03">Application of exemptions to records exempt in whole or in part.</E> (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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="89"/>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.</P> <P>(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.</P> <P>(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.</P> <HD SOURCE="HD1">Bureau of Engraving and Printing, Department of the Treasury</HD> <HD SOURCE="HD1">Notice of rules exempting certain systems from requirements of the Privacy Act</HD> <P>(a) <E T="03">In general.</E> 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 exemptions is to maintain the confidentiality of information compiled for the purpose of criminal, non-criminal, employee suitability and security investigations.</P> <P>(b) <E T="03">Authority.</E> These rules are promulgated pursuant to the authority vested in the Secretary of the Treas-ury by 5 U.S.C. 552a(k) and pursuant to the authority vested in the Director, Bureau of Engraving and Printing.</P> <P>(c) <E T="03">Exempted system.</E> Bureau of Engraving and Printing, Office of Security, Investigative Files.</P> <P>(1) <E T="03">Provisions from which exempted.</E> 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.</P> <P>(2) <E T="03">Reasons for claimed exemptions.</E> 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:</P> <P>(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;<PRTPAGE P="90"/> </P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(i) Revealing sources of information could disclose investigative techniques and procedures;</P> <P>(ii) Revealing sources of information could result in retaliation and threat of reprisal by the subject under investigation against such sources;</P> <P>(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;</P> <P>(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.</P> <P>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:</P> <P>(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;</P> <P>(ii) In a security investigation, the Office of Security often obtains information concerning the violation of <PRTPAGE P="91"/>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;</P> <P>(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.</P> <P>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).</P> <P>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: </P> <EXTRACT> <FP> <E T="03">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.</E> </FP> </EXTRACT> <FP>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.</FP> <P>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.</P> <P>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.</P> <P>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).</P> <HD SOURCE="HD1">Bureau of the Mint</HD> <HD SOURCE="HD1">Notice of rules exempting certain systems from requirements of the Privacy Act</HD> <P>(a) <E T="03">In general.</E> 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.</P> <P>(b) <E T="03">Authority.</E> 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 <E T="03">Code of Federal Regulations</E>.</P> <P>(c) <E T="03">Name of systems.</E> Examination Reports of Coins Forwarded to Mint from U.S. Secret Service and Investigatory Files on Theft of Mint Property.</P> <P>(d) <E T="03">Provisions from which exempted.</E> These two systems consist in large part <PRTPAGE P="92"/>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.</P> <P>(e) <E T="03">Reasons for claimed exemptions.</E> 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.</P> <HD SOURCE="HD1">Comptroller of the Currency</HD> <HD SOURCE="HD1">Notice of rules exempting certain systems of records from the requirements of the Privacy Act</HD> <P>(a) <E T="03">In general.</E> The Office of the Comptroller of the Currency exempts the following systems of records from certain provisions of the Privacy Act:</P> <P>(1) Enforcement and Compliance Information;</P> <P>(2) Federal Bureau of Investigation Report Card index;</P> <P>(3) Chief Counsel's Management Information System.</P> <FP>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.</FP> <P>(b) <E T="03">Authority.</E> 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).</P> <P>(c) <E T="03">Exemptions under 5 U.S.C. 552a(j)(2).</E> (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.</P> <P>(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.</P> <P>(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: </P> <EXTRACT> <FP SOURCE="FP-1">5 U.S.C. 552a(c)(3) and (4)<PRTPAGE P="93"/> </FP> <FP SOURCE="FP-1">5 U.S.C. 552a(d)(1), (2), (3), (4)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(1), (2), and (3)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(4)(G), (H), and (I)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(5) and (8)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(f)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(g)</FP> </EXTRACT> <P>(d) <E T="03">Exemptions under 5 U.S.C. 552a(k)(2).</E> (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.</P> <P>(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.</P> <P>(3) Provisions of the Privacy Act of 1974 from which exemptions are claimed under 5 U.S.C. 552a(k)(2) are as follows: </P> <EXTRACT> <FP SOURCE="FP-1">5 U.S.C. 552a(c)(3)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(d)(1), (2), (3), and (4)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(1)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(e)(4)(G), (H), and (I)</FP> <FP SOURCE="FP-1">5 U.S.C. 552a(f)</FP> </EXTRACT> <P>(e) <E T="03">Reasons for exemptions under 5 U.S.C. 552a(j)(2) and (k)(2).</E> (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.</P> <P>(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 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.</P> <P>(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.</P> <P>(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:</P> <P>(i) Because it is not possible to detect relevance or necessity of specific information in the early stages of a criminal or other investigation.</P> <P>(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.</P> <P>(iii) In any investigation the Comptroller of the Currency may obtain information concerning violations of <PRTPAGE P="94"/>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.</P> <P>(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.</P> <P>(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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(A) The authority under which the information is sought and whether disclosure of the information is mandatory or voluntary,</P> <P>(B) The purposes for which the information is intended to be used,</P> <P>(C) The routine uses which may be made of the information, and</P> <P>(D) The effects on the subject, if any, of not providing the requested information.</P> <P>(ii) The reasons for exempting these systems of records from the foregoing provision are as follows:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="95"/>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.</P> <P>(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.</P> <P>(f) <E T="03">Documents exempted.</E> Exemption will be claimed for certain records only where appropriate under the above provisions.</P> <HD SOURCE="HD1">OFFICE OF THRIFT SUPERVISION</HD> <HD SOURCE="HD1">NOTICE OF EXEMPT SYSTEMS</HD> <P>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.</P> <P>a. <E T="03">General exemptions under 5 U.S.C. 552a(j)(2).</E> 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).</P> <P>1. <E T="03">Exempt Systems.</E> 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 <E T="04">Federal Register</E> </P> <FP SOURCE="FP-2">.001 — Confidential Individual Information System</FP> <FP SOURCE="FP-2">.004 — Criminal Referral Database</FP> <P>2. <E T="03">Reasons for exemptions.</E> (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 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.</P> <P>(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 <PRTPAGE P="96"/>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.</P> <P>(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.</P> <P>(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 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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="97"/>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.</P> <P>(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).</P> <P>(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 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.</P> <P>(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 <PRTPAGE P="98"/>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.</P> <P>(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).</P> <P>(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 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.</P> <P>(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 <PRTPAGE P="99"/>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.</P> <P>b. <E T="03">Specific exemptions under 5 U.S.C. 552a(k)(2).</E> 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).</P> <P>1. <E T="03">Exempt Systems.</E> 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 <E T="04">Federal Register:</E> </P> <FP SOURCE="FP-2">.001 — Confidential Individual Information System</FP> <FP SOURCE="FP-2">.004 — Criminal Referral Database</FP> <P>2. <E T="03">Reasons for exemptions.</E> (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.</P> <P>(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 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 <PRTPAGE P="100"/>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.</P> <P>(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.</P> <P>(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 which would form the basis for prosecution or the imposition of civil sanctions.</P> <P>(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 <PRTPAGE P="101"/>believes that it is appropriate to exempt the above-listed systems of records from provisions of 5 U.S.C. 552a(e)(1).</P> <CITA>[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; 64 FR 62586, Nov. 17, 1999]</CITA> <HD SOURCE="HD1">Appendices to subpart C</HD> </SECTION> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. A</EAR> <HD SOURCE="HED">Appendix A—Departmental Offices</HD> <P>1. <E T="03">In general</E>. This appendix applies to the Departmental Offices as defined in 31 CFR part 1, subpart C, § 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”.</P> <P>2. <E T="03">Requests for notification and access to records and accountings of disclosures</E>. 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:</P> <P>Privacy Act Request, DO, Department of the Treasury, 1500 Pennsylvania Avenue, NW., Washington, DC 20220.</P> <P>Requests may be delivered personally to the Main Treasury Building, Room 5030, 1500 Pennsylvania Avenue NW., Washington, DC.</P> <P>3. <E T="03">Requests for amendments of records</E>. 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.</P> <P>4. <E T="03">Administrative appeal of initial determination refusing to amend record</E>. 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 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:</P> <P>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.</P> <P>5. <E T="03">Statements of disagreement</E>. “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.</P> <P>6. <E T="03">Service of process</E>. 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:</P> <P>General Counsel, Department of the Treasury, Room 3000, Main Treasury Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220.</P> <P>7. <E T="03">Annual notice of systems of records.</E> 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.</P> <P>8. <E T="03">Verification of identity.</E> 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:<PRTPAGE P="102"/> </P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <FP>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.</FP> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. B</EAR> <HD SOURCE="HED">Appendix B—Internal Revenue Service</HD> <P>1. <E T="03">Purpose.</E> 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:</P> <P>(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)).</P> <P>(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)).</P> <P>(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)).</P> <P>(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)).</P> <P>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 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.</P> <P>2. <E T="03">Access to and amendment of tax records.</E> 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 <PRTPAGE P="103"/>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.</P> <P>3. <E T="03">Procedures for access to records—</E>(a) <E T="03">In general.</E> 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.</P> <P>(b) <E T="03">Form of request for notification and access or request for an accounting of disclosures.</E> (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.</P> <P>(ii) Such request shall be clearly marked, “Request for notification and access,” or “Request for accounting of disclosures.”</P> <P>(iii) Such a request shall contain a statement that it is being made under the provisions of the Privacy Act of 1974.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Time and place for making a request.</E> 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.</P> <P>(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:<PRTPAGE P="104"/> </P> <HD SOURCE="HD1">Request for Notification and Access to Records by Mail</HD> <P>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. </P> <FP>System Name:</FP> <FP>System Location:</FP> <FP>Designated Official:</FP> <P SOURCE="P-DASH"/> <FP SOURCE="FRP">John Doe</FP> <HD SOURCE="HD1">Request for Notification and Access to Records in Person</HD> <P>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. </P> <FP>System Name:</FP> <FP>System Location:</FP> <FP>Designated Official:</FP> <P SOURCE="P-DASH"/> <FP SOURCE="FRP">John Doe</FP> <P>(e) <E T="03">Processing a request for notification and access to records or a request for an accounting of disclosures.</E> (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.</P> <P>(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 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.</P> <P>(f) <E T="03">Granting of access.</E> 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.</P> <P>(g) <E T="03">Medical records.</E> 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.</P> <P>(h) <E T="03">Verification of identity.</E> 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:</P> <P>(i) An individual seeking notification or access to records in person, or seeking to amend a record in person, may establish <PRTPAGE P="105"/>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).</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(i) <E T="03">Fees.</E> 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.</P> <P>4. <E T="03">Procedures for amendment of records.</E> (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.</P> <P>(b) <E T="03">Amendment of record.</E> 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.</P> <P>(c) <E T="03">Form of request for amendment of record.</E> (i) A request for amendment of a record shall be in writing and shall be signed by the individual making the request.</P> <P>(ii) Such request shall be clearly marked “Request for amendment of record.”</P> <P>(iii) Such request shall contain a statement that it is being made under the provisions of the Privacy Act of 1974.</P> <P>(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.</P> <P>(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).</P> <P>(vi) Such request shall specify the particular record in the system which the individual is seeking to amend.</P> <P>(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.</P> <P>(d) <E T="03">Time and place for making request.</E> 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.<PRTPAGE P="106"/> </P> <P>(e) <E T="03">Processing a request for amendment of a record.</E> (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.</P> <P>(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.</P> <P>(f) <E T="03">Administrative review of adverse determination.</E> 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.</P> <P>(g) <E T="03">Form of request for review.</E> (i) A request for review of an adverse determination shall be in writing and shall be signed by the individual making the request.</P> <P>(ii) Such request shall be clearly marked “Request for review of adverse determination”.</P> <P>(iii) Such request shall contain a statement that it is being made under the provisions of the Privacy Act of 1974.</P> <P>(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.</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <P>(h) <E T="03">Time and place for making the request.</E> 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.</P> <P>(i) <E T="03">Processing a request for review of adverse determination.</E> Within 30 days (not including Saturdays, Sundays, and legal public holidays) after the receipt of a request for review <PRTPAGE P="107"/>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.</P> <P>(j) <E T="03">Statement of disagreement.</E> 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.</P> <P>(k) <E T="03">Judicial review.</E> 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.</P> <P>5. <E T="03">Records transferred to Federal Records Centers.</E> 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.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. C</EAR> <HD SOURCE="HED">Appendix C—United States Customs Service</HD> <P>1. <E T="03">In general.</E> 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”.</P> <P>2. <E T="03">Requests for notification and access to records and accounting of disclosures.</E> (a) For records which are maintained at the United <PRTPAGE P="108"/>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.</P> <P>(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.</P> <P>(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”.</P> <P>3. <E T="03">Request for amendment of records.</E> (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.</P> <P>(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.</P> <P>(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”.</P> <P>4. <E T="03">Administrative appeal of initial determination refusing to amend records.</E> 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”.</P> <P>5. <E T="03">Statements of disagreement.</E> “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.</P> <P>6. <E T="03">Service of process.</E> Service of process will be received by the Chief Counsel, United States Customs Service, 1301 Constitution Avenue NW., Washington, DC 20229.</P> <P>7. <E T="03">Annual notice of systems of records.</E> The annual notice of the United States Customs Service systems of records required to be 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”.</P> <P>8. <E T="03">Verification of identity.</E> 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”.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. D</EAR> <HD SOURCE="HED">Appendix D—United States Secret Service</HD> <P>1. <E T="03">In general.</E> 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”.<PRTPAGE P="109"/> </P> <P>2. <E T="03">Requests for notification and access to records and accountings of disclosures.</E> 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.</P> <P>a. <E T="03">Identification requirements</E>. 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.</P> <P>b. <E T="03">Individuals making requests in person</E>. 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.</P> <P>c. <E T="03">Physical inspection of records</E>. 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.</P> <P>3. <E T="03">Requests for amendment of records</E>. 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.</P> <P>4. <E T="03">Administrative appeal of initial determinations refusing amendment of records.</E> 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.</P> <P>5. <E T="03">Statements of disagreement</E>. “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.</P> <P>6. <E T="03">Service of process</E>. Service of process will be received by the United States Secret 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.</P> <P>7. <E T="03">Annual notice of systems of records</E>. 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.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. E</EAR> <HD SOURCE="HED">Appendix E—Bureau of Alcohol, Tobacco and Firearms</HD> <P>1. <E T="03">In general.</E> 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 <PRTPAGE P="110"/>the Office of the Federal Register in “Privacy Act Issuances”.</P> <P>2. <E T="03">Requests for notification and access to records and accountings of disclosures.</E> 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.</P> <P>3. <E T="03">Requests for amendment of record.</E> 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.</P> <P>4. <E T="03">Verification of identity.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>5. <E T="03">Request for physical inspection of records.</E> 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.</P> <P>6. <E T="03">Requests for copies of records without prior physical inspection.</E> 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 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.</P> <P>7. <E T="03">Administrative appeal of initial determination refusing to amend record.</E> 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.</P> <P>8. <E T="03">Statements of disagreement.</E> “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.</P> <P>9. <E T="03">Service of process.</E> 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.<PRTPAGE P="111"/> </P> <P>10. <E T="03">Annual notice of systems of records.</E> 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.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. F</EAR> <HD SOURCE="HED">Appendix F—Bureau of Engraving and Printing</HD> <P>1. <E T="03">In general.</E> 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.”</P> <P>2. <E T="03">Requests for notification and access to records and accountings of disclosures.</E> 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.</P> <P>3. <E T="03">Requests for amendment of records.</E> 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.</P> <P>4. <E T="03">Administrative appeal of initial determinations refusing amendment of records.</E> 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.</P> <P>5. <E T="03">Statements of disagreement.</E> “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.</P> <P>6. <E T="03">Service of process.</E> 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.</P> <P>7. <E T="03">Verification of identity.</E> 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:</P> <P>(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).</P> <P>(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.</P> <P>(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 <PRTPAGE P="112"/>requesting or obtaining access to records under false pretenses.</P> <P>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.</P> <P>8. <E T="03">Annual notice of systems of records.</E> 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.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. G</EAR> <HD SOURCE="HED">Appendix G—Financial Management Service</HD> <P>1. <E T="03">In general.</E> 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”.</P> <P>2. <E T="03">Requests for notification and access to records and accountings of disclosures.</E> 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.</P> <P>3. <E T="03">Requests for amendment of records.</E> 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.</P> <P>4. <E T="03">Administrative appeal of initial determinations refusing amendment of records.</E> Appellate 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.</P> <P>5. <E T="03">Statements of disagreement.</E> “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.</P> <P>6. <E T="03">Service of process.</E> 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.</P> <P>7. <E T="03">Annual notice of systems of records.</E> 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.</P> </APPENDIX> <APPENDIX> <PRTPAGE P="113"/> <EAR>Pt. 1, Subpt. C, App. H</EAR> <HD SOURCE="HED">Appendix H—United States Mint</HD> <P>1. <E T="03">In general.</E> 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”.</P> <P>2. <E T="03">Requests for notification and access to records and accountings of disclosures.</E> 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.</P> <P>3. <E T="03">Requests for amendment of records.</E> 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.</P> <P>4. <E T="03">Administrative appeal of initial determinations refusing amendment of records.</E> 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.</P> <P>5. <E T="03">Statements of disagreement.</E> “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.</P> <P>6. <E T="03">Service of process.</E> 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.</P> <P>7. <E T="03">Annual notice of systems of records.</E> 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.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. I</EAR> <HD SOURCE="HED">Appendix I—Bureau of the Public Debt</HD> <P>1. <E T="03">In general.</E> 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”.</P> <P>2. <E T="03">Requests for notification and access to records and accountings of disclosures.</E> 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 <PRTPAGE P="114"/>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.</P> <P>3. <E T="03">Requests for amendment of records.</E> 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.</P> <P>4. <E T="03">Administrative appeal of initial determinations refusing amendment of records.</E> 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.</P> <P>5. <E T="03">Statements of disagreement.</E> “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.</P> <P>6. <E T="03">Service of process.</E> 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.</P> <P>7. <E T="03">Annual notice of systems of records.</E> 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.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. J</EAR> <HD SOURCE="HED">Appendix J—Office of the Comptroller of the Currency</HD> <P>1. <E T="03">In general.</E> 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 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”.</P> <P>2. <E T="03">Requests for notification and access to records and accountings of disclosures.</E> 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.</P> <P>3. <E T="03">Requests for amendment of records.</E> 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.</P> <P>4. <E T="03">Administrative appeal of initial determinations refusing amendment of records.</E> 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 <PRTPAGE P="115"/>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.</P> <P>5. <E T="03">Statements of disagreement.</E> “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.</P> <P>6. <E T="03">Service of process.</E> 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.</P> <P>7. <E T="03">Annual notice of systems of records.</E> 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.</P> <CITA>[52 FR 26305, July 14, 1987, as amended at 60 FR 57333, Nov. 15, 1995]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. K</EAR> <HD SOURCE="HED">Appendix L—Federal Law Enforcement Training Center</HD> <P>1. <E T="03">In general.</E> 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”.</P> <P>2. <E T="03">Requests for notification and access to records and accounting of disclosures.</E> 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.</P> <P>3. <E T="03">Requests for amendment of records.</E> 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.</P> <P>4. <E T="03">Administrative appeal of initial determinations refusing amendment of records.</E> 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.</P> <P>5. <E T="03">Statements of disagreement.</E> “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.</P> <P>6. <E T="03">Service of process.</E> 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.</P> <P>7. <E T="03">Annual notice of systems of records.</E> 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 <PRTPAGE P="116"/>and 1.27 are indicated in the notice for the pertinent system.</P> <CITA>[52 FR 26305, July 14, 1987. Redesignated at 65 FR 2334, Jan. 14, 2000]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 1, Subpt. C, App. L</EAR> <HD SOURCE="HED">Appendix M—Office of Thrift Supervision</HD> <P>1. <E T="03">In general.</E> 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.”</P> <P>2. <E T="03">Requests for notification and access to records and accounting of disclosures.</E> 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.</P> <P>Requests may be delivered in person to: Office of Thrift Supervision, Information Services Division, 1700 G Street, NW., Washington, DC.</P> <P>3. <E T="03">Requests for amendments of records.</E> 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.</P> <P>Privacy Act Amendment Requests may be delivered in person to: Office of Thrift Supervision, Information Services Division, 1700 G Street, NW., Washington, DC.</P> <P>4. <E T="03">Administrative appeal of initial determination refusing to amend record.</E> 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.</P> <P>Appeals may be delivered in person to: Office of Thrift Supervision, Information Services Division, 1700 G Street, NW., Washington, DC.</P> <P>5. <E T="03">Statements of Disagreement.</E> “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.</P> <P>6. <E T="03">Service of process.</E> 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.</P> <P>7. <E T="03">Annual notice of systems of record.</E> 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.</P> <P>8. <E T="03">Verification of identity.</E> 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 Office of Thrift Supervision on any such request:</P> <P>(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 <PRTPAGE P="117"/>both a name and signature (such as a driver's license or credit card).</P> <P>(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.</P> <P>(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.</P> <CITA>[60 FR 31633, June 16, 1995. Redesignated at 65 FR 2334, Jan. 14, 2000]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 2</EAR> <HD SOURCE="HED">PART 2—NATIONAL SECURITY INFORMATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Original Classification</HD> <SECHD>Sec.</SECHD> <SECTNO>2.1</SECTNO> <SUBJECT>Classification levels [1.1(a)].</SUBJECT> <SECTNO>2.2</SECTNO> <SUBJECT>Classification Authority.</SUBJECT> <SECTNO>2.3</SECTNO> <SUBJECT>Listing of original classification authorities.</SUBJECT> <SECTNO>2.4</SECTNO> <SUBJECT>Record requirements.</SUBJECT> <SECTNO>2.5</SECTNO> <SUBJECT>Classification categories.</SUBJECT> <SECTNO>2.6</SECTNO> <SUBJECT>Duration of classification.</SUBJECT> <SECTNO>2.7</SECTNO> <SUBJECT>Identification and markings [1.5(a), (b) (c)].</SUBJECT> <SECTNO>2.8</SECTNO> <SUBJECT>Limitations on classification [1.6(c)].</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Derivative Classification</HD> <SECTNO>2.9</SECTNO> <SUBJECT>Derivative Classification Authority.</SUBJECT> <SECTNO>2.10</SECTNO> <SUBJECT>Listing derivative classification authorities.</SUBJECT> <SECTNO>2.11</SECTNO> <SUBJECT>Use of derivative classification [2.1].</SUBJECT> <SECTNO>2.12</SECTNO> <SUBJECT>Classification guides.</SUBJECT> <SECTNO>2.13</SECTNO> <SUBJECT>Derivative identification and markings [1.5(c) and 2.1(b)].</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Downgrading and Declassification</HD> <SECTNO>2.14</SECTNO> <SUBJECT>Listing downgrading and declassification authorities [3.1(b)].</SUBJECT> <SECTNO>2.15</SECTNO> <SUBJECT>Declassification policy [3.1].</SUBJECT> <SECTNO>2.16</SECTNO> <SUBJECT>Downgrading and declassification markings.</SUBJECT> <SECTNO>2.17</SECTNO> <SUBJECT>Systematic review for declassification [3.3].</SUBJECT> <SECTNO>2.18</SECTNO> <SUBJECT>Mandatory declassification review [3.4].</SUBJECT> <SECTNO>2.19</SECTNO> <SUBJECT>Assistance to the Department of State [3.3(b)].</SUBJECT> <SECTNO>2.20</SECTNO> <SUBJECT>Freedom of Information/Privacy Act requests [3.4].</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Safeguarding</HD> <SECTNO>2.21</SECTNO> <SUBJECT>General [4.1].</SUBJECT> <SECTNO>2.22</SECTNO> <SUBJECT>General restrictions on access [4.1].</SUBJECT> <SECTNO>2.23</SECTNO> <SUBJECT>Access by historical researchers and former presidential appointees [4.3].</SUBJECT> <SECTNO>2.24</SECTNO> <SUBJECT>Dissemination [4.1(d)].</SUBJECT> <SECTNO>2.25</SECTNO> <SUBJECT>Standards for security equipment [4.1(b) and 5.1(b)].</SUBJECT> <SECTNO>2.26</SECTNO> <SUBJECT>Accountability procedures [4.1(b)].</SUBJECT> <SECTNO>2.27</SECTNO> <SUBJECT>Storage [4.1(b)].</SUBJECT> <SECTNO>2.28</SECTNO> <SUBJECT>Transmittal [4.1(b)].</SUBJECT> <SECTNO>2.29</SECTNO> <SUBJECT>Telecommunications and computer transmissions.</SUBJECT> <SECTNO>2.30</SECTNO> <SUBJECT>Special access programs [1.2(a) and 4.2(a)].</SUBJECT> <SECTNO>2.31</SECTNO> <SUBJECT>Reproduction controls [4.1(b)].</SUBJECT> <SECTNO>2.32</SECTNO> <SUBJECT>Loss or possible compromise [4.1(b)].</SUBJECT> <SECTNO>2.33</SECTNO> <SUBJECT>Responsibilities of holders [4.1(b)].</SUBJECT> <SECTNO>2.34</SECTNO> <SUBJECT>Inspections [4.1(b)].</SUBJECT> <SECTNO>2.35</SECTNO> <SUBJECT>Security violations.</SUBJECT> <SECTNO>2.36</SECTNO> <SUBJECT>Disposition and destruction [4.1(b)].</SUBJECT> <SECTNO>2.37</SECTNO> <SUBJECT>National Security Decision Directive 197.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Implementation and Review</HD> <SECTNO>2.38</SECTNO> <SUBJECT>Departmental management.</SUBJECT> <SECTNO>2.39</SECTNO> <SUBJECT>Bureau administration.</SUBJECT> <SECTNO>2.40</SECTNO> <SUBJECT>Emergency planning [4.1(b)].</SUBJECT> <SECTNO>2.41</SECTNO> <SUBJECT>Emergency authority [4.1(b)].</SUBJECT> <SECTNO>2.42</SECTNO> <SUBJECT>Security education [5.3(a)].</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—General Provisions</HD> <SECTNO>2.43</SECTNO> <SUBJECT>Definitions [6.1].</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 321; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 1644, Jan. 17, 1990, unless otherwise noted.</P> </SOURCE> <SUBPART> <PRTPAGE P="118"/> <HD SOURCE="HED">Subpart A—Original Classification</HD> <SECTION> <SECTNO>§ 2.1</SECTNO> <SUBJECT>Classification levels [1.1(a)].<SU>1</SU> <FTREF/> </SUBJECT> <FTNT> <P> <SU>1</SU> Related references are related to sections of Executive Order 12356, 47 FR 14874, April 6, 1982.</P> </FTNT> <P>(a) National security information (hereinafter also referred to as “classified information”) shall be classified at one of the following three levels:</P> <P>(1) <E T="03">Top Secret</E> shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.</P> <P>(2) <E T="03">Secret</E> shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security.</P> <P>(3) <E T="03">Confidential</E> shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security.</P> <P>(b) <E T="03">Limitations [1.1(b)].</E> 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.</P> <P>(c) <E T="03">Reasonable Doubt [1.1(c)].</E> 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 § 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 § 2.7.</P> </SECTION> <SECTION> <SECTNO>§ 2.2</SECTNO> <SUBJECT>Classification Authority.</SUBJECT> <P>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 <E T="04">Federal Register</E>. 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.</P> <CITA>[63 FR 14357, Mar. 25, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.3</SECTNO> <SUBJECT>Listing of original classification authorities.</SUBJECT> <P>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 <PRTPAGE P="119"/>include relinquishment of this authority where the Assistant Secretary (Management) determines that a firm basis for retention does not exist.</P> </SECTION> <SECTION> <SECTNO>§ 2.4</SECTNO> <SUBJECT>Record requirements.</SUBJECT> <P>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”.</P> </SECTION> <SECTION> <SECTNO>§ 2.5</SECTNO> <SUBJECT>Classification categories.</SUBJECT> <P>(a) <E T="03">Classification in Context of Related Information [1.3(b)].</E> 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.</P> <P>(b) <E T="03">Unofficial Publication or Disclosure [1.3(d)].</E> 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 § 2.32.</P> </SECTION> <SECTION> <SECTNO>§ 2.6</SECTNO> <SUBJECT>Duration of classification.</SUBJECT> <P>(a) <E T="03">Information Not Marked for Declassification [1.4].</E> Information classified under predecessor orders that is not subject to automatic declassification shall remain classified until reviewed for possible declassification.</P> <P>(b) <E T="03">Authority to Extend Automatic Declassification Determinations [1.4(b)].</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2.7</SECTNO> <SUBJECT>Identification and markings [1.5(a), (b) and (c)].</SUBJECT> <P>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.</P> <P>(a) <E T="03">Classification Level.</E> The markings “Top Secret,” “Secret,” and “Confidential” are used to indicate: information that requires protection as classified information under the Order; <PRTPAGE P="120"/>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.</P> <P>(1) <E T="03">Overall Marking.</E> 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).</P> <P>(2) <E T="03">Page Marking.</E> 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.</P> <P>(3) <E T="03">Portion Marking.</E> Only the Secretary of the Treasury may waive the portion marking requirement for specified classes of documents or information upon a written determination that:</P> <P>(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</P> <P>(ii) There is some other basis to conclude that the potential benefits of portion marking are clearly outweighed by the increased administrative burdens.</P> <P>(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 <E T="03">not</E> 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.</P> <P>(c) <E T="03">Classification Authority.</E> 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)”.</P> <P>(d) <E T="03">Bureau and Office of Origin.</E> 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.</P> <P>(e) <E T="03">Downgrading and Declassification Instructions.</E> Downgrading and, as applicable, declassification instructions shall be shown as follows:</P> <P>(1) For information to be declassified automatically on a specific date: </P> <EXTRACT> <FP SOURCE="FP-DASH">Classified by</FP> <FP SOURCE="FP-DASH">Office</FP> <FP SOURCE="FP-DASH">Declassify on (date)</FP> </EXTRACT> <P>(2) For information to be declassified automatically upon the occurrence of a specific event: </P> <EXTRACT> <FP SOURCE="FP-DASH">Classified by</FP> <FP SOURCE="FP-DASH">Office</FP> <FP SOURCE="FP-DASH">Declassify on (description of event) </FP> </EXTRACT> <P>(3) For information not to be declassified automatically: </P> <EXTRACT> <FP SOURCE="FP-DASH">Classified by</FP> <FP SOURCE="FP-DASH">Office</FP> <FP>Declassify on <E T="03">Origination Agency's Determination Required or “OADR”</E> </FP> </EXTRACT> <P>(4) For information to be downgraded automatically on a specific date or upon occurrence of a specific event: </P> <EXTRACT> <FP SOURCE="FP-DASH">Classified by</FP> <FP SOURCE="FP-DASH">Office</FP> <FP SOURCE="FP-DASH">Downgrade to</FP> <FP SOURCE="FP-DASH">on (date or description of event) </FP> </EXTRACT> <P>(f) <E T="03">Special Markings</E>—(1) <E T="03">Transmittal Documents [1.5(c)].</E> 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:<PRTPAGE P="121"/> </P> <P>(i) For an unclassified transmittal document: </P> <EXTRACT> <FP>Unclassified When Classified</FP> <FP>Enclosure(s) Detached.</FP> </EXTRACT> <P>(ii) For a classified transmittal document: </P> <EXTRACT> <FP>Upon Removal of Attachment(s)</FP> <FP SOURCE="FP-DASH">this Document is </FP> </EXTRACT> <FP>(classification level of the transmittal document alone), or:</FP> <EXTRACT> <FP SOURCE="FP-DASH">This Document is Classified</FP> <FP>with Unclassified Attachment(s).</FP> </EXTRACT> <P>(2) <E T="03">Restricted Data or Formerly Restricted Data [6.2(a)].</E> 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.</P> <P>(3) <E T="03">Intelligence Sources or Methods [1.5(c)].</E> 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.</P> <P>(4) <E T="03">Foreign Government Information (FGI) [1.5(c)].</E> 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.</P> <P>(5) <E T="03">National Security Information [4.1(c)].</E> Classified information furnished outside the Executive Branch shall show the following marking: </P> <EXTRACT> <FP>NATIONAL SECURITY INFORMATION</FP> <FP>Unauthorized Disclosure Subject to</FP> <FP>Administrative and Criminal Sanctions</FP> </EXTRACT> <P>(6) <E T="03">Automated Data Processing (ADP) and Computer Output [1.5(c)].</E> (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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="122"/>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.</P> <P>(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.</P> <P>(g) <E T="03">Electronically Transmitted Information (Messages) [1.5(c)].</E> Classified information that is transmitted electronically shall be marked as follows:</P> <P>(1) The highest level of classification shall appear before the first line of text;</P> <P>(2) A “CLASSIFIED BY” line is not required;</P> <P>(3) The duration of classification shall appear as follows:</P> <P>(i) For information to be declassified automatically on a specific date: “DECL: (date)”;</P> <P>(ii) For information to be declassified upon occurrence of a specific event: “DECL: (description of event)”;</P> <P>(iii) For information not to be automatically declassified which requires the originating agency's determination (see also § 2.7(e)(3)): “DECL: OADR”;</P> <P>(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)”.</P> <P>(4) Portion marking shall be as prescribed in § 2.7(a)(3);</P> <P>(5) Specially designated markings as prescribed in § 2.7(f) (2), (3), and (4) shall appear after the marking for the highest level of classification. These include:</P> <P>(i) Restricted Data or Formerly Restricted Data;</P> <P>(ii) Information concerning intelligence sources or methods: “WNINTEL,” unless otherwise prescribed by the Director of Central Intelligence; and</P> <P>(iii) Foreign Government Information (FGI).</P> <P>(6) Paper copies of electronically transmitted messages shall be marked as provided in § 2.7(a) (1), (2), and (3).</P> <P>(h) <E T="03">Changes in Classification Markings [4.1(b)].</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2.8</SECTNO> <SUBJECT>Limitations on classification [1.6(c)].</SUBJECT> <P>(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:</P> <P>(1) The elapsed time following disclosure;</P> <P>(2) The nature and extent of disclosure;<PRTPAGE P="123"/> </P> <P>(3) The ability to bring the fact of reclassification to the attention of persons to whom the information was disclosed;</P> <P>(4) The ability to prevent further disclosure; and</P> <P>(5) The ability to retrieve the information voluntarily from persons not authorized access in its reclassified state.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Derivative Classification</HD> <SECTION> <SECTNO>§ 2.9</SECTNO> <SUBJECT>Derivative Classification Authority.</SUBJECT> <P>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).</P> <CITA>[63 FR 14357, Mar. 25, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.10</SECTNO> <SUBJECT>Listing derivative classification authorities.</SUBJECT> <P>Delegations of derivative classification authority to officials not otherwise identified in § 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.</P> </SECTION> <SECTION> <SECTNO>§ 2.11</SECTNO> <SUBJECT>Use of derivative classification [2.1].</SUBJECT> <P>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 <PRTPAGE P="124"/>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 § 2.13.</P> </SECTION> <SECTION> <SECTNO>§ 2.12</SECTNO> <SUBJECT>Classification guides.</SUBJECT> <P>(a) <E T="03">General [2.2(a)].</E> 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:</P> <P>(1) Identify and categorize the elements of information to be protected;</P> <P>(2) State which classification level applies to each element or category of information; and</P> <P>(3) Prescribe declassification instructions for each element or category of information in terms of:</P> <P>(i) A period of time,</P> <P>(ii) The occurrence of an event, or</P> <P>(iii) A notation that the information shall not be declassified automatically without the approval of the originating agency i.e., “OADR”.</P> <P>(b) <E T="03">Review and Record Requirements [2.2(a)].</E> (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).</P> <P>(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.</P> <P>(c) <E T="03">Waivers [2.2(c)].</E> 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:</P> <P>(1) The ability to segregate and describe the elements of information;</P> <P>(2) The practicality of producing or disseminating the guide because of the nature of the information;</P> <P>(3) The anticipated usage of the guide as a basis for derivative classification; and</P> <P>(4) The availability of alternative sources for derivatively classifying the information in a uniform manner.</P> </SECTION> <SECTION> <SECTNO>§ 2.13</SECTNO> <SUBJECT>Derivative identification and markings [1.5(c) and 2.1(b)].</SUBJECT> <P>Information classified derivatively on the basis of source documents or classification guides shall bear all markings prescribed in § 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.</P> <P>(a) <E T="03">Classification Authority.</E> The authority for classification shall be shown as follows: </P> <EXTRACT> <FP SOURCE="FP-DASH">Derivatively Classified by</FP> <FP SOURCE="FP-DASH">Office</FP> <FP SOURCE="FP-DASH">Derived from</FP> <FP SOURCE="FP-DASH">Declassify on</FP> </EXTRACT> <FP>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 <E T="03">each</E> 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 <E T="03">source</E> document on its “DERIVED FROM” line rather than the term: “MULTIPLE CLASSIFIED <PRTPAGE P="125"/>SOURCES”. Preparers of such documentation shall ensure that the identification of the derivative classifier is indicated. Use of the term “MULTIPLE CLASSIFIED SOURCES,” is <E T="03">not</E> to be a substitute for the identity of the derivative classification authority.</FP> <P>(b) <E T="03">Downgrading and Declassification Instructions.</E> 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: </P> <EXTRACT> <FP SOURCE="FP-DASH">DOWNGRADE TO</FP> <FP>ON (<E T="03">date, description of event, or OADR</E>) or,</FP> <FP>DECLASSIFY ON (<E T="03">date, description of event, or OADR</E>)</FP> </EXTRACT> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Downgrading and Declassification</HD> <SECTION> <SECTNO>§ 2.14</SECTNO> <SUBJECT>Listing downgrading and declassification authorities 3.1(b)].</SUBJECT> <P>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 <E T="03">not</E> 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.</P> <CITA>[55 FR 1644, Jan. 17, 1990; 55 FR 13134, Apr. 9, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.15</SECTNO> <SUBJECT>Declassification policy [3.1].</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.16</SECTNO> <SUBJECT>Downgrading and declassification markings.</SUBJECT> <P>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 § 2.7(h).</P> </SECTION> <SECTION> <SECTNO>§ 2.17</SECTNO> <SUBJECT>Systematic review for declassification [3.3].</SUBJECT> <P>(a) <E T="03">Permanent Records.</E> 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.</P> <P>(b) <E T="03">Non-Permanent Classified Records.</E> 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.</P> <P>(c) <E T="03">Systematic Declassification Review Guidelines [3.3(a)].</E> 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.</P> <P>(d) <E T="03">Foreign Government Systematic Declassification Review Guidelines [3.3(a)].</E> As appropriate, guidelines for systematic declassification review of foreign <PRTPAGE P="126"/>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.</P> <P>(e) <E T="03">Special Procedures.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 2.18</SECTNO> <SUBJECT>Mandatory declassification review [3.4].</SUBJECT> <P>(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:</P> <P>(1) The request is made by a United States citizen or permanent resident alien, a Federal agency, or a state or local government;</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Processing—</E>(1) <E T="03">Initial Requests for Classified Records Originated by the Department.</E> 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:</P> <P>(i) The Departmental Office of Security shall acknowledge the receipt of the request in writing.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="127"/>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.</P> <P>(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.</P> <P>(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:</P> <P>(A) Advise the other agency as to whether it can notify the requester of the referral;</P> <P>(B) Review the classified information in coordination with other agencies that have a direct interest in the subject matter; and</P> <P>(C) Respond to the requester in accordance with the procedures in § 2.18(b)(1)(iv). If requested, Treasury's determination shall be communicated to the referring agency.</P> <P>(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.</P> <P>(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 § 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.</P> <P>(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.</P> <P>(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.</P> <P>(A) Photocopies per page up to 8<FR>1/2</FR> <E T="61">″</E> by 14<E T="61">″</E> 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.</P> <P>(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 <PRTPAGE P="128"/>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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2.19</SECTNO> <SUBJECT>Assistance to the Department of State [3.3(b)].</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.20</SECTNO> <SUBJECT>Freedom of Information/Privacy Act requests [3.4].</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Safeguarding</HD> <SECTION> <SECTNO>§ 2.21</SECTNO> <SUBJECT>General [4.1].</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.22</SECTNO> <SUBJECT>General restrictions on access [4.1].</SUBJECT> <P>(a) <E T="03">Determination of Need-To-Know.</E> 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.</P> <P>(b) <E T="03">Determination of Trustworthiness.</E> 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.</P> <P>(c) <E T="03">Classified Information Nondisclosure Agreement.</E> 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.</P> </SECTION> <SECTION> <PRTPAGE P="129"/> <SECTNO>§ 2.23</SECTNO> <SUBJECT>Access by historical researchers and former presidential appointees [4.3].</SUBJECT> <P>(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:</P> <P>(1) Are engaged in historical research projects, or</P> <P>(2) Previously have occupied policymaking positions to which they were appointed by the President.</P> <P>(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 § 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 <E T="03">only</E> 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.</P> <P>(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 § 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.</P> </SECTION> <SECTION> <SECTNO>§ 2.24</SECTNO> <SUBJECT>Dissemination [4.1(d)].</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.25</SECTNO> <SUBJECT>Standards for security equipment [4.1(b) and 5.1(b)].</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.26</SECTNO> <SUBJECT>Accountability procedures [4.1(b)].</SUBJECT> <P>(a) <E T="03">Top Secret Control Officers.</E> 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:<PRTPAGE P="130"/> </P> <P>(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.</P> <P>(2) Maintain current accountability records of Top Secret information received within their bureau or office.</P> <P>(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.</P> <P>(4) Ensure that prohibitions against reproduction of Top Secret information are strictly followed.</P> <P>(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.</P> <P>(6) Ensure that Top Secret documents are downgraded, declassified, retired or destroyed as required by regulations or other markings.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(12) Verify, prior to releasing Top Secret information, that the recipient has both a security clearance and is authorized access to such information.</P> <P>(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.</P> <P>(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.</P> <P>(15) Ensure upon receipt that a Standard Form 703 (Top Secret Cover Sheet) is affixed to such information.</P> <P>(16) Notify office and/or bureau employees annually in writing of the designated control point for all incoming and outgoing Top Secret information.</P> <P>(17) Be notified as to the transmission, per § 2.28(b), whenever Top Secret information is sent outside of a Treasury bureau or office within the Departmental Offices.</P> <P>(b) <E T="03">Top Secret Control Officer Listings.</E> 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.</P> <P>(c) <E T="03">Top Secret Document Record.</E> 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. <PRTPAGE P="131"/>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.</P> <P>(d) <E T="03">Classified Document Record of Transmittal.</E> 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.</P> <P>(1) <E T="03">Top Secret Information.</E> 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.</P> <P>(2) <E T="03">Secret Information.</E> 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.</P> <P>(3) <E T="03">Confidential and Limited Official Use Information.</E> Receipts for Confidential and Limited Official Use information shall not be required unless the originator indicates that receipting is necessary.</P> <CITA>[55 FR 1644, Jan. 17, 1990; 55 FR 13134, Apr. 9, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.27</SECTNO> <SUBJECT>Storage [4.1(b)].</SUBJECT> <P>Classified information shall be stored only in facilities or under conditions designed to prevent unauthorized persons from gaining access to it.</P> <P>(a) <E T="03">Minimum Requirements for Physical Barriers—</E>(1) <E T="03">Top Secret.</E> 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 § 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:</P> <P>(i) The area that houses the security container or vault shall be subject to the continuous protection of U.S. guard or duty personnel;</P> <P>(ii) U.S. Guard or duty personnel shall inspect the security container or vault at least once every two hours; or<PRTPAGE P="132"/> </P> <P>(iii) The security container or vault shall be controlled by an alarm system to which a force will respond in person within 15 minutes.</P> <FP>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.</FP> <P>(2) <E T="03">Secret and Confidential.</E> 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 § 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.</P> <P>(b) <E T="03">Combinations—</E>(1) <E T="03">Equipment in Service.</E> Combinations to dial-type, changeable, combination locks shall be changed only by persons having an appropriate security clearance, and shall be changed,</P> <P>(i) Whenever such equipment is placed in use;</P> <P>(ii) Whenever a person knowing the combination no longer requires access to it;</P> <P>(iii) Whenever a combination has been subjected to possible compromise;</P> <P>(iv) Whenever the equipment is taken out of service: or</P> <P>(v) At least once each year.</P> <FP>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.</FP> <P>(2) <E T="03">Equipment Out of Service.</E> 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 <PRTPAGE P="133"/>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 § 2.27.</P> <P>(3) <E T="03">Security Container Check Sheet.</E> 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 <E T="03">not</E> 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 <E T="03">not</E> 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.</P> <P>(4) <E T="03">Safe Combination Records</E>. 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 <PRTPAGE P="134"/>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.</P> <P>(c) <E T="03">Keys</E>. 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.</P> <P>(d) <E T="03">Classified Document Cover Sheets</E>. 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.</P> <P>(e) <E T="03">Activity Security Checklist</E>. 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.</P> </SECTION> <SECTION> <SECTNO>§ 2.28</SECTNO> <SUBJECT>Transmittal [4.1(b)].</SUBJECT> <P>(a) <E T="03">Preparation</E>. 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 <PRTPAGE P="135"/>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.</P> <P>(b) <E T="03">Receipting</E>. 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.</P> <P>(c) <E T="03">Transmittal of Top Secret</E>. 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 <E T="03">not</E> be sent via registered mail.</P> <P>(d) <E T="03">Transmittal of Secret.</E> The transmittal of Secret information shall be effected in the following manner:</P> <P>(1) <E T="03">The 50 States, District of Columbia and Puerto Rico.</E> 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.</P> <P>(2) <E T="03">Other Areas.</E> Secret information may be transmitted from, to, or within areas other than those specified in § 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 <PRTPAGE P="136"/>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.</P> <P>(e) <E T="03">Transmittal of Confidential and Limited Official Use Information.</E> 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.</P> <P>(f) <E T="03">Hand Carrying of Classified Information in Travel Status—</E>(1) <E T="03">General Provisions.</E> 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 § 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.</P> <P>(2) <E T="03">Specific Safeguards.</E> 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:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="137"/>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.</P> <CITA>[55 FR 1644, Jan. 17, 1990, as amended at 55 FR 50321, Dec. 6, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.29</SECTNO> <SUBJECT>Telecommunications and computer transmissions.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.30</SECTNO> <SUBJECT>Special access programs [1.2(a) and 4.2(a)].</SUBJECT> <P>Only the Secretary of the Treasury may create or continue a special access program if:</P> <P>(a) Normal management and safeguarding procedures do not limit access sufficiently; and</P> <P>(b) The number of persons with access is limited to the minimum necessary to meet the objective of providing extra protection for the information.</P> </SECTION> <SECTION> <SECTNO>§ 2.31</SECTNO> <SUBJECT>Reproduction controls [4.1(b)].</SUBJECT> <P>(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.</P> <P>(b) Unless restricted by the originating agency, Secret, Confidential and Limited Official Use documents may be reproduced to the extent required by operational needs.</P> <P>(c) Reproductions of classified documents shall be subject to the same accountability and controls as the original documents.</P> <P>(d) Paragraphs (a) and (b) of this section shall not restrict the reproduction of documents to facilitate review for possible declassification.</P> </SECTION> <SECTION> <SECTNO>§ 2.32</SECTNO> <SUBJECT>Loss or possible compromise [4.1(b)].</SUBJECT> <P>(a) <E T="03">Report of Loss or Possible Compromise.</E> 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.</P> <P>(b) <E T="03">Inquiry</E>. 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.</P> <P>(c) <E T="03">Content of Damage Assessments</E>. At a minimum, damage assessments shall be in writing and contain the following:</P> <P>(1) Identification of the source, date and circumstances of the compromise.</P> <P>(2) Classification and description of the specific information which has been lost.<PRTPAGE P="138"/> </P> <P>(3) An analysis and statement of the known or probable damage to the national security that has resulted or may result.</P> <P>(4) An assessment of the possible advantage to foreign powers resulting from the compromise.</P> <P>(5) An assessment of whether,</P> <P>(i) The classification of the information involved should be continued without change;</P> <P>(ii) The specific information, or parts thereof, shall be modified to minimize or nullify the effects of the reported compromise and the classification retained;</P> <P>(iii) Downgrading, declassification, or upgrading is warranted, and if so, confirmation of prompt notification to holders of any change, and</P> <P>(6) An assessment of whether countermeasures are appropriate and feasible to negate or minimize the effect of the compromise.</P> <P>(d) <E T="03">System for Control of Damage Assessments</E>. 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 § 2.32(a) and that records are maintained in a manner that facilitates their retrieval and use within the Department.</P> <P>(e) <E T="03">Cases Involving More Than One Agency</E>. (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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2.33</SECTNO> <SUBJECT>Responsibilities of holders [4.1(b)].</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.34</SECTNO> <SUBJECT>Inspections [4.1(b)].</SUBJECT> <P>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 <PRTPAGE P="139"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.35</SECTNO> <SUBJECT>Security violations.</SUBJECT> <P>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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 2.36</SECTNO> <SUBJECT>Disposition and destruction [4.1(b)].</SUBJECT> <P>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 <E T="03">must</E> 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 <FR>3/32</FR>″ by <FR>1/2</FR>″ with a <FR>1/64</FR>″ tolerance.</P> <P>(a) <E T="03">Diskettes or Floppy Disks.</E> 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 <FR>1/32</FR>″ by <FR>1/2</FR>″ with a <FR>1/64</FR>″ 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.</P> <P>(b) <E T="03">Hard Disks.</E> Hard disks, including removable hard disks, disk packs, drums or single disk platters that contain classified information must first <PRTPAGE P="140"/>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.</P> <P>(c) <E T="03">Approval of Use of Mulching and Cross-cut Shredding Equipment.</E> Prior to obtaining mulching or cross-cut shredding equipment, the Departmental Director of Security shall approve the use of such equipment.</P> <P>(d) <E T="03">Use of Burnbags.</E> 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.</P> <P>(e) <E T="03">Records of Destruction.</E> 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.</P> <P>(f) <E T="03">Destruction of non-record Classified Information.</E> 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.</P> <CITA>[55 FR 1644, Jan. 17, 1990; 55 FR 5118, Feb. 13, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.37</SECTNO> <SUBJECT>National Security Decision Directive 197.</SUBJECT> <P>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:</P> <P>(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;</P> <P>(b) Instances in which they feel they are being targeted for possible exploitation. Contacts with representatives of designated countries of concern identified in § 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Implementation and Review</HD> <SECTION> <SECTNO>§ 2.38</SECTNO> <SUBJECT>Departmental management.</SUBJECT> <P>(a) The Assistant Secretary (Management) shall:</P> <P>(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.</P> <P>(2) Review suggestions and complaints regarding the administration of this regulation.</P> <P>(b) Pursuant to Treasury Directive 71-08, “Delegation of Authority Concerning Physical Security Programs”, the Departmental Director of Security shall:</P> <P>(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.</P> <P>(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 <PRTPAGE P="141"/>reports, information and assistance as may be necessary, and</P> <P>(3) Serve as the principal advisor to the Assistant Secretary (Management) with respect to Treasury physical and information security programs.</P> </SECTION> <SECTION> <SECTNO>§ 2.39</SECTNO> <SUBJECT>Bureau administration.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.40</SECTNO> <SUBJECT>Emergency planning [4.1(b)].</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.41</SECTNO> <SUBJECT>Emergency authority [4.1(b)].</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 2.42</SECTNO> <SUBJECT>Security education [5.3(a)].</SUBJECT> <P>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.</P> <P>(a) <E T="03">Briefing of Employees.</E> 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 § 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.</P> <P>(b) [Reserved]</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—General Provisions</HD> <SECTION> <SECTNO>§ 2.43</SECTNO> <SUBJECT>Definitions [6.1].</SUBJECT> <P>(a) <E T="03">Authorized Person.</E> 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.</P> <P>(b) <E T="03">Compromise.</E> The loss of security enabling unauthorized access to classified information. Affected information or material is not automatically declassified.</P> <P>(c) <E T="03">Confidential Source.</E> 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.<PRTPAGE P="142"/> </P> <P>(d) <E T="03">Declassification.</E> 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.</P> <P>(e) <E T="03">Derivative Classification.</E> A determination that information is, in substance, the same as informaiton that is currently classified and a designation of the level of classification.</P> <P>(f) <E T="03">Designated Countries of Concern.</E> 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.</P> <P>(g) <E T="03">Document.</E> 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.</P> <P>(h) <E T="03">Foreign Government Information.</E> (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</P> <P>(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.</P> <P>(i) <E T="03">Information.</E> 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.</P> <P>(j) <E T="03">Information Security.</E> 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.</P> <P>(k) <E T="03">Intelligence Activity.</E> An activity that an agency within the Intelligence Community is authorized to conduct pursuant to Executive Order 12333.</P> <P>(l) <E T="03">Intelligence Sources and Methods.</E> 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.</P> <P>(m) <E T="03">Limited Official Use.</E> 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.</P> <P>(n) <E T="03">Multiple Classified Sources.</E> The term used to indicate that a document is derivatively classified when it contains classified information derived from other than one source.</P> <P>(o) <E T="03">National Security.</E> The national defense or foreign relations of the United States.</P> <P>(p) <E T="03">National Security Information.</E> Information that has been determined <PRTPAGE P="143"/>pursuant to the Order or any predecessor Executive Order to require protection against unauthorized disclosure and that is so designated.</P> <P>(q) <E T="03">Need-to-Know.</E> 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.</P> <P>(r) <E T="03">Officially Limited Information.</E> 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.</P> <P>(s) <E T="03">Original Classification.</E> 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.</P> <P>(t) <E T="03">Original Classification Authority.</E> 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.</P> <P>(u) <E T="03">Originating Agency.</E> The agency responsible for the initial determination that particular information is classified.</P> <P>(v) <E T="03">Portion.</E> A segment of a document for purposes of expressing a unified theme; ordinarily a paragraph.</P> <P>(w) <E T="03">Sensitive Compartmented Information.</E> 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.</P> <P>(x) <E T="03">Special Access Program.</E> 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”.</P> <P>(y) <E T="03">Special Activity.</E> 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.</P> <P>(z) <E T="03">Unauthorized Disclosure.</E> 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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 3</EAR> <HD SOURCE="HED">PART 3—CLAIMS REGULATIONS AND INDEMNIFICATION OF DEPARTMENT OF TREASURY EMPLOYEES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Claims Under the Federal Tort Claims Act</HD> <SECHD>Sec.</SECHD> <SECTNO>3.1</SECTNO> <SUBJECT>Scope of regulations.</SUBJECT> <SECTNO>3.2</SECTNO> <SUBJECT>Filing of claims.</SUBJECT> <SECTNO>3.3</SECTNO> <SUBJECT>Legal review.</SUBJECT> <SECTNO>3.4</SECTNO> <SUBJECT>Approval of claims not in excess of $25,000.</SUBJECT> <SECTNO>3.5</SECTNO> <SUBJECT>Limitations on authority to approve claims.</SUBJECT> <SECTNO>3.6</SECTNO> <SUBJECT>Final denial of a claim.</SUBJECT> <SECTNO>3.7</SECTNO> <SUBJECT>Action on approved claims.</SUBJECT> <SECTNO>3.8</SECTNO> <SUBJECT>Statute of limitations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Claims Under the Small Claims Act</HD> <SECTNO>3.20</SECTNO> <SUBJECT>General.<PRTPAGE P="144"/> </SUBJECT> <SECTNO>3.21</SECTNO> <SUBJECT>Action by claimant.</SUBJECT> <SECTNO>3.22</SECTNO> <SUBJECT>Legal review.</SUBJECT> <SECTNO>3.23</SECTNO> <SUBJECT>Approval of claims.</SUBJECT> <SECTNO>3.24</SECTNO> <SUBJECT>Statute of limitations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Indemnification of Department of Treasury Employees</HD> <SECTNO>3.30</SECTNO> <SUBJECT>Policy.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>28 U.S.C. 2672; 28 CFR part 14; 5 U.S.C. 301.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>35 FR 6429, Apr. 22, 1970, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Claims Under the Federal Tort Claims Act</HD> <SECTION> <SECTNO>§ 3.1</SECTNO> <SUBJECT>Scope of regulations.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3.2</SECTNO> <SUBJECT>Filing of claims.</SUBJECT> <P>(a) <E T="03">When presented.</E> 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.</P> <P>(b) <E T="03">Place of filing claim.</E> 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.</P> <P>(c) <E T="03">Contents of claim.</E> The evidence and information to be submitted with the claim shall conform to the requirements of 28 CFR 14.4.</P> </SECTION> <SECTION> <SECTNO>§ 3.3</SECTNO> <SUBJECT>Legal review.</SUBJECT> <P>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.</P> <CITA>[35 FR 6429, Apr. 22, 1970, as amended at 48 FR 16253, Apr. 15, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.4</SECTNO> <SUBJECT>Approval of claims not in excess of $25,000.</SUBJECT> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 3.5</SECTNO> <SUBJECT>Limitations on authority to approve claims.</SUBJECT> <P>(a) All proposed awards, compromises or settlements in excess of $25,000 require the prior written approval of the Attorney General.</P> <P>(b) All claims which fall within the provisions of 28 CFR 14.6(b) require referral to and consultation with the Department of Justice.</P> <P>(c) Any claim which falls within paragraph (a) or (b) of this section <PRTPAGE P="145"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.6</SECTNO> <SUBJECT>Final denial of a claim.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.7</SECTNO> <SUBJECT>Action on approved claims.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[35 FR 6429, Apr. 22, 1970, as amended at 39 FR 19470, June 3, 1974]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.8</SECTNO> <SUBJECT>Statute of limitations.</SUBJECT> <P>Claims under this subpart must be presented in writing to the Department within 2 years after the claim accrued.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Claims Under the Small Claims Act</HD> <SECTION> <SECTNO>§ 3.20</SECTNO> <SUBJECT>General.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.21</SECTNO> <SUBJECT>Action by claimant.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="146"/> <SECTNO>§ 3.22</SECTNO> <SUBJECT>Legal review.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.23</SECTNO> <SUBJECT>Approval of claims.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 3.24</SECTNO> <SUBJECT>Statute of limitations.</SUBJECT> <P>No claim will be considered under this subpart unless filed within 1 year from the date of the accrual of said claim.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Indemnification of Department of Treasury Employees</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 42938, Aug. 30, 1991, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3.30</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 4</EAR> <HD SOURCE="HED">PART 4—EMPLOYEES’ PERSONAL PROPERTY CLAIMS</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 3721(j).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source: </HD> <P>62 FR 18518, Apr. 16, 1997, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 4.1</SECTNO> <SUBJECT>Procedures.</SUBJECT> <P>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 <PRTPAGE P="147"/>32-13, “Policies and Procedures For Employees’ Claim for Loss or Damage to Personal Property Incident to Service.”</P> </SECTION> </PART> <PART> <EAR>Pt. 5</EAR> <HD SOURCE="HED">PART 5—CLAIMS COLLECTION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Administrative Collection, Compromise, Termination and Referral of Claims</HD> <SECHD>Sec.</SECHD> <SECTNO>5.1</SECTNO> <SUBJECT>Authority.</SUBJECT> <SECTNO>5.2</SECTNO> <SUBJECT>Incorporation by reference; scope.</SUBJECT> <SECTNO>5.3</SECTNO> <SUBJECT>Designation.</SUBJECT> <SECTNO>5.4</SECTNO> <SUBJECT>Application to other statutes.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Salary Offset</HD> <SECTNO>5.5</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>5.6</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>5.7</SECTNO> <SUBJECT>Designation.</SUBJECT> <SECTNO>5.8</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>5.9</SECTNO> <SUBJECT>Applicability of regulations.</SUBJECT> <SECTNO>5.10</SECTNO> <SUBJECT>Waiver requests and claims to the General Accounting Office.</SUBJECT> <SECTNO>5.11</SECTNO> <SUBJECT>Notice requirements before offset.</SUBJECT> <SECTNO>5.12</SECTNO> <SUBJECT>Hearing.</SUBJECT> <SECTNO>5.13</SECTNO> <SUBJECT>Certification.</SUBJECT> <SECTNO>5.14</SECTNO> <SUBJECT>Voluntary repayment agreements as alternative to salary offset.</SUBJECT> <SECTNO>5.15</SECTNO> <SUBJECT>Special review.</SUBJECT> <SECTNO>5.16</SECTNO> <SUBJECT>Notice of salary offset.</SUBJECT> <SECTNO>5.17</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <SECTNO>5.18</SECTNO> <SUBJECT>Coordinating salary offset with other agencies.</SUBJECT> <SECTNO>5.19</SECTNO> <SUBJECT>Interest, penalties and administrative costs.</SUBJECT> <SECTNO>5.20</SECTNO> <SUBJECT>Refunds.</SUBJECT> <SECTNO>5.21</SECTNO> <SUBJECT>Request for the services of a hearing official from the creditor agency.</SUBJECT> <SECTNO>5.22</SECTNO> <SUBJECT>Non-waiver of rights by payments.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Tax Refund Offset</HD> <SECTNO>5.23</SECTNO> <SUBJECT>Applicability and scope.</SUBJECT> <SECTNO>5.24</SECTNO> <SUBJECT>Designation.</SUBJECT> <SECTNO>5.25</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>5.26</SECTNO> <SUBJECT>Preconditions for Department participation.</SUBJECT> <SECTNO>5.27</SECTNO> <SUBJECT>Procedures.</SUBJECT> <SECTNO>5.28</SECTNO> <SUBJECT>Referral of debts for offset.</SUBJECT> <SECTNO>5.29</SECTNO> <SUBJECT>Notice requirements before offset.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Administrative Offset</HD> <SECTNO>5.30</SECTNO> <SUBJECT>Scope of regulations.</SUBJECT> <SECTNO>5.31</SECTNO> <SUBJECT>Designation.</SUBJECT> <SECTNO>5.32</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>5.33</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>5.34</SECTNO> <SUBJECT>Notification procedures.</SUBJECT> <SECTNO>5.35</SECTNO> <SUBJECT>Agency review.</SUBJECT> <SECTNO>5.36</SECTNO> <SUBJECT>Written agreement for repayment.</SUBJECT> <SECTNO>5.37</SECTNO> <SUBJECT>Administrative offset.</SUBJECT> <SECTNO>5.38</SECTNO> <SUBJECT>Jeopardy procedure. </SUBJECT> </SUBPART> </CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Administrative Collection, Compromise, Termination and Referral of Claims</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 3711.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>32 FR 452, Jan. 17, 1967, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5.1</SECTNO> <SUBJECT>Authority.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 5.2</SECTNO> <SUBJECT>Incorporation by reference; scope.</SUBJECT> <P>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 § 101.3 of the Joint Regulations, unless returned by the Justice Department to the Treasury Department for handling.</P> </SECTION> <SECTION> <SECTNO>§ 5.3</SECTNO> <SUBJECT>Designation.</SUBJECT> <P>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: <E T="03">Provided, however,</E> 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 <PRTPAGE P="148"/>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.</P> <APPRO>(Sec. 3, 80 Stat. 309; 31 U.S.C. 951-953, 4 CFR Chap. II; 31 U.S.C. 3711, 96 Stat. 971 (1982))</APPRO> <CITA>[34 FR 5159, Mar. 13, 1969, as amended at 49 FR 45579, Nov. 19, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 5.4</SECTNO> <SUBJECT>Application to other statutes.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Salary Offset</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 5514; 5 CFR part 550, subpart K.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 39514, Oct. 22, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5.5</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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 <E T="03">Code of Federal Regulations</E>.</P> </SECTION> <SECTION> <SECTNO>§ 5.6</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>(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.</P> <P>(b) These regulations apply to collections by the Secretary of the Treasury from:</P> <P>(1) Federal employees who owe debts to the Department; and</P> <P>(2) Employees of the Department who owe debts to other agencies.</P> <P>(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 <E T="03">et seq.</E>); the Social Security Act (42 U.S.C. 301 <E T="03">et seq.</E>); 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 T="03">e.g.,</E> travel advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 4108).</P> <P>(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.</P> <P>(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 <E T="03">et seq.,</E> 4 CFR parts 101-105, 38 CFR 1.1900 <E T="03">et seq.</E>).</P> </SECTION> <SECTION> <SECTNO>§ 5.7</SECTNO> <SUBJECT>Designation.</SUBJECT> <P>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 <PRTPAGE P="149"/>which the Secretary is responsible under the foregoing act and Office of Personnel Management Regulations: <E T="03">Provided, however,</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 5.8</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>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:</P> <P>(a) <E T="03">Agency</E> means:</P> <P>(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;</P> <P>(2) A military department as defined by section 102 of Title 5, United States Code;</P> <P>(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;</P> <P>(4) An agency of the legislative branch, including the U.S. Senate and the U.S. House of Representatives; and</P> <P>(5) Other independent establishments that are entities of the Federal Government.</P> <P>(b) <E T="03">Bureau Salary Offset Coordination Officer</E> 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.</P> <P>(c) <E T="03">Certification</E> means a written debt claim form received from a creditor agency which requests the paying agency to offset the salary of an employee.</P> <P>(d) <E T="03">Creditor agency</E> means an agency of the Federal Government to which the debt is owed.</P> <P>(e) <E T="03">Debt</E> or <E T="03">claim</E> 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.</P> <P>(f) <E T="03">Department</E> or <E T="03">Treasury Department</E> means the Departmental Offices of the Department of the Treasury and each bureau of the Department.</P> <P>(g) <E T="03">Disposable pay</E> 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:</P> <P>(1) Federal employment taxes;</P> <P>(2) Amounts deducted for the U.S. Soldiers’ and Airmen's Home;</P> <P>(3) Fines and forfeiture ordered by a court martial or by a commanding officer;</P> <P>(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;</P> <P>(5) Health insurance premiums;</P> <P>(6) Normal retirement contributions (<E T="03">e.g.,</E> Civil Service Retirement deductions, Survivor Benefit Plan or Retired Serviceman's Family Protection Plan); and</P> <P>(7) Normal life insurance premiums, exclusive of optional life insurance premiums (<E T="03">e.g.,</E> Serviceman's Group Life Insurance and “basic” Federal Employee's Group Life Insurance premiums).</P> <P>(h) <E T="03">Employee</E> 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.<PRTPAGE P="150"/> </P> <P>(i) Federal Claims Collection Standards, “FCCS,” jointly published by the Department of Justice and the General Accounting Office at 4 CFR 101.1 <E T="03">et seq.</E> </P> <P>(j) <E T="03">Hearing official</E> 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.</P> <P>(k) <E T="03">Paying agency</E> 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.</P> <P>(l) <E T="03">Notice of intent to offset</E> or <E T="03">notice of intent</E> 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.</P> <P>(m) <E T="03">Notice of salary offset</E> 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.</P> <P>(n) <E T="03">Payroll office</E> 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.</P> <P>(o) <E T="03">Salary offset</E> 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> <P>(p) <E T="03">Secretary</E> means the Secretary of the Treasury or his or her designee.</P> <P>(q) <E T="03">Waiver</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 5.9</SECTNO> <SUBJECT>Applicability of regulations.</SUBJECT> <P>These regulations are to be followed in instances where:</P> <P>(a) The Department is owed a debt by an individual currently employed by another agency;</P> <P>(b) Where the Department is owed a debt by an individual who is a current employee of the Department; or</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5.10</SECTNO> <SUBJECT>Waiver requests and claims to the General Accounting Office.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 5.11</SECTNO> <SUBJECT>Notice requirements before offset.</SUBJECT> <P>(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:</P> <P>(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;<PRTPAGE P="151"/> </P> <P>(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;</P> <P>(3) The amount, frequency, approximate beginning date, and duration of the intended deductions;</P> <P>(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 <E T="03">et seq.;</E> </P> <P>(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;</P> <P>(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 (<E T="03">i.e.,</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 § 5.12;</P> <P>(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));</P> <P>(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;</P> <P>(9) The method and time period for requesting a hearing;</P> <P>(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;</P> <P>(11) The name and address of the office to which the petition should be sent;</P> <P>(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;</P> <P>(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;</P> <P>(14) That any knowingly false or frivolous statements, representations, or evidence may subject the employee to:</P> <P>(i) Disciplinary procedures appropriate under Chapter 75 of Title 5, United States Code, part 752 of title 5, <E T="03">Code of Federal Regulations</E>, or any other applicable statute or regulations;</P> <P>(ii) Penalties under the False Claims Act, sections 3729-3731 of Title 31, United States Code or any other applicable statutory authority; and</P> <P>(iii) Criminal penalties under sections 286, 287, 1001, and 1002 of Title 18, United States Code or any other applicable statutory authority;</P> <P>(15) Any other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made;</P> <P>(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</P> <P>(17) Proceedings with respect to such debt are governed by section 5 of the Debt Collection Act of 1982 (5 U.S.C. 5514).</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="152"/> <SECTNO>§ 5.12</SECTNO> <SUBJECT>Hearing.</SUBJECT> <P>(a) <E T="03">Request for hearing.</E> 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. <E T="03">See</E> § 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.</P> <P>(b) <E T="03">Failure to timely submit.</E> 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).</P> <P>(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:</P> <P>(i) Fails to file a request for a hearing unless such failure is excused; or</P> <P>(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).</P> <P>(c) <E T="03">Representation at the hearing.</E> 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.</P> <P>(d) <E T="03">Review of departmental records related to the debt.</E> (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.</P> <P>(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.</P> <P>(3) If personal inspection is impractical, arrangements shall be made to send copies of such records to the employee.</P> <P>(e) <E T="03">Hearing official.</E> 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.</P> <P>(f) <E T="03">Obtaining the services of a hearing official when the Department is the creditor agency.</E> (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, <E T="03">Code of Federal Regulations</E> or as otherwise designated by the agency, and request a hearing official.</P> <P>(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, <E T="03">Code of Federal Regulations</E> or otherwise designated by that agency, to request a hearing official.</P> <P>(g) <E T="03">Procedure.</E> (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.<PRTPAGE P="153"/> </P> <P>(2) <E T="03">Oral hearing.</E> 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 T="03">e.g.,</E> 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:</P> <P>(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;</P> <P>(ii) Informal meetings with an interview of the employee; or</P> <P>(iii) Formal written submissions, with an opportunity for oral presentation.</P> <P>(3) <E T="03">Paper hearing.</E> 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).</P> <P>(4) <E T="03">Record.</E> The hearing official must maintain a summary record of any hearing provided by this subpart. <E T="03">See</E> 4 CFR 102.3. Witnesses who testify in oral hearings will do so under oath or affirmation.</P> <P>(h) <E T="03">Date of decision.</E> 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.</P> <P>(i) <E T="03">Content of decision.</E> The written decision shall include:</P> <P>(1) A statement of the facts presented to support the origin, nature, and amount of the debt;</P> <P>(2) The hearing official's findings, analysis and conclusions; and</P> <P>(3) The terms of any repayment schedules, if applicable.</P> <P>(j) <E T="03">Failure to appear.</E> In the absence of good cause shown (<E T="03">e.g.</E>, 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.</P> </SECTION> <SECTION> <SECTNO>§ 5.13</SECTNO> <SUBJECT>Certification.</SUBJECT> <P>(a) The bureau salary offset coordination officer shall provide a certification to the paying agency in all cases where:</P> <P>(1) The hearing official determines that a debt exists;</P> <P>(2) The employee admits the existence and amount of the debt by failing to request a hearing; or</P> <P>(3) The employee admits the existence of the debt by failing to appear at a hearing.</P> <P>(b) The certification must be in writing and must state:</P> <P>(1) The employee owes the debt;</P> <P>(2) The amount and basis of the debt;</P> <P>(3) The date the Government's right to collect the debt first accrued;</P> <P>(4) The Department's regulations have been approved by OPM pursuant to 5 CFR part 550, subpart K;</P> <P>(5) The amount and date of the lump sum payment;</P> <P>(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</P> <P>(7) The dates the action(s) was taken and that it was taken pursuant to 5 U.S.C. 5514.</P> </SECTION> <SECTION> <PRTPAGE P="154"/> <SECTNO>§ 5.14</SECTNO> <SUBJECT>Voluntary repayment agreements as alternative to salary offset.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5.15</SECTNO> <SUBJECT>Special review.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) Income from all sources;</P> <P>(2) Assets;</P> <P>(3) Liabilities;</P> <P>(4) Number of dependents;</P> <P>(5) Expenses for food, housing, clothing and transportation;</P> <P>(6) Medical expenses; and</P> <P>(7) Exceptional expenses, if any.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5.16</SECTNO> <SUBJECT>Notice of salary offset.</SUBJECT> <P>(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:</P> <P>(1) Contain a copy of the certification received from the creditor agency; and</P> <P>(2) Advise the employee that salary offset will be initiated at the next officially established pay interval.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5.17</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <P>(a) The Secretary shall coordinate salary deductions under this subpart.</P> <P>(b) The appropriate bureau payroll office shall determine the amount of an employee's disposable pay and will implement the salary offset.</P> <P>(c) Deductions shall begin within three official pay periods following receipt by the payroll office of certification.<PRTPAGE P="155"/> </P> <P>(d) <E T="03">Types of collection</E>—(1) <E T="03">Lump-sum payment.</E> 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.</P> <P>(2) <E T="03">Installment deductions.</E> 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.</P> <P>(3) <E T="03">Lump-sum deductions from final check.</E> 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.</P> <P>(4) <E T="03">Lump-sum deductions from other sources.</E> 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.</P> <P>(e) <E T="03">Multiple debts.</E> 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.</P> <P>(f) <E T="03">Precedence of debts owed to Treasury.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 5.18</SECTNO> <SUBJECT>Coordinating salary offset with other agencies.</SUBJECT> <P>(a) <E T="03">Responsibility of the Department as the creditor agency.</E> (1) The Secretary shall coordinate debt collections and shall, as appropriate:</P> <P>(i) Arrange for a hearing upon proper petition by a Federal employee; and</P> <P>(ii) Prescribe, upon consultation with the General Counsel, such practices and procedures as may be necessary to carry out the intent of this regulation.</P> <P>(2) The head of each bureau shall designate a salary offset coordination officer who will be responsible for:</P> <P>(i) Ensuring that each notice of intent to offset is consistent with the requirements of § 5.11;</P> <P>(ii) Ensuring that each certification of debt sent to a paying agency is consistent with the requirements of § 5.13;</P> <P>(iii) Obtaining hearing officials from other agencies pursuant to § 5.12(f); and</P> <P>(iv) Ensuring that hearings are properly scheduled.</P> <P>(3) <E T="03">Requesting recovery from current paying agency.</E> Upon completion of the procedures established in these regulations and pursuant to 5 U.S.C. 5514, the Department must:</P> <P>(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;</P> <P>(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);<PRTPAGE P="156"/> </P> <P>(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;</P> <P>(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 § 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.</P> <P>(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 <E T="03">et seq</E>.) or other similar funds, be administratively offset to collect the debt (<E T="03">See</E> 31 U.S.C. 3716 and the FCCS).</P> <P>(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.</P> <P>(b) <E T="03">Responsibility of the Department as the paying agency</E>—(1) <E T="03">Complete claim.</E> 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.</P> <P>(2) <E T="03">Incomplete claim.</E> 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.</P> <P>(3) <E T="03">Review.</E> 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.</P> <P>(4) <E T="03">Employees who transfer from one paying agency to another.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 5.19</SECTNO> <SUBJECT>Interest, penalties and administrative costs.</SUBJECT> <P>(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 <E T="03">et seq</E>.</P> </SECTION> <SECTION> <SECTNO>§ 5.20</SECTNO> <SUBJECT>Refunds.</SUBJECT> <P>(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:</P> <P>(1) The debt is waived or otherwise found not to be owing the United States; or</P> <P>(2) An administrative or judicial order directs the Department to make a refund.</P> <P>(b) Unless required or permitted by law or contract, refunds under this subsection shall not bear interest.</P> </SECTION> <SECTION> <PRTPAGE P="157"/> <SECTNO>§ 5.21</SECTNO> <SUBJECT>Request for the services of a hearing official from the creditor agency.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The bureau salary offset coordination officer will appoint qualified personnel to serve as hearing officials.</P> <P>(d) Services rendered under this section will be provided on a fully reimbursable basis pursuant to the Economy Act of 1932, <E T="03">as amended,</E> 31 U.S.C. 1535.</P> </SECTION> <SECTION> <SECTNO>§ 5.22</SECTNO> <SUBJECT>Non-waiver of rights by payments.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Tax Refund Offset</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 3720A; 26 CFR 301.6402-6T.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 50, Jan. 2, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5.23</SECTNO> <SUBJECT>Applicability and scope.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(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;</P> <P>(2) Cannot be currently collected pursuant to the salary offset provisions of 5 U.S.C. 5514;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(6) With respect to which the Department has notified or has made a reasonable attempt to notify the taxpayer that:</P> <P>(i) The debt is past due, and</P> <P>(ii) Unless repaid within 60 days thereafter, the debt will be referred to the IRS for offset against any overpayment of tax; and</P> <P>(7) Is at least $25.</P> </SECTION> <SECTION> <SECTNO>§ 5.24</SECTNO> <SUBJECT>Designation.</SUBJECT> <P>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: <E T="03">Provided, however,</E> 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.</P> </SECTION> <SECTION> <PRTPAGE P="158"/> <SECTNO>§ 5.25</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this subpart:</P> <P> <E T="03">Commissioner</E> means the Commissioner of the Internal Revenue Service.</P> <P> <E T="03">Debt</E> 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.</P> <P> <E T="03">Memorandum of Understanding</E> (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.</P> </SECTION> <SECTION> <SECTNO>§ 5.26</SECTNO> <SUBJECT>Preconditions for Department participation.</SUBJECT> <P>(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:</P> <P>(1) The size and age of the bureau's inventory of delinquent debts;</P> <P>(2) The prior collection efforts that the inventory reflects; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5.27</SECTNO> <SUBJECT>Procedures.</SUBJECT> <P>(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.</P> <P>(b) The bureaus shall ensure that:</P> <P>(1) Only those past-due legally enforceable debts described in § 5.23(b) are forwarded to the IRS for offset; and</P> <P>(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.</P> <P>(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:</P> <P>(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;</P> <P>(2) The dollar amount of such past-due and legally enforceable debt;</P> <P>(3) The date on which the original debt became past-due;</P> <P>(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;</P> <P>(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 § 5.23(b).</P> <P>(d) A bureau shall promptly notify the IRS to correct Treasury data submitted when the bureau:</P> <P>(1) Determines that an error has been made with respect to a debt that has been referred;</P> <P>(2) Receives or credits a payment on such debt; or</P> <P>(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.<PRTPAGE P="159"/> </P> <P>(e) When advising debtors of an intent to refer a debt to the IRS for offset, the bureau shall also advise the debtors of all remedial actions available to defer or prevent the offset from taking place.</P> </SECTION> <SECTION> <SECTNO>§ 5.28</SECTNO> <SUBJECT>Referral of debts for offset.</SUBJECT> <P>(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:</P> <P>(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</P> <P>(2) That information will be provided for each such debt as is required by the terms of the MOU.</P> <P>(b) Such referrals shall be made by submitting to the Service a magnetic tape pursuant to § 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.</P> </SECTION> <SECTION> <SECTNO>§ 5.29</SECTNO> <SUBJECT>Notice requirements before offset.</SUBJECT> <P>(a) The bureau must notify, or make a reasonable attempt to notify, the individual that:</P> <P>(1) The debt is past due, and</P> <P>(2) Unless repaid within 60 days thereafter, the debt will be referred to the Service for offset against any refund of overpayment of tax;</P> <P>(b) The bureau shall provide a toll free telephone number for use in obtaining information from the bureau concerning the offset.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Administrative Offset</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 3701; 31 U.S.C. 3711; 31 U.S.C. 3716.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 52, Jan. 2, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 5.30</SECTNO> <SUBJECT>Scope of regulations.</SUBJECT> <P>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.</P> <CITA>[52 FR 52, Jan. 2, 1987, as amended at 53 FR 16703, May 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 5.31</SECTNO> <SUBJECT>Designation.</SUBJECT> <P>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: <E T="03">Provided, however,</E> That no compromise of a <PRTPAGE P="160"/>claim shall be effected or collection action terminated except upon recommendation of the General Counsel 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.</P> </SECTION> <SECTION> <SECTNO>§ 5.32</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Administrative offset,</E> 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.</P> <P>(b) <E T="03">Person</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 5.33</SECTNO> <SUBJECT>General.</SUBJECT> <P>(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:</P> <P>(1) The debt is certain in amount; and</P> <P>(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;</P> <P>(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.</P> <P>(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:</P> <P>(1) The debt exists; and</P> <P>(2) The person has been afforded the necessary due process rights.</P> <P>(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.</P> <P>(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.</P> <P>(f) These regulations do not apply to:</P> <P>(1) A case in which administrative offset of the type of debt involved is explicitly provided for or prohibited by another statute; or</P> <P>(2) Debts owed by other agencies of the United States or by any State or local government.</P> </SECTION> <SECTION> <SECTNO>§ 5.34</SECTNO> <SUBJECT>Notification procedures.</SUBJECT> <P>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:</P> <P>(a) A description of the nature and amount of the debt and the intention of the Department to collect the debt through administrative offset;</P> <P>(b) An opportunity to inspect and copy the records of the Department with respect to the debt;</P> <P>(c) An opportunity for review within the Department of the determination of the Department with respect to the debt; and</P> <P>(d) An opportunity to enter into a written agreement for the repayment of the amount of the debt.</P> </SECTION> <SECTION> <SECTNO>§ 5.35</SECTNO> <SUBJECT>Agency review.</SUBJECT> <P>(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 § 5.34.<PRTPAGE P="161"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5.36</SECTNO> <SUBJECT>Written agreement for repayment.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 5.37</SECTNO> <SUBJECT>Administrative offset.</SUBJECT> <P>(a) If the debtor does not exercise the right to request a review within the time specified in § 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.</P> <P>(b) <E T="03">Requests for offset to other Federal agencies.</E> 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:</P> <P>(1) That the debtor owes the debt;</P> <P>(2) The amount and basis of the debt; and</P> <P>(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.</P> <P>(c) <E T="03">Requests for offset from other Federal agencies.</E> 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:</P> <P>(1) Receipt of written certification from the creditor agency:</P> <P>(i) That the debtor owes the debt;</P> <P>(ii) The amount and basis of the debt;</P> <P>(iii) That the agency has prescribed regulations for the exercise of administrative offset; and</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 5.38</SECTNO> <SUBJECT>Jeopardy procedure.</SUBJECT> <P>The Department may effect an administrative offset against a payment to be made to the debtor prior to the <PRTPAGE P="162"/>completion of the procedures required by §§ 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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 6</EAR> <HD SOURCE="HED">PART 6—APPLICATIONS FOR AWARDS UNDER THE EQUAL ACCESS TO JUSTICE ACT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>6.1</SECTNO> <SUBJECT>Purpose of these rules.</SUBJECT> <SECTNO>6.2</SECTNO> <SUBJECT>When the Act applies.</SUBJECT> <SECTNO>6.3</SECTNO> <SUBJECT>Proceedings covered.</SUBJECT> <SECTNO>6.4</SECTNO> <SUBJECT>Eligibility of applicants.</SUBJECT> <SECTNO>6.5</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <SECTNO>6.6</SECTNO> <SUBJECT>Allowable fees and other expenses.</SUBJECT> <SECTNO>6.7</SECTNO> <SUBJECT>Delegations of authority.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Information Required From Applicants</HD> <SECTNO>6.8</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <SECTNO>6.9</SECTNO> <SUBJECT>Net worth exhibit.</SUBJECT> <SECTNO>6.10</SECTNO> <SUBJECT>Documentation of fees and expenses.</SUBJECT> <SECTNO>6.11</SECTNO> <SUBJECT>When an application may be filed.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedures for Considering Applications</HD> <SECTNO>6.12</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <SECTNO>6.13</SECTNO> <SUBJECT>Answer to application.</SUBJECT> <SECTNO>6.14</SECTNO> <SUBJECT>Decision.</SUBJECT> <SECTNO>6.15</SECTNO> <SUBJECT>Agency review.</SUBJECT> <SECTNO>6.16</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <SECTNO>6.17</SECTNO> <SUBJECT>Payment of award.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 504(c)(1)).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>47 FR 20765, May 14, 1982, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 6.1</SECTNO> <SUBJECT>Purpose of these rules.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6.2</SECTNO> <SUBJECT>When the Act applies.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6.3</SECTNO> <SUBJECT>Proceedings covered.</SUBJECT> <P>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:</P> <P>(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).</P> <P>(b) Comptroller of the Currency:</P> <FP>All proceedings conducted under 12 CFR part 19, subpart A.</FP> </SECTION> <SECTION> <SECTNO>§ 6.4</SECTNO> <SUBJECT>Eligibility of applicants.</SUBJECT> <P>(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.</P> <P>(b) The types of eligible applicants are as follows:</P> <P>(1) An individual with a net worth of not more than $1 million;<PRTPAGE P="163"/> </P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 6.5</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <P>(a) A prevailing applicant may receive an award for fees and expenses incurred in connection with the <E T="03">final</E> 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 6.6</SECTNO> <SUBJECT>Allowable fees and other expenses.</SUBJECT> <P>(a) The following fees and other expenses are allowable under the Act:</P> <P>(1) Reasonable expenses of expert witnesses;</P> <P>(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;</P> <P>(3) Reasonable attorney or agent fees.</P> <P>(b) The amount of fees awarded will be based upon the prevailing market rates for the kind and quality of services furnished, except that</P> <P>(1) Compensation for an expert witness will not exceed the highest rate paid by the agency for expert witnesses; and</P> <P>(2) Attorney or agent fees will not be in excess of $75 per hour.</P> </SECTION> <SECTION> <SECTNO>§ 6.7</SECTNO> <SUBJECT>Delegations of authority.</SUBJECT> <P>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 § 6.3 under the respective bureau or office. The Secretary of the Treasury may by order delegate authority to <PRTPAGE P="164"/>take final action on matters pertaining to the Equal Access to Justice Act in particular cases to other subordinate officials.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Information Required From Applicants</HD> <SECTION> <SECTNO>§ 6.8</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(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)).</P> <P>(c) The application shall itemize the amount of fees and expenses for which an award is sought.</P> <P>(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.</P> <P>(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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 1512-0444, for applications filed with the Bureau of Alcohol, Tobacco and Firearms)</APPRO> <APPRO>(5 U.S.C. 552(a) (80 Stat. 383, as amended))</APPRO> <CITA>[47 FR 20765, May 14, 1982, as amended at 49 FR 14944, Apr. 16, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.9</SECTNO> <SUBJECT>Net worth exhibit.</SUBJECT> <P>(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 § 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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 6.10</SECTNO> <SUBJECT>Documentation of fees and expenses.</SUBJECT> <P>(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.</P> <P>(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.<PRTPAGE P="165"/> </P> <P>(1) The affidavit shall state the services performed. In order to establish 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.</P> <P>(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.</P> <P>(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.</P> <P>(d) The adjudicative officer may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.</P> </SECTION> <SECTION> <SECTNO>§ 6.11</SECTNO> <SUBJECT>When an application may be filed.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedures for Considering Applications</HD> <SECTION> <SECTNO>§ 6.12</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6.13</SECTNO> <SUBJECT>Answer to application.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 6.14</SECTNO> <SUBJECT>Decision.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 6.15</SECTNO> <SUBJECT>Agency review.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <PRTPAGE P="166"/> <SECTNO>§ 6.16</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).</P> </SECTION> <SECTION> <SECTNO>§ 6.17</SECTNO> <SUBJECT>Payment of award.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 7</EAR> <HD SOURCE="HED">PART 7—EMPLOYEE INVENTIONS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>7.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>7.2</SECTNO> <SUBJECT>Responsibilities of the Department.</SUBJECT> <SECTNO>7.3</SECTNO> <SUBJECT>Responsibilities of heads of offices.</SUBJECT> <SECTNO>7.4</SECTNO> <SUBJECT>Responsibilities of the General Counsel.</SUBJECT> <SECTNO>7.5</SECTNO> <SUBJECT>Responsibilities of employees.</SUBJECT> <SECTNO>7.6</SECTNO> <SUBJECT>Effect of awards.</SUBJECT> <SECTNO>7.7</SECTNO> <SUBJECT>Appeals.</SUBJECT> <SECTNO>7.8</SECTNO> <SUBJECT>Delegation.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>33 FR 10088, July 13, 1968, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 7.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7.2</SECTNO> <SUBJECT>Responsibilities of the Department.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7.3</SECTNO> <SUBJECT>Responsibilities of heads of offices.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="167"/> <SECTNO>§ 7.4</SECTNO> <SUBJECT>Responsibilities of the General Counsel.</SUBJECT> <P>(a) The General Counsel shall be responsible for determining, subject to 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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 7.5</SECTNO> <SUBJECT>Responsibilities of employees.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7.6</SECTNO> <SUBJECT>Effect of awards.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 7.7</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 7.8</SECTNO> <SUBJECT>Delegation.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 8</EAR> <HD SOURCE="HED">PART 8—PRACTICE BEFORE THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Requirements</HD> <SECHD>Sec.</SECHD> <SECTNO>8.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>8.2</SECTNO> <SUBJECT>Persons who may practice.</SUBJECT> <SECTNO>8.3</SECTNO> <SUBJECT>Conference and practice requirements.</SUBJECT> <SECTNO>8.4</SECTNO> <SUBJECT>Director of Practice.</SUBJECT> <SECTNO>8.5</SECTNO> <SUBJECT>Records.</SUBJECT> <SECTNO>8.6</SECTNO> <SUBJECT>Special orders.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Definitions</HD> <SECTNO>8.11</SECTNO> <SUBJECT>Meaning of terms.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Enrollment Procedures</HD> <SECTNO>8.21</SECTNO> <SUBJECT>Eligibility for enrollment.</SUBJECT> <SECTNO>8.22</SECTNO> <SUBJECT>Application for enrollment.</SUBJECT> <SECTNO>8.23</SECTNO> <SUBJECT>Denial of enrollment; appeal.</SUBJECT> <SECTNO>8.24</SECTNO> <SUBJECT>Enrollment cards.</SUBJECT> <SECTNO>8.25</SECTNO> <SUBJECT>Renewal of enrollment card.</SUBJECT> <SECTNO>8.26</SECTNO> <SUBJECT>Change in enrollment.</SUBJECT> <SECTNO>8.27</SECTNO> <SUBJECT>Enrollment registers.</SUBJECT> <SECTNO>8.28</SECTNO> <SUBJECT>Termination of enrollment.</SUBJECT> <SECTNO>8.29</SECTNO> <SUBJECT>Limited practice without enrollment.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Duties and Restrictions Relating to Practice</HD> <SECTNO>8.31</SECTNO> <SUBJECT>Furnishing of information.</SUBJECT> <SECTNO>8.32</SECTNO> <SUBJECT>Prompt disposition of pending matters.</SUBJECT> <SECTNO>8.33</SECTNO> <SUBJECT>Accuracy.</SUBJECT> <SECTNO>8.34</SECTNO> <SUBJECT>Knowledge of client's omission.</SUBJECT> <SECTNO>8.35</SECTNO> <SUBJECT>Assistance from disbarred or suspended persons and former Treasury employees.</SUBJECT> <SECTNO>8.36</SECTNO> <SUBJECT>Practice by partners of Government employees.</SUBJECT> <SECTNO>8.37</SECTNO> <SUBJECT>Practice by former Government employees.</SUBJECT> <SECTNO>8.38</SECTNO> <SUBJECT>Notaries.</SUBJECT> <SECTNO>8.39</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>8.40</SECTNO> <SUBJECT>Conflicting interests.</SUBJECT> <SECTNO>8.41</SECTNO> <SUBJECT>Solicitation.</SUBJECT> <SECTNO>8.42</SECTNO> <SUBJECT>Practice of law.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="168"/> <HD SOURCE="HED">Subpart E—Disciplinary Proceedings</HD> <SECTNO>8.51</SECTNO> <SUBJECT>Authority to disbar or suspend.</SUBJECT> <SECTNO>8.52</SECTNO> <SUBJECT>Disreputable conduct.</SUBJECT> <SECTNO>8.53</SECTNO> <SUBJECT>Initiation of disciplinary proceedings.</SUBJECT> <SECTNO>8.54</SECTNO> <SUBJECT>Conferences.</SUBJECT> <SECTNO>8.55</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <SECTNO>8.56</SECTNO> <SUBJECT>Service of complaint and other papers.</SUBJECT> <SECTNO>8.57</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>8.58</SECTNO> <SUBJECT>Supplemental charges.</SUBJECT> <SECTNO>8.59</SECTNO> <SUBJECT>Proof; variance; amendment of pleadings.</SUBJECT> <SECTNO>8.60</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <SECTNO>8.61</SECTNO> <SUBJECT>Representation.</SUBJECT> <SECTNO>8.62</SECTNO> <SUBJECT>Administrative Law Judge.</SUBJECT> <SECTNO>8.63</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>8.64</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>8.65</SECTNO> <SUBJECT>Depositions.</SUBJECT> <SECTNO>8.66</SECTNO> <SUBJECT>Transcript.</SUBJECT> <SECTNO>8.67</SECTNO> <SUBJECT>Proposed findings and conclusions.</SUBJECT> <SECTNO>8.68</SECTNO> <SUBJECT>Decision of Administrative Law Judge.</SUBJECT> <SECTNO>8.69</SECTNO> <SUBJECT>Appeal to the Secretary.</SUBJECT> <SECTNO>8.70</SECTNO> <SUBJECT>Decision of the Secretary.</SUBJECT> <SECTNO>8.71</SECTNO> <SUBJECT>Effect of disbarment or suspension.</SUBJECT> <SECTNO>8.72</SECTNO> <SUBJECT>Petition for reinstatement.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>42 FR 33026, June 29, 1977, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Requirements</HD> <SECTION> <SECTNO>§ 8.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 8.2</SECTNO> <SUBJECT>Persons who may practice.</SUBJECT> <P>(a) <E T="03">Attorneys.</E> 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.</P> <P>(b) <E T="03">Certified public accountants.</E> 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.</P> <P>(c) <E T="03">Enrollment practitioners.</E> 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.</P> <P>(d) <E T="03">Limited practitioners.</E> Any person qualified for limited practice without enrollment under the provisions of § 8.29 may practice before the Bureau.</P> <P>(e) <E T="03">Restrictions on Government officers and employees.</E> 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.</P> <P>(f) <E T="03">Restrictions on State officers and employees.</E> 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.</P> <P>(g) <E T="03">Customhouse brokers.</E> 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 <PRTPAGE P="169"/>or exportation of merchandise under customs or intenal revenue laws.</P> <APPRO>(Approved by the Office of Management and Budget under control number 1512-0418)</APPRO> <EXTRACT> <FP>(18 U.S.C. 203, 205; 5 U.S.C. 552(a) (80 Stat. 383, as amended))</FP> </EXTRACT> <CITA>[42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 8.3</SECTNO> <SUBJECT>Conference and practice requirements.</SUBJECT> <P>Conference and practice requrements of the Bureau of Alcohol, Tobacco and Firearms, including requirements for powers of attorney are set forth in:</P> <P>(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;</P> <P>(b) 27 CFR part 200 with respect to proceedings concerning permits issued under the Federal Alcohol Administration Act or the Internal Revenue Code;</P> <P>(c) 27 CFR 47.44 with respect to proceedings concerning licenses issued under the Arms Export Control Act (22 U.S.C. 2778);</P> <P>(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</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 8.4</SECTNO> <SUBJECT>Director of Practice.</SUBJECT> <P>(a) <E T="03">Appointment.</E> 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.</P> <P>(b) <E T="03">Duties.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 8.5</SECTNO> <SUBJECT>Records.</SUBJECT> <P>(a) <E T="03">Availability.</E> 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 § 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.</P> <P>(b) <E T="03">Disciplinary proceedings.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 8.6</SECTNO> <SUBJECT>Special orders.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Definitions</HD> <SECTION> <SECTNO>§ 8.11</SECTNO> <SUBJECT>Meaning of terms.</SUBJECT> <P>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 <E T="03">include</E> and <E T="03">including</E> do not exclude things not enumerated which are in the same general class.</P> <P> <E T="03">Administrative Law Judge.</E> The person appointed pursuant to 5 U.S.C. 3105, designated to preside over any administrative proceedings under this part.<PRTPAGE P="170"/> </P> <P> <E T="03">Attorney.</E> 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.</P> <P> <E T="03">Bureau.</E> The Bureau of Alcohol, Tobacco and Firearms, the Department of the Treasury, Washington, DC 20226.</P> <P> <E T="03">Certified public accountant.</E> Any person who is qualified to practice as a certified public accountant in any State, possession, territory, Commonwealth, or the District of Columbia.</P> <P> <E T="03">CFR.</E> The Code of Federal Regulations.</P> <P> <E T="03">Director.</E> The Director, Bureau of Alcohol, Tobacco and Firearms, the Department of the Treasury, Washington, DC.</P> <P> <E T="03">Enrolled practitioner.</E> Any person enrolled to practice before the Bureau of Alcohol, Tobacco and Firearms pursuant to Subpart C of this part.</P> <P> <E T="03">Practice before the Bureau.</E> 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.</P> <P> <E T="03">Secretary.</E> The Secretary of the Treasury.</P> <P> <E T="03">U.S.C.</E> The United States Code.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Enrollment Procedures</HD> <SECTION> <SECTNO>§ 8.21</SECTNO> <SUBJECT>Eligibility for enrollment.</SUBJECT> <P>(a) <E T="03">General qualifications.</E> 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.</P> <P>(b) <E T="03">Technical qualifications.</E> The Director may grant enrollment to practice only to persons possessing technical knowledge of the laws and regulations administered by the Bureau.</P> <P>(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.</P> <P>(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).</P> <P>(c) <E T="03">Natural persons.</E> Enrollment to practice may only be granted to natural persons who have become 18 years of age.</P> <P>(d) <E T="03">Attorneys, certified public accountants.</E> Enrollment if not available to persons who are attorneys or certified public accountants who qualify to practice without enrollment under § 8.2 (a) or (b).</P> <CITA>[42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 8.22</SECTNO> <SUBJECT>Application for enrollment.</SUBJECT> <P>(a) <E T="03">Information to be furnished.</E> 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 § 8.21(b) which enable him or her to render valuable service <PRTPAGE P="171"/>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).</P> <P>(b) <E T="03">Fee.</E> Each application for enrollment will be accompanied by a check 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.</P> <P>(c) <E T="03">Execution under oath.</E> All applications for enrollment will be executed under oath or affirmation.</P> <P>(d) <E T="03">Filing.</E> 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.</P> <P>(e) <E T="03">Additional information.</E> 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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 1512-0418)</APPRO> <SECAUTH>(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))</SECAUTH> <CITA>[42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977, as amended at 49 FR 14944, Apr. 16, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 8.23</SECTNO> <SUBJECT>Denial of enrollment; appeal.</SUBJECT> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 8.24</SECTNO> <SUBJECT>Enrollment cards.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 8.25</SECTNO> <SUBJECT>Renewal of enrollment card.</SUBJECT> <P>(a) <E T="03">Period of renewal.</E> 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.</P> <P>(b) <E T="03">Application.</E> 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 § 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.</P> <P>(c) <E T="03">Fee.</E> 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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 1512-0418)</APPRO> <SECAUTH>(5 U.S.C. 552(a) (80 Stat. 383, as amended))</SECAUTH> <CITA>[42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 8.26</SECTNO> <SUBJECT>Change in enrollment.</SUBJECT> <P>(a) <E T="03">Change in area of practice.</E> 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).<PRTPAGE P="172"/> </P> <P>(b) <E T="03">Application.</E> 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 § 8.22 but shall include information relating to technical qualifications only in those additional subject areas in which he or she is applying to practice.</P> <P>(c) <E T="03">Fee.</E> 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.</P> <APPRO>(Approved by the Office of Management and Budget under control number 1512-0418)</APPRO> <SECAUTH>(5 U.S.C. 552(a) (80 Stat. 383, as amended))</SECAUTH> <CITA>[42 FR 33026, June 29, 1977, as amended at 49 FR 14944, Apr. 16, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 8.27</SECTNO> <SUBJECT>Enrollment registers.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 8.28</SECTNO> <SUBJECT>Termination of enrollment.</SUBJECT> <P>(a) <E T="03">Attorneys, certified public accountants.</E> 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 § 8.2 (a) or (b), and that person shall surrender his or her enrollment card to the Director for cancellation.</P> <P>(b) <E T="03">Expiration of enrollment.</E> 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 § 8.25. In this case, the person may continue to practice before the Bureau until his or her application has been finally determined.</P> </SECTION> <SECTION> <SECTNO>§ 8.29</SECTNO> <SUBJECT>Limited practice without enrollment.</SUBJECT> <P>(a) <E T="03">General.</E> Individuals may appear on their own behalf and may otherwise appear without enrollment, providing they present satisfactory identification, in the following classes of cases:</P> <P>(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.</P> <P>(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.</P> <P>(3) Trusts, receiverships, guardianships, or estates may be represented by their trustees, receivers, guardians, administrators, executors, or their regular full-time employees.</P> <P>(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.</P> <P>(5) Unenrolled persons may participate in rulemaking as provided in 5 U.S.C. 553.</P> <P>(b) <E T="03">Special appearances.</E> 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Duties and Restrictions Relating to Practice</HD> <SECTION> <SECTNO>§ 8.31</SECTNO> <SUBJECT>Furnishing of information.</SUBJECT> <P>(a) <E T="03">To the Bureau.</E> 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 <PRTPAGE P="173"/>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.</P> <P>(b) <E T="03">To the Director of Practice.</E> 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 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.</P> </SECTION> <SECTION> <SECTNO>§ 8.32</SECTNO> <SUBJECT>Prompt disposition of pending matters.</SUBJECT> <P>No attorney, certified public accountant, or enrolled practitioner may unreasonably delay the prompt disposition of any matter before the Bureau.</P> </SECTION> <SECTION> <SECTNO>§ 8.33</SECTNO> <SUBJECT>Accuracy.</SUBJECT> <P>Each attorney, certified public accountant, and enrolled practitioner shall exercise due diligence in:</P> <P>(a) Preparing or assisting in the preparation of, approving, and filing returns, documents, affidavits, and other papers relating to Bureau matters;</P> <P>(b) Determining the correctness of any representations made by him or her to the Bureau; and</P> <P>(c) Determining the correctness of any information which he or she imparts to a client with reference to any matter administered by the Bureau.</P> </SECTION> <SECTION> <SECTNO>§ 8.34</SECTNO> <SUBJECT>Knowledge of client's omission.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 8.35</SECTNO> <SUBJECT>Assistance from disbarred or suspended persons and former Treasury employees.</SUBJECT> <P>No attorney, certified public accountant or enrolled practitioner shall, in practice before the Bureau, knowingly and directly or indirectly:</P> <P>(a) Employ or accept assistance from any person who is under disbarment or suspension from practice before any agency of the Treasury Department;</P> <P>(b) Accept employment as associate, correspondent, or subagent from, or share fees with, any such person;</P> <P>(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.</P> <CITA>[44 FR 47059, Aug. 10, 1979]</CITA> </SECTION> <SECTION> <SECTNO>§ 8.36</SECTNO> <SUBJECT>Practice by partners of Government employees.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 8.37</SECTNO> <SUBJECT>Practice by former Government employees.</SUBJECT> <P>(a) <E T="03">Violation of law.</E> 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.</P> <P>(b) <E T="03">Personal and substantial participation.</E> 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.</P> <P>(c) <E T="03">Official responsibility.</E> No former officer or employee of the executive <PRTPAGE P="174"/>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.</P> <P>(d) <E T="03">Aid or assistance.</E> 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.</P> <APPRO>(18 U.S.C. 207) </APPRO> </SECTION> <SECTION> <SECTNO>§ 8.38</SECTNO> <SUBJECT>Notaries.</SUBJECT> <P>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.</P> <APPRO>(26 Op. Atty. Gen. 236)</APPRO> </SECTION> <SECTION> <SECTNO>§ 8.39</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>No attorney, certified public accountant, or enrolled practitioner may charge an unconscionable fee for representing a client in any matter before the Bureau.</P> </SECTION> <SECTION> <SECTNO>§ 8.40</SECTNO> <SUBJECT>Conflicting interests.</SUBJECT> <P>No attorney, certified public accountant, or enrolled practitioner may represent conflicting interests in practice before the Bureau, except by express consent of all directly interested parties after full disclosure has been made.</P> </SECTION> <SECTION> <SECTNO>§ 8.41</SECTNO> <SUBJECT>Solicitation.</SUBJECT> <P>(a) <E T="03">Advertising and solicitation restrictions.</E> (1) No attorney, certified public accountant or enrolled practitioner shall, with respect to any Bureau matter, in any way use or participate in the use of any form of public communication containing a false, fraudulent, misleading, deceptive, unduly influencing, coercive or unfair statement or claim. For the purposes of this subsection, the prohibition includes, but is not limited to, statements pertaining to the quality of services rendered unless subject to factual verification, claims of specialized expertise not authorized by State or Federal agencies having jurisdiction over the practitioner, and statements or suggestions that the ingenuity and/or prior record of a representative rather than the merit of the matter are principal factors likely to determine the result of the matter.</P> <P>(2) No attorney, certified public accountant or enrolled practitioner shall make, directly or indirectly, an uninvited solicitation of employment, in matters related to the Bureau. Solicitation includes, but is not limited to, in-person contacts, telephone communications, and personal mailings directed to the specific circumstances unique to the recipient. This restriction does not apply to: (i) Seeking new business from an existing or former client in a related matter; (ii) solicitation by mailings, the contents of which are designed for the general public; or (iii) non-coercive in-person solicitation by those eligible to practice before the Bureau while acting as an employee, member, or officer of an exempt organization listed in sections 501(c) (3) or (4) of the Internal Revenue Code of 1954 (26 U.S.C.).</P> <P>(b) <E T="03">Permissible advertising.</E> (1) Attorneys, certified public accountants and enrolled practitioners may publish, broadcast, or use in a dignified manner through any means of communication set forth in paragraph (d) of this section:</P> <P>(i) The name, address, telephone number, and office hours of the practitioner or firm.</P> <P>(ii) The names of individuals associated with the firm.</P> <P>(iii) A factual description of the services offered.</P> <P>(iv) Acceptable credit cards and other credit arrangements.</P> <P>(v) Foreign language ability.<PRTPAGE P="175"/> </P> <P>(vi) Membership in pertinent, professional organizations.</P> <P>(vii) Pertinent professional licenses.</P> <P>(viii) A statement that an individual's or firm's practice is limited to certain areas.</P> <P>(ix) In the case of an enrolled practitioner, the phrase “enrolled to practice before the Bureau of Alcohol, Tobacco and Firearms.”</P> <P>(x) Other facts relevant to the selection of a practitioner in matters related to the Bureau which are not prohibited by these regulations.</P> <P>(2) Attorneys, certified public accountants and enrolled practitioners may use, to the extent they are consistent with the regulations in this section, customary biographical insertions in approved law lists and reputable professional journals and directories, as well as professional cards, letterheads and announcements: <E T="03">Provided,</E> That (i) attorneys do not violate applicable standards of ethical conduct adopted by the American Bar Association, (ii) certified public accountants do not violate applicable standards of ethical conduct adopted by the American Institute of Certified Public Accountants, and (iii) enrolled practitioners do not violate applicable standards of ethical conduct adopted by the National Society of Public Accountants.</P> <P>(c) <E T="03">Fee information.</E> (1) Attorneys, certified public accountants and enrolled practitioners may disseminate the following fee information:</P> <P>(i) Fixed fees for specific routine services.</P> <P>(ii) Hourly rates.</P> <P>(iii) Range of fees for particular services.</P> <P>(iv) Fee charged for an initial consultation.</P> <P>(2) Attorneys, certified public accountants and enrolled practitioners may also publish the availability of a written schedule of fees.</P> <P>(3) Attorneys, certified public accountants and enrolled practitioners shall be bound to charge the hourly rate, the fixed fee for specific routine services, the range of fees for particular services, or the fee for an initial consultation published for a reasonable period of time, but no less than thirty days from the last publication of such hourly rate or fees.</P> <P>(d) <E T="03">Communications.</E> Communications, including fee information, shall be limited to professional lists, telephone directories, print media, permissible mailings as provided in these regulations, radio and television. In the case of radio and television broadcasting, the broadcast shall be pre-recorded and the practitioner shall retain a recording of the actual audio transmission.</P> <P>(e) <E T="03">Improper associations.</E> An attorney, certified public accountant or enrolled practitioner may, in matters related to the Bureau, employ or accept employment or assistance as an associate, correspondent, or subagent from, or share fees with, any person or entity who, to the knowledge of the practitioner, obtains clients or otherwise practices in a manner forbidden under this section: <E T="03">Provided,</E> That an attorney, certified public accountant or enrolled practitioner does not, directly or indirectly, act or hold himself out as authorized to practice before the Bureau in connection with that relationship. Nothing herein shall prohibit an attorney, certified public accountant, or enrolled practitioner from practice before the Bureau in a capacity other than that described above.</P> <CITA>[44 FR 47060, Aug. 10, 1979]</CITA> </SECTION> <SECTION> <SECTNO>§ 8.42</SECTNO> <SUBJECT>Practice of law.</SUBJECT> <P>Nothing in the regulations in this part may be construed as authorizing persons not members of the bar to practice law.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Disciplinary Proceedings</HD> <SECTION> <SECTNO>§ 8.51</SECTNO> <SUBJECT>Authority to disbar or suspend.</SUBJECT> <P>The Secretary, after due notice and opportunity for hearing, may suspend or disbar from practice before the Bureau any attorney, certified public accountant, or enrolled practitioner shown to be incompetent, disreputable or who refuses to comply with the rules and regulations in this part or who shall, with intent to defraud, in any manner willfully and knowingly deceive, mislead, or threaten any client <PRTPAGE P="176"/>or prospective client, by word, circular, letter, or by advertisement.</P> <APPRO>(Sec. 3, 23 Stat. 258 (31 U.S.C. 1026))</APPRO> </SECTION> <SECTION> <SECTNO>§ 8.52</SECTNO> <SUBJECT>Disreputable conduct.</SUBJECT> <P>Disreputable conduct for which an attorney, certified public accountant, or enrolled practitioner may be disbarred or suspended from practice before the Bureau includes, but is not limited to:</P> <P>(a) Conviction of any criminal offense under the revenue laws of the United States; under any other law of the United States which the Bureau enforces pursuant to Treasury Department Order No. 221 (37 FR 11696) effective July 1, 1972; or for any offense involving dishonesty or breach of trust.</P> <P>(b) Giving false or misleading information, or participating in any way in the giving of false or misleading information, to the Bureau or any officer or employee thereof, or to any tribunal authorized to pass upon matters administered by the Bureau in connection with any matter pending or likely to be pending before them, knowing the information to be false or misleading. Facts or other matters contained in testimony, Federal tax returns, financial statements, applications for enrollment, affidavits, declarations, or any other document or statement, written or oral, are included in the term “information”.</P> <P>(c) Solicitation of employment as prohibited under § 8.41, the use of false or misleading representations with intent to deceive a client or a prospective client in order to procure employment, or intimating that the practitioner is able improperly to obtain special consideration or action from the Bureau or an officer or employee thereof.</P> <P>(d) Willfully failing to make a Federal tax return in violation of the revenue laws of the United States, or evading, attempting to evade, or participating in any way in evading or attempting to evade any Federal tax or payment thereof; knowingly counseling or suggesting to a client or prospective client an illegal plan to evade Federal taxes or payment thereof, or concealing assets of himself or herself, or of another in order to evade Federal taxes or payment thereof.</P> <P>(e) Misappropriation of, or failure properly and promptly to remit funds received from a client for the purpose of payment of taxes or other obligations due the United States.</P> <P>(f) Directly or indirectly attempting to influence, or offering or agreeing to attempt to influence, the official action of any officer or employee of the Bureau by the use of threats, false accusations, duress or coercion, by the offer of any special inducement or promise of advantage or by the bestowing of any gift, favor, or thing of value.</P> <P>(g) Disbarment or suspension from practice as an attorney or certified public accountant by any duly constituted authority of any State, possession, Commonwealth, the District of Columbia, or by any Federal court of record.</P> <P>(h) Disbarment or suspension from practice as an attorney, certified public accountant, or other person admitted to practice before the Internal Revenue Service.</P> <P>(i) Knowingly aiding and abetting another person to practice before the Bureau during a period of suspension, disbarment, or ineligibility of the other person. Maintaining a partnership for the practice of law, accountancy, or other related professional service with a person who is under disbarment from practice before the Bureau or the Intenal Revenue Service is presumed to be a violation of this provision.</P> <P>(j) Contemptuous conduct in connection with practice before the Bureau, including the use of abusive language, making false accusations and statements knowing them to be false, or circulating or publishing malicious or libelous matter.</P> <P>(k) Willful violatin of any of the regulations contained in this part.</P> <CITA>[42 FR 33026, June 29, 1977; 42 FR 36455, July 15, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 8.53</SECTNO> <SUBJECT>Initiation of disciplinary proceedings.</SUBJECT> <P>(a) <E T="03">Receipt of information.</E> If an officer or employee of the Bureau has reason to believe that an attorney, certified public accountant, or enrolled practitioner has violated any of the provisions of this part or engaged in any disreputable conduct as defined in § 8.52, the employee shall promptly make a <PRTPAGE P="177"/>report thereof which will be forwarded to the Director of Practice. Any other person possessing information concerning violations or disreputable conduct may make a report thereof to the Director of Practice or to any officer or employee of the Bureau.</P> <P>(b) <E T="03">Institution of proceeding.</E> When the Director of Practice has reason to believe that any attorney, certified public accountant, or enrolled practitioner has violated any provisions of the laws or regulations governing practice before the Bureau, he or she may reprimand the person or institute a proceeding for the disbarment or suspension of that person. The proceeding will be instituted by a complaint which names the respondent and is signed by the Director of Practice and filed in his or her office. Except in cases of willfulness, or when time, the nature of the proceeding, or the public interest does not permit, the Director of Practice may not institute a proceeding until he or she has called to the attention of the proposed respondent, in writing, facts or conduct which warrant institution of a proceeding, and has accorded the proposed respondent the opportuity to demonstrate or achieve compliance with all lawful requirements.</P> </SECTION> <SECTION> <SECTNO>§ 8.54</SECTNO> <SUBJECT>Conferences.</SUBJECT> <P>(a) <E T="03">General.</E> The Director of Practice may confer with an attorney, certified public accountant, or enrolled practioner concerning allegations of misconduct whether or not a proceeding for disbarment or suspension has been instituted. If a conference results in a stipulation in connection with a proceeding in which that person is the respondent, the stipulaton may be entered in the record at the instance of either party to the proceeding.</P> <P>(b) <E T="03">Resignation or voluntary suspension.</E> An attorney, certified public accountant, or enrolled practitioner, in order to avoid the institution or conclusion of a disbarment or suspension proceeding, may offer his or her consent to suspension from practice before the Bureau. An enrolled practitioner may also offer a resignation. The Director of Practice, at his or her discretion, may accept the offered resignation of an enrolled practitioner and may suspend an attorney, certified public accountant, or enrolled practitioner in accordance with the consent offered.</P> </SECTION> <SECTION> <SECTNO>§ 8.55</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <P>(a) <E T="03">Charges.</E> A complaint will give a plain and concise description of the allegations which constitute the basis for the proceeding. A complaint will be deemed sufficient if it fairly informs the respondent of the charges to that he or she is able to prepare a defense.</P> <P>(b) <E T="03">Demand for answer.</E> The complaint will give notification of the place and time prescribed for the filing of an answer by the respondent; that time will be not less than 15 days from the date of service of the complaint. Notice will be given that a decision by default may be rendered against the respondent if the complaint is not answered as required.</P> </SECTION> <SECTION> <SECTNO>§ 8.56</SECTNO> <SUBJECT>Service of complaint and other papers.</SUBJECT> <P>(a) <E T="03">Complaint.</E> A copy of the complaint may be served upon the respondent by certified mail or by first-class mail. The copy of the complaint may be delivered to the respondent or the respondent's attorney or agent of record either in person or by leaving it at the office or place of business of the respondent, attorney or agent, or the complaint may be delivered in any manner which has been agreed to by the respondent. If the service is by certified mail, the post office receipt signed by or on behalf of the respondent will be proof of service. If the certified matter is not claimed or accepted by the respondent and is returned undelivered, complete service may be made upon the respondent by mailing the complaint to him or her by first-class mail, addressed to the respondent at the address under which he or she is enrolled or at the last address known to the Director of Practice. If service is made upon the respondent or the respondent's attorney or agent in person, or by leaving the complaint at the office or place of business of the respondent, attorney or agent, the verified return by the person making service, setting forth the manner of service, will be proof of service.</P> <P>(b) <E T="03">Service of other papers.</E> Any paper other than the complaint may be <PRTPAGE P="178"/>served upon an attorney, certified public accountant, or enrolled practitioner as provided in paragraph (a) of this section, or by mailing the paper by first-class mail to the respondent at the last address known to the Director of Practice, or by mailing the paper by first-class mail to the respondent's attorney or agent of record. This mailing will constitute complete service. Notices may be served upon the respondent or his attorney or agent by telegram.</P> <P>(c) <E T="03">Filing of papers.</E> When the filing of a paper is required or permitted in connection with a disbarment or suspension proceeding, and the place of filing is not specified by this subpart or by rule or order of the Administrative Law Judge, the papers will be filed with the Director of Practice, Treasury Department, Washington, DC 20220. All papers will be filed in duplicate.</P> </SECTION> <SECTION> <SECTNO>§ 8.57</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>(a) <E T="03">Filing.</E> The respondent shall file the answer in writing within the time specified in the complaint or notice of institution of the proceeding, unless on application the time is extended by the Director of Practice or the Administrative Law Judge. The respondent shall file the answer in duplicate with the director of Practice.</P> <P>(b) <E T="03">Contents.</E> The respondent shall include in the answer a statement of facts which constitute the grounds of defense, and shall specifically admit or deny each allegation set forth in the complaint, except that the respondent shall not deny a material allegation in the complaint which he or she knows to be true, or state that he or she is without sufficient information to form a belief when in fact the respondent possesses that information. The respondent may also state affirmatively special matters of defense.</P> <P>(c) <E T="03">Failure to deny or answer allegations in the complaint.</E> Every allegation in the complaint which is not denied in the answer is deemed to be admitted and may be considered as proven, and no further evidence in respect of that allegation need be adduced at a hearing. Failure to file an answer within the time prescribed in the notice to the respondent, except as the time for answer is extended by the Director of Practice or the Administrative Law Judge, will constitute an admission of the allegations of the complaint and a waiver of hearing, and the Administrative Law Judge may make a decision by default without a hearing or further procedure.</P> <P>(d) <E T="03">Reply by Director of Practice.</E> No reply to the respondent's answer is required, and new matter in the answer will be deemed to be denied, but the Director of Practice may file a reply at his or her discretion or at the request of the Administrative Law Judge.</P> </SECTION> <SECTION> <SECTNO>§ 8.58</SECTNO> <SUBJECT>Supplemental charges.</SUBJECT> <P>If it appears that the respondent in his or her answer, falsely and in bad faith, denies a material allegation of fact in the complaint or states that the respondent has no knowledge sufficient to form a belief, when he or she in fact possesses that information, or if it appears that the respondent has knowingly introduced false testimony during proceedings for his or her disbarment or suspension, the Director of Practice may file supplemental charges against the respondent. These supplemental charges may be tried with other charges in the case, provided the respondent is given due notice and is afforded an opportunity to prepare to a defense to them.</P> </SECTION> <SECTION> <SECTNO>§ 8.59</SECTNO> <SUBJECT>Proof; variance; amendment of pleadings.</SUBJECT> <P>In the case of a variance between the allegations in a pleading, the Administrative Law Judge may order or authorize amendment of the pleading to conform to the evidence. The party who would otherwise be prejudiced by the amendment will be given reasonable opportunty to meet the allegation of the pleading as amended, and the Administrative Law Judge shall make findings on an issue presented by the pleadings as so amended.</P> </SECTION> <SECTION> <SECTNO>§ 8.60</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <P>Motions and requests may be filed with the Director of Practice or with the Administrative Law Judge.</P> </SECTION> <SECTION> <SECTNO>§ 8.61</SECTNO> <SUBJECT>Representation.</SUBJECT> <P>A respondent or proposed respondent may appear in person or be represented by counsel or other representative who need not be enrolled to practice before <PRTPAGE P="179"/>the Bureau. The Director of Practice may be represented by an Attorney or other employee of the Treasury Department.</P> </SECTION> <SECTION> <SECTNO>§ 8.62</SECTNO> <SUBJECT>Administrative Law Judge.</SUBJECT> <P>(a) <E T="03">Appointment.</E> An Administrative Law Judge, appointed as provided by 5 U.S.C. 3105, shall conduct proceedings upon complaints for the disbarment or suspension of attorneys, certified public accountants, or enrolled practitioners.</P> <P>(b) <E T="03">Responsibilities.</E> The Administrative Law Judge in connection with any disbarment or suspension proceeding shall have authority to:</P> <P>(1) Administer oaths and affirmation;</P> <P>(2) Make rulings upon motions and requests; these rulings may not be appealed prior to the close of the hearing except at the discretion of the Administrative Law Judge in extraordinary circumstances;</P> <P>(3) Rule upon offers of proof, receive relevant evidence, and examine witnesses;</P> <P>(4) Take or authorize to the taking of depositions;</P> <P>(5) Determine the time and place of hearing and regulate its course and conduct;</P> <P>(6) Hold or provide for the holding of conferences to settle or simplify the issues by consent of the parties;</P> <P>(7) Receive and consider oral or written arguments on facts or law;</P> <P>(8) Make initial decisions;</P> <P>(9) Adopt rules of procedure and modify them from time to time as occasion requires for the orderly disposition of proceedings; and</P> <P>(10) Perform acts and take measures as necessary to promote the efficient conduct of any proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 8.63</SECTNO> <SUBJECT>Hearings.</SUBJECT> <P>(a) <E T="03">Conduct.</E> The Administrative Law Judge shall preside at the hearing on a complaint for the disbarment or suspension of an attorney, certified public accountant, or enrolled practitioner. Hearings will be stenographically recorded and transcribed and the testimony of witnesses will be received under oath or affirmation. The Administrative Law Judge shall conduct hearings pursuant to 5 U.S.C. 556.</P> <P>(b) <E T="03">Failure to appear.</E> If either party to the proceedings fails to appear at the hearing, after due notice has been sent, the Administrative Law Judge may deem them to have waived the right to a hearing and may make a decision against the absent party by default.</P> </SECTION> <SECTION> <SECTNO>§ 8.64</SECTNO> <SUBJECT>Evidence.</SUBJECT> <P>(a) <E T="03">Rules of evidence.</E> The rules of evidence prevailing in courts of law and equity are not controlling in hearings. However, the Administrative Law Judge shall exclude evidence which is irrelevant, immaterial, or unduly repetitious.</P> <P>(b) <E T="03">Depositions.</E> Depositions of witnesses taken pursuant to § 8.65 may be admitted as evidence.</P> <P>(c) <E T="03">Government documents.</E> Official documents, records, and papers of the Bureau of Alcohol, Tobacco and Firearms and the Office of the Director of Practice are admissible in evidence without the prouction of an officer or employee to authenticate them. These documents, records and papers may be evidenced by a copy attested or identified by an officer or employee of the Bureau or the Treasury Department.</P> <P>(d) <E T="03">Exhibits.</E> If any document, record, or other paper is introduced in evidence as an exhibit, the Administrative Law Judge may authorize the withdrawal of the exhibit subject to any conditions he or she deems proper.</P> <P>(e) <E T="03">Objections.</E> Objections to evidence will be in short form, stating the grounds of objection and the record may not include arguments thereon, except as ordered by the Administrative Law Judge. Rulings on objections will be a part of the record. No exception to the ruling is necessary to preserve the rights of the parties.</P> </SECTION> <SECTION> <SECTNO>§ 8.65</SECTNO> <SUBJECT>Depositions.</SUBJECT> <P>Depositions for use at a hearing may, with the written approval of the Administrative Law Judge, be taken by either the Director of Practice or the respondent or their authorized representatives. Depositions may be taken upon oral or written questioning, upon not less than 10 days’ written notice to the other party before any officer authorized to administer an oath for general purposes or before an officer or <PRTPAGE P="180"/>employee of the Bureau authorized to administer an oath pursuant to 27 CFR 70.35. The written notice will state the names of the witnesses and the time and place where the depositions are to be taken. The requirement of 10 days’ notice may be waived by the parties in writing, and depositions may then be taken from the persons and at the times and places mutually agreed to by the parties. When a deposition is taken upon written questioning, any cross-examination will be upon written questioning. Copies of the written questioning will be served upon the other party with the notice, and copies of any written cross-interrogation will be mailed or delivered to the opposing party at least 5 days before the date of taking the depositions, unless the parties mutually agree otherwise. A party on whose behalf a deposition is taken must file it with the Administrative Law Judge and serve one copy upon the opposing party. Expenses in the reproduction of depositions will be borne by the party at whose instance the deposition is taken.</P> </SECTION> <SECTION> <SECTNO>§ 8.66</SECTNO> <SUBJECT>Transcript.</SUBJECT> <P>In cases in which the hearing is stenographically reported by a Government contract reporter, copies of the transcript may be obtained from the reporter at rates not to exceed the maximum rates fixed by contract between the Government and the reporter. If the hearing is stenographically reported by a regular employee of the Bureau, a copy of the hearing will be supplied to the respondent either without charge or upon the payment of a reasonable fee. Copies of exhibits introduced at the hearing or at the taking of depositions will be supplied to the parties upon the payment of a reasonable fee.</P> <APPRO>(Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a))</APPRO> </SECTION> <SECTION> <SECTNO>§ 8.67</SECTNO> <SUBJECT>Proposed findings and conclusions.</SUBJECT> <P>Except in cases when the respondent has failed to answer the complaint or when a party has failed to appear at the hearing, the Administrative Law Judge, prior to making his or her decision, shall afford the parties a reasonable opportunity to submit proposed findings and conclusions and their supporting reasons.</P> </SECTION> <SECTION> <SECTNO>§ 8.68</SECTNO> <SUBJECT>Decision of Administrative Law Judge.</SUBJECT> <P>As soon as practicable after the conclusion of a hearing and the receipt of any proposed findings and conclusions timely submitted by the parties, the Administrative Law Judge shall make the initial decision in the case. The decision will include (a) a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record, and (b) an order of disbarment, suspension, or reprimand or an order of dismissal of the complaint. The Administrative Law Judge shall file the decision with the Director of Practice and shall transmit a copy to the respondent or the respondent's attorney of record. In the absence of an appeal to the Secretary, or review of the decision upon motion of the Secretary, the decision of the Administrative Law Judge will, without further proceedings, become the decision of the Secretary of the Treasury 30 days from the date of the Administrative Law Judge's decision.</P> </SECTION> <SECTION> <SECTNO>§ 8.69</SECTNO> <SUBJECT>Appeal to the Secretary.</SUBJECT> <P>Within 30 days from the date of the Administrative Law Judge's decision, either party may appeal to the Secretary. The appeal will be filed with the Director of Practice in duplicate and will include exceptions to the decision of the Administrative Law Judge and supporting reasons for those exceptions. If the Director of Practice files the appeal, he or she shall transmit a copy of it to the respondent. Within 30 days after receipt of an appeal or copy thereof, the other party may file a reply brief in duplicate with the Director of Practice. If the Director of Practice files the reply brief, he or she shall transmit a copy of it to the respondent. Upon the filing of an appeal and a reply brief, if any, the Director of Practice shall transmit the entire record to the Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 8.70</SECTNO> <SUBJECT>Decision of the Secretary.</SUBJECT> <P>On appeal from or review of the intial decision of the Administrative Law Judge, the Secretary shall make the <PRTPAGE P="181"/>agency decision. In making this decision, the Secretary shall review the record or those portions of the records as may be cited by the parties in order to limit the issues. The Director of Prasctice shall transmit a copy of the Secretary's decision to the respondent.</P> </SECTION> <SECTION> <SECTNO>§ 8.71</SECTNO> <SUBJECT>Effect of disbarment or suspension.</SUBJECT> <P>(a) <E T="03">Disbarment.</E> If the final order against the respondent is for disbarment, the respondent will not thereafter be permitted to practice before the Bureau unless authorized to do so by the Director of Practice pursuant to § 8.72.</P> <P>(b) <E T="03">Suspension.</E> If the final order against the respondent is for suspension, the respondent will not thereafter be permitted to practice before the Bureau during the period of suspension.</P> <P>(c) <E T="03">Surrender of enrollment card.</E> If an enrolled practitioner is disbarred or suspended, he or she shall surrender the enrollment card to the Director of Practice for cancellation, in the case of disbarment, or for retention during the period of suspension.</P> <P>(d) <E T="03">Notice of disbarment or suspension.</E> Upon the issuance of a final order for suspension or disbarment, the Director of Practice shall give notice of the order to appropriate officers and employees of the Bureau of Alcohol, Tobacco and Firearms and to interested departments and agencies of the Federal Government. The Director of Practice may also give notice as he or she may determine to the proper authorities of the State in which the disbarred or suspended person was licensed to practice as an attorney or certified public accountant.</P> </SECTION> <SECTION> <SECTNO>§ 8.72</SECTNO> <SUBJECT>Petition for reinstatement.</SUBJECT> <P>The Director of Practice may entertain a petition for reinstatement from any person disbarred from practice before the Bureau after the expiration of 5 years following disbarment. The director of Practice may not grant reinstatement unless he or she is satisfied that the petitioner is not likely to conduct himself or herself contrary to the regulations in this part, and that granting reinstatement would not be contrary to the public interest.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 9</EAR> <HD SOURCE="HED">PART 9—EFFECTS OF IMPORTED ARTICLES ON THE NATIONAL SECURITY</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>9.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>9.3</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>9.4</SECTNO> <SUBJECT>Criteria for determining effects of imports on national security.</SUBJECT> <SECTNO>9.5</SECTNO> <SUBJECT>Applications for investigation.</SUBJECT> <SECTNO>9.6</SECTNO> <SUBJECT>Confidential information.</SUBJECT> <SECTNO>9.7</SECTNO> <SUBJECT>Conduct of investigation.</SUBJECT> <SECTNO>9.8</SECTNO> <SUBJECT>Emergency action.</SUBJECT> <SECTNO>9.9</SECTNO> <SUBJECT>Report.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 232, as amended, 76 Stat. 877, 80 Stat. 369 (19 U.S.C. 1862); 5 U.S.C. 301; Reorg. Plan No. 1 of 1973; and E.O. 11725, June 27, 1973 (38 FR 17175).</P> </AUTH> <SECTION> <SECTNO>§ 9.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used herein, <E T="03">Secretary</E> means the Secretary of the Treasury and <E T="03">Assistant Secretary</E> means the Assistant Secretary of the Treasury (Enforcement, Operations, and Tariff Affairs).</P> <CITA>[40 FR 50717, Oct. 31, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 9.3</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) Upon request of the head of any Government department or agency, upon application of an interested party, or upon his own motion, the Assistant Secretary shall set in motion an immediate investigation to determine the effects on the national security of imports of any article.</P> <P>(b) The Secretary shall report the findings of his investigation under paragraph (a) of this section with respect to the effect of the importation of such article in such quantities or under such circumstances upon the national security and, based on such findings, his recommendation for action or inaction to the President within one year after receiving an application from an interested party or otherwise beginning an investigation under this section.</P> <CITA>[39 FR 10898, Mar. 22, 1974, as amended at 40 FR 50717, Oct. 31, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 9.4</SECTNO> <SUBJECT>Criteria for determining effects of imports on national security.</SUBJECT> <P>(a) In determining the effect on the national security of imports of the article which is the subject of the investigation, the Secretary is required to take into consideration the following:<PRTPAGE P="182"/> </P> <P>(1) Domestic production needed for projected national defense requirements including restoration and rehabilitation.</P> <P>(2) The capacity of domestic industries to meet such projected requirements, including existing and anticipated availabilities of:</P> <P>(i) Human resources.</P> <P>(ii) Products.</P> <P>(iii) Raw materials.</P> <P>(iv) Production equipment and facilities.</P> <P>(v) Other supplies and services essential to the national defense.</P> <P>(3) The requirement of growth of such industries and such supplies and services including the investment, exploration and development necessary to assure capacity to meet projected defense requirements.</P> <P>(4) The effect which the quantities, availabilities, character and uses of imported goods have or will have on such industries and the capacity of the United States to meet national security requirements.</P> <P>(5) The economic welfare of the Nation as it is related to our national security, including the impact of foreign competition on the economic welfare of individual domestic industries. In determining whether such impact may impair the national security, any substantial unemployment, decrease in revenues of government, loss of skills or investment, or other serious effects shall be considered.</P> <P>(b) The Secretary shall also consider other relevant factors in determining whether the national security is affected by imports of the article.</P> <CITA>[39 FR 10898, Mar. 22, 1974]</CITA> </SECTION> <SECTION> <SECTNO>§ 9.5</SECTNO> <SUBJECT>Applications for investigation.</SUBJECT> <P>(a) Applications shall be in writing. Twenty-five copies shall be filed by mail with the Assistant Secretary (Enforcement, Operations, and Tariff Affairs), Department of the Treasury, Washington, DC 20220.</P> <P>(b) Applications shall describe how the quantities or circumstances of imports of the particular article affect the national security and shall contain the following information:</P> <P>(1) Identification of the person, partnership, association, corporation, or other entity on whose behalf the application is filed.</P> <P>(2) A precise description of the article.</P> <P>(3) Description of the applicant and the domestic industry concerned, including pertinent information regarding companies and their plants, locations, capacity and current output of the domestic industry concerned with the article in question.</P> <P>(4) Pertinent statistics showing the quantities and values of both imports and production in the United States.</P> <P>(5) Nature, sources, and degree of the competition created by imports of the article in question.</P> <P>(6) The effect, if any, of imports of the article in question upon the restoration of domestic production capacity in an emergency.</P> <P>(7) Employment and special skills involved in the domestic production of the article.</P> <P>(8) Extent to which investment and specialized productive capacity is or will be adversely affected.</P> <P>(9) Revenues of Federal, State, or local Governments which are or may be affected by the volume or circumstances of imports of the article.</P> <P>(10) Defense or defense supporting uses of the article including data on defense contracts or sub-contracts, both past and current.</P> <P>(c) Statistical material presented should be on a calendar-year basis for sufficient periods of time to indicate trends and afford the greatest possible assistance to the Assistant Secretary. Monthly or quarterly data for the latest complete years should be included as well as any other breakdowns which may be pertinent to show seasonal or short-term factors.</P> <CITA>[39 FR 10898, Mar. 22, 1974, as amended at 40 FR 50717, Oct. 31, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 9.6</SECTNO> <SUBJECT>Confidential information.</SUBJECT> <P>Information submitted in confidence which the Assistant Secretary determines would disclose trade secrets and commercial or financial information obtained from a person and privileged, within the meaning of 5 U.S.C. 552 and 31 CFR part 1, will be accorded confidential treatment. All information submitted in confidence must be on <PRTPAGE P="183"/>separate pages marked “Business Confidential.”</P> <CITA>[40 FR 50717, Oct. 31, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 9.7</SECTNO> <SUBJECT>Conduct of investigation.</SUBJECT> <P>(a) The investigation by the Assistant Secretary or by such official or agency as he may designate, shall be such as to enable the Secretary to arrive at a fully informed opinion as to the effect on the national security of imports of the article in question.</P> <P>(b) If the Assistant Secretary determines that it is appropriate to hold public hearings or otherwise afford interested parties an opportunity to present information and advice relevant to an investigation, he shall issue a public notice which shall be published in the <E T="04">Federal Register</E>. Such notice shall include a statement of the time, place and nature of any public hearing or shall solicit from any interested party written comments, opinions, or data relative to the investigation, to be submitted to the Assistant Secretary within the time period specified in the notice. Rebuttal to material so submitted may be filed with the Assistant Secretary within such time as is specified in the public notice. All data, comments and opinions shall be submitted with 25 copies.</P> <P>(c) All applications filed and all comments, opinions, and data submitted pursuant to paragraph (b) of this section, except information determined to be confidential as provided in § 9.6, will be available for inspection and copying at the Office of the Assistant Secretary (Enforcement, Operations, and Tariff Affairs), Department of the Treasury, in Washington, DC. The Assistant Secretary will maintain a roster of persons who have submitted materials.</P> <P>(d) The Assistant Secretary or his designee may also request further data from other sources through the use of questionnaires, correspondence, or other means.</P> <P>(e) The Assistant Secretary or his delegate shall, in the course of the investigation, seek information or advice from, and consult with, the Secretary of Defense, the Secretary of Commerce, or their delegates, and any other appropriate officer of the United States as the Assistant Secretary shall determine.</P> <P>(f) In addition, the Assistant Secretary, or his designee, may, when he deems it appropriate, hold public hearings to elicit further information. If a hearing is held:</P> <P>(1) The time and place thereof will be published in the <E T="04">Federal Register</E>.</P> <P>(2) It will be conducted by the Assistant Secretary or his designee, and the full record will be considered by the Secretary in arriving at his determination.</P> <P>(3) Interested parties may appear, either in person or by representation, and produce oral or written evidence relevant and material to the subject matter of the investigation.</P> <P>(4) After a witness has testified the Assistant Secretary or his designee may question the witness. Questions submitted to the Assistant Secretary or his designee in writing by any interested party may, at the discretion of the Assistant Secretary or his designee, be posed to the witness for reply for the purpose of assisting the Assistant Secretary in obtaining the material facts with respect to the subject matter of the investigation.</P> <P>(5) The hearing will be stenographically reported. The Assistant Secretary will not cause transcripts of the record of the hearing to be distributed to the interested parties, but a transcript may be inspected at the Office of the Assistant Secretary (Enforcement, Operations, and Tariff Affairs), Department of the Treasury, in Washington, DC, or purchased from the reporter.</P> <CITA>[39 FR 10898, Mar. 22, 1974, as amended at 40 FR 50717, Oct. 31, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 9.8</SECTNO> <SUBJECT>Emergency action.</SUBJECT> <P>In emergency situations or when in his judgment national security interests require it, the Secretary may vary or dispense with any of the procedures set forth above and may formulate his views without following such procedures.</P> <CITA>[39 FR 10898, Mar. 22, 1974]</CITA> </SECTION> <SECTION> <SECTNO>§ 9.9</SECTNO> <SUBJECT>Report.</SUBJECT> <P>A report will be made and published in the <E T="04">Federal Register</E> upon the disposition of each request, application or motion under § 9.3. Copies of the report will be available at the Office of the <PRTPAGE P="184"/>Assistant Secretary (Enforcement, Operations, and Tariff Affairs), Department of the Treasury.</P> <CITA>[40 FR 50718, Oct. 31, 1975]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 10</EAR> <HD SOURCE="HED">PART 10—PRACTICE BEFORE THE INTERNAL REVENUE SERVICE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>10.0</SECTNO> <SUBJECT>Scope of part.</SUBJECT> <SUBPART> <HD SOURCE="HED">Subpart A—Rules Governing Authority to Practice</HD> <SECTNO>10.1</SECTNO> <SUBJECT>Director of Practice.</SUBJECT> <SECTNO>10.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>10.3</SECTNO> <SUBJECT>Who may practice.</SUBJECT> <SECTNO>10.4</SECTNO> <SUBJECT>Eligibility for enrollment.</SUBJECT> <SECTNO>10.5</SECTNO> <SUBJECT>Application for enrollment.</SUBJECT> <SECTNO>10.6</SECTNO> <SUBJECT>Enrollment.</SUBJECT> <SECTNO>10.7</SECTNO> <SUBJECT>Representing oneself; participating in rulemaking; limited practice; special appearances; and return preparation.</SUBJECT> <SECTNO>10.8</SECTNO> <SUBJECT>Customhouse brokers.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Duties and Restrictions Relating to Practice Before the Internal Revenue Service</HD> <SECTNO>10.20</SECTNO> <SUBJECT>Information to be furnished.</SUBJECT> <SECTNO>10.21</SECTNO> <SUBJECT>Knowledge of client's omission.</SUBJECT> <SECTNO>10.22</SECTNO> <SUBJECT>Diligence as to accuracy.</SUBJECT> <SECTNO>10.23</SECTNO> <SUBJECT>Prompt disposition of pending matters.</SUBJECT> <SECTNO>10.24</SECTNO> <SUBJECT>Assistance from disbarred or suspended persons and former Internal Revenue Service employees.</SUBJECT> <SECTNO>10.25</SECTNO> <SUBJECT>Practice by partners of Government employees.</SUBJECT> <SECTNO>10.26</SECTNO> <SUBJECT>Practice by former Government employees, their partners and their associates.</SUBJECT> <SECTNO>10.27</SECTNO> <SUBJECT>Notaries.</SUBJECT> <SECTNO>10.28</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>10.29</SECTNO> <SUBJECT>Conflicting interests.</SUBJECT> <SECTNO>10.30</SECTNO> <SUBJECT>Solicitation.</SUBJECT> <SECTNO>10.31</SECTNO> <SUBJECT>Negotiation of taxpayer refund checks.</SUBJECT> <SECTNO>10.32</SECTNO> <SUBJECT>Practice of law.</SUBJECT> <SECTNO>10.33</SECTNO> <SUBJECT>Tax shelter opinions.</SUBJECT> <SECTNO>10.34</SECTNO> <SUBJECT>Standards for advising with respect to tax return positions and for preparing or signing returns.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Rules Applicable to Disciplinary Proceedings</HD> <SECTNO>10.50</SECTNO> <SUBJECT>Authority to disbar or suspend.</SUBJECT> <SECTNO>10.51</SECTNO> <SUBJECT>Disreputable conduct.</SUBJECT> <SECTNO>10.52</SECTNO> <SUBJECT>Violation of regulations.</SUBJECT> <SECTNO>10.53</SECTNO> <SUBJECT>Receipt of information concerning attorney, certified public accountant, enrolled agent, or enrolled actuary.</SUBJECT> <SECTNO>10.54</SECTNO> <SUBJECT>Institution of proceeding.</SUBJECT> <SECTNO>10.55</SECTNO> <SUBJECT>Conferences.</SUBJECT> <SECTNO>10.56</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <SECTNO>10.57</SECTNO> <SUBJECT>Service of complaint and other papers.</SUBJECT> <SECTNO>10.58</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>10.59</SECTNO> <SUBJECT>Supplemental charges.</SUBJECT> <SECTNO>10.60</SECTNO> <SUBJECT>Reply to answer.</SUBJECT> <SECTNO>10.61</SECTNO> <SUBJECT>Proof; variance; amendment of pleadings.</SUBJECT> <SECTNO>10.62</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <SECTNO>10.63</SECTNO> <SUBJECT>Representation.</SUBJECT> <SECTNO>10.64</SECTNO> <SUBJECT>Administrative Law Judge.</SUBJECT> <SECTNO>10.65</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>10.66</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>10.67</SECTNO> <SUBJECT>Depositions.</SUBJECT> <SECTNO>10.68</SECTNO> <SUBJECT>Transcript.</SUBJECT> <SECTNO>10.69</SECTNO> <SUBJECT>Proposed findings and conclusions.</SUBJECT> <SECTNO>10.70</SECTNO> <SUBJECT>Decision of the Administrative Law Judge.</SUBJECT> <SECTNO>10.71</SECTNO> <SUBJECT>Appeal to the Secretary.</SUBJECT> <SECTNO>10.72</SECTNO> <SUBJECT>Decision of the Secretary.</SUBJECT> <SECTNO>10.73</SECTNO> <SUBJECT>Effect of disbarment or suspension; surrender of card.</SUBJECT> <SECTNO>10.74</SECTNO> <SUBJECT>Notice of disbarment or suspension.</SUBJECT> <SECTNO>10.75</SECTNO> <SUBJECT>Petition for reinstatement.</SUBJECT> <SECTNO>10.76</SECTNO> <SUBJECT>Expedited suspension upon criminal conviction or loss of license for cause.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Rules Applicable to Disqualification of Appraisers</HD> <SECTNO>10.77</SECTNO> <SUBJECT>Authority to disqualify; effect of disqualification.</SUBJECT> <SECTNO>10.78</SECTNO> <SUBJECT>Institution of proceeding.</SUBJECT> <SECTNO>10.79</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <SECTNO>10.80</SECTNO> <SUBJECT>Service of complaint and other papers.</SUBJECT> <SECTNO>10.81</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>10.82</SECTNO> <SUBJECT>Supplemental charges.</SUBJECT> <SECTNO>10.83</SECTNO> <SUBJECT>Reply to answer.</SUBJECT> <SECTNO>10.84</SECTNO> <SUBJECT>Proof, variance, amendment of pleadings.</SUBJECT> <SECTNO>10.85</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <SECTNO>10.86</SECTNO> <SUBJECT>Representation.</SUBJECT> <SECTNO>10.87</SECTNO> <SUBJECT>Administrative Law Judge.</SUBJECT> <SECTNO>10.88</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>10.89</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>10.90</SECTNO> <SUBJECT>Depositions.</SUBJECT> <SECTNO>10.91</SECTNO> <SUBJECT>Transcript.</SUBJECT> <SECTNO>10.92</SECTNO> <SUBJECT>Proposed findings and conclusions.</SUBJECT> <SECTNO>10.93</SECTNO> <SUBJECT>Decision of the Administrative Law Judge.</SUBJECT> <SECTNO>10.94</SECTNO> <SUBJECT>Appeal to the Secretary.</SUBJECT> <SECTNO>10.95</SECTNO> <SUBJECT>Decision of the Secretary.</SUBJECT> <SECTNO>10.96</SECTNO> <SUBJECT>Final order.</SUBJECT> <SECTNO>10.97</SECTNO> <SUBJECT>Petition for reinstatement.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—General Provisions</HD> <SECTNO>10.98</SECTNO> <SUBJECT>Records.</SUBJECT> <SECTNO>10.100</SECTNO> <SUBJECT>Saving clause.</SUBJECT> <SECTNO>10.101</SECTNO> <SUBJECT>Special orders.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 <E T="03">et seq.</E>; 5 U.S.C. 301, 500, 551-559, 31 U.S.C. 1026; Reorg. Plan No. 26 of 1950, 15 FR 4935, 64 Stat. 1280, 3 CFR, 1949-1953 Comp., p. 1017.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Department Circular 230, Revised, 31 FR 10773, Aug. 13, 1966, unless otherwise noted.</P> </SOURCE> <EDNOTE> <PRTPAGE P="185"/> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes affecting this part appear at 57 FR 41095, Sept. 9, 1992.</P> </EDNOTE> <SECTION> <SECTNO>§ 10.0</SECTNO> <SUBJECT>Scope of part.</SUBJECT> <P>This part contains rules governing the recognition of attorneys, certified public accountants, enrolled agents, and other persons representing clients before the Internal Revenue Service. Subpart A of this part sets forth rules relating to authority to practice before the Internal Revenue Service; subpart B of this part prescribes the duties and restrictions relating to such practice; subpart C of this part contains rules relating to disciplinary proceedings; subpart D of this part contains rules applicable to disqualification of appraisers; and Subpart E of this part contains general provisions, including provisions relating to the availability of official records.</P> <CITA>[59 FR 31526, June 20, 1994]</CITA> </SECTION> <SUBPART> <HD SOURCE="HED">Subpart A—Rules Governing Authority To Practice</HD> <SECTION> <SECTNO>§ 10.1</SECTNO> <SUBJECT>Director of Practice.</SUBJECT> <P>(a) <E T="03">Establishment of office.</E> There is established in the Office of the Secretary of the Treasury the office of Director of Practice. The Director of Practice shall be appointed by the Secretary of the Treasury.</P> <P>(b) <E T="03">Duties.</E> The Director of Practice shall act upon applications for enrollment to practice before the Internal Revenue Service; institute and provide for the conduct of disciplinary proceedings relating to attorneys, certified public accountants, enrolled agents, enrolled actuaries and appraisers; make inquiries with respect to matters under his jurisdiction; and perform such other duties as are necessary or appropriate to carry out his functions under this part or as are prescribed by the Secretary of the Treasury.</P> <P>(c) <E T="03">Acting Director</E>. The Secretary of the Treasury will designate an officer or employee of the Treasury Department to act as Director of Practice in the event of the absence of the director or of a vacancy in that office.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 51 FR 2878, Jan. 22, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part, except where the context clearly indicates otherwise:</P> <P>(a) <E T="03">Attorney</E> means any 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.</P> <P>(b) <E T="03">Certified Public Accountant</E> means any person who is duly qualified to practice as a certified public accountant in any State, possession, territory, Commonwealth, or the District of Columbia.</P> <P>(c) <E T="03">Commissioner</E> refers to the Commissioner of Internal Revenue.</P> <P>(d) <E T="03">Director</E> refers to the Director of Practice.</P> <P>(e) <E T="03">Practice before the Internal Revenue Service</E> comprehends all matters connected with a presentation to the Internal Revenue Service or any of its officers or employees relating to a client's rights, privileges, or liabilities under laws or regulations administered by the Internal Revenue Service. Such presentations include preparing and filing necessary documents, corresponding and communicating with the Internal Revenue Service, and representing a client at conferences, hearings, and meetings.</P> <P>(f) <E T="03">Practitioner</E> means any individual described in § 10.3 (a), (b), (c), or (d) of this part.</P> <P>(g) A <E T="03">return</E> includes an amended return and a claim for refund.</P> <P>(h) <E T="03">Service</E> means the Internal Revenue Service.</P> <CITA>[59 FR 31526, June 20, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.3</SECTNO> <SUBJECT>Who may practice.</SUBJECT> <P>(a) <E T="03">Attorneys.</E> Any attorney who is not currently under suspension or disbarment from practice before the Internal Revenue Service may practice before the Service upon filing with the Service a written declaration 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.</P> <P>(b) <E T="03">Certified public accountants.</E> Any certified public accountant who is not currently under suspension or disbarment from practice before the Internal Revenue Service may practice before <PRTPAGE P="186"/>the Service upon filing with the Service a written declaration 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.</P> <P>(c) <E T="03">Enrolled agents.</E> Any person enrolled as an agent pursuant to this part may practice before the Internal Revenue Service.</P> <P>(d) <E T="03">Enrolled Actuaries.</E> (1) Any individual who is enrolled as an actuary by the Joint Board for the Enrollment of Actuaries pursuant to 29 U.S.C. 1242 may practice before the Internal Revenue Service upon filing with the Service a written declaration that he/she is currently qualified as an enrolled actuary and is authorized to represent the particular party on whose behalf he/she acts. Practice as an enrolled actuary is limited to representation with respect to issues involving the following statuatory provisions. Internal Revenue Code (Title 26 U.S.C.) sections: 401 (qualification of employee plans), 403(a) (relating to whether an annuity plan meets the requirements of section 404(a)(2)), 404 (deductibility of employer contributions), 405 (qualification of bond purchase plans), 412 (funding requirements for certain employee plans), 413 (application of qualification requirements to collectively bargained plans and to plans maintained by more than one employer), 414 (containing definitions and special rules relating to the employee plan area), 4971 (relating to excise taxes payable as a result of an accumulated funding deficiency under section 412), 6057 (annual registration of plans), 6058 (information required in connection with certain plans of deferred compensation), 6059 (periodic report of actuary), 6652(e) (failure to file annual regustration and other notifications by pension plan), 6652(f) (failure to file information required in connection with certain plans of deferred compensation), 6692 (failure to file acuarial report), 7805(b) (relating to the extent, if any, to which an Internal Revenue Service ruling or determination letter coming under the herein listed statutory provisions shall be applied without retroactive effect); and 29 U.S.C. 1083 (relating to waiver of funding for nonqualified plans).</P> <P>(2) An individual who practices before the Internal Revenue Service pursuant to this subsection shall be subject to the provisions of this part in the same manner as attorneys, certified public accountants and enrolled agents.</P> <P>(e) <E T="03">Others.</E> Any individual qualifying under § 10.5(c) or § 10.7 is eligible to practice before the Internal Revenue Service to the extent provided in those sections.</P> <P>(f) <E T="03">Government officers and employees, and others.</E> An individual, including an officer or employee of the executive, legislative, or judicial branch of the United States Government; officer or employee of the District of Columbia; Member of Congress; or Resident Commissioner, may not practice before the Service if such practice would violate 18 U.S.C. 203 or 205.</P> <P>(g) <E T="03">State officers and employees.</E> No officer or employee of any State, or subdivision thereof, whose duties require him to pass upon, investigate, or deal with tax matters of such State or subdivision, may practice before the Service, if such State employment may disclose facts or information applicable to Federal tax matters.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13205, Aug. 19, 1970; 36 FR 8671, May 11, 1971; 44 FR 4946, Jan. 24, 1979; 59 FR 31526, June 20, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.4</SECTNO> <SUBJECT>Eligibility for enrollment.</SUBJECT> <P>(a) <E T="03">Enrollment upon examination.</E> The Director of Practice may grant enrollment to an applicant who demonstrates special competence in tax matters by written examination administered by the Internal Revenue Service and who has not engaged in any conduct which would justify the suspension or disbarment of any attorney, certified public accountant, or enrolled agent under the provisions of this part.</P> <P>(b) <E T="03">Enrollment of former Internal Revenue Service employees.</E> The Director of Practice may grant enrollment to an applicant who has not engaged in any conduct which would justify the suspension or disbarment of any attorney, certified public accountant, or enrolled agent under the provisions of this part and who, by virtue of his past service <PRTPAGE P="187"/>and technical experience in the Internal Revenue Service has qualified for such enrollment, as follows:</P> <P>(1) Application for enrollment on account of former employment in the Internal Revenue Service shall be made to the Director of Practice. Each applicant will be supplied a form by the Director of Practice, which shall indicate the information required respecting the applicant's qualifications. In addition to the applicant's name, address, citizenship, age, educational experience, etc., such information shall specifically include a detailed ascount of the applicant's employment in the Internal Revenue Service, which account shall show (i) positions held, (ii) date of each appointment and termination thereof, (iii) nature of services rendered in each position, with particular reference to the degree of technical experience involved, and (iv) name of supervisor in such positions, together with such other information regarding the experience and training of the applicant as may be relevant.</P> <P>(2) Upon receipt of each such application, it shall be transmitted to the appropriate officer of the Internal Revenue Service with the request that a detailed report of the nature and rating of the applicant's services in the Internal Revenue Service, accompanied by the recommendation of the superior officer in the particular unit or division of the Internal Revenue Service that such employment does or does not qualify the applicant technically or otherwise for the desired authorization, be furnished to the Director of Practice.</P> <P>(3) In examining the qualification of an applicant for enrollment on account of employment in the Internal Revenue Service, the Director of Practice will be governed by the following policies:</P> <P>(i) Enrollment on account of such employment may be of unlimited scope or may be limited to permit the presentation of matters only of the particular class or only before the particular unit or division of the Internal Revenue Service for which his former employment in the Internal Revenue Service has qualified the applicant.</P> <P>(ii) Application for enrollment on account of employment in the Internal Revenue Service must be made within 3 years from the date of separation from such employment.</P> <P>(iii) It shall be requisite for enrollment on account of such employment that the applicant shall have had a minimum of 5 years continuous employment in the Service during which he shall have been regularly engaged in applying and interpreting the provisions of the Internal Revenue Code and the regulations thereunder relating to income, estate, gift, employment, or excise taxes.</P> <P>(iv) For the purposes of paragraph (b)(3)(iii) of this section an aggregate of 10 or more years of employment, at least 3 of which occurred within the 5 years preceding the date of application, shall be deemed the equivalent of 5 years continuous employment.</P> <P>(c) <E T="03">Natural persons.</E> Enrollment to practice may be granted only to natural persons.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13205, Aug. 19, 1970; 42 FR 38352, July 28, 1977; 51 FR 2878, Jan. 22, 1986; 59 FR 31526, June 20, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.5</SECTNO> <SUBJECT>Application for enrollment.</SUBJECT> <P>(a) <E T="03">Form; fee.</E> An applicant for enrollment shall file with the Director of Practice of Internal Revenue an application on Form 23, properly executed under oath or affirmation. Such application shall be accompanied by a check or money order in the amount set forth on Form 23, payable to the Internal Revenue Service, which amount shall constitute a fee which shall be charged to each applicant for enrollment. The fee shall be retained by the United States whether or not the applicant is granted enrollment.</P> <P>(b) <E T="03">Additional information; examination.</E> The Director of Practice, as a condition to consideration of an application for enrollment, may require the applicant to file additional information and to submit to any written or oral examination under oath or otherwise. The Director of Practice shall, upon written request, afford an applicant the opportunity to be heard with respect to his application for enrollment.</P> <P>(c) <E T="03">Temporary recognition.</E> Upon receipt of a properly executed application, the Director of Practice may <PRTPAGE P="188"/>grant the applicant temporary recognition to practice pending a determination as to whether enrollment to practice should be granted. Such temporary recognition shall not be granted if the application is not regular on its face; if the information stated therein, if true, is not sufficient to warrant enrollment to practice; if there is any information before the Director of Practice which indicates that the statements in the application are untrue; or which indicates that the applicant would not otherwise qualify for enrollment. Issuance of temporary recognition shall not constitute enrollment to practice or a finding of eligibility for enrollment, and the temporary recognition may be withdrawn at any time by the Director of Practice.</P> <P>(d) <E T="03">Appeal from denial of application.</E> The Director of Practice, in denying an application for enrollment, shall inform the applicant as to the reason(s) therefor. The applicant may, within 30 days after receipt of the notice of denial, file a written appeal therefrom, together with his/her reasons in support thereof, to the Secretary of the Treasury. A decision on the appeal will be rendered by the Secretary of the Treasury as soon as practicable.</P> <APPRO>(Sec. 501, Pub. L. 82-137, 65 Stat. 290; 31 U.S.C. 483a) </APPRO> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38352, July 28, 1977; 51 FR 2878 Jan. 22, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.6</SECTNO> <SUBJECT>Enrollment.</SUBJECT> <P>(a) <E T="03">Roster.</E> The Director of Practice shall maintain rosters of all individuals:</P> <P>(1) Who have been granted active enrollment to practice before the Internal Revenue Service;</P> <P>(2) Whose enrollment has been placed in an inactive status for failure to meet the requirements for renewal of enrollment;</P> <P>(3) Whose enrollment has been placed in an inactive retirement status;</P> <P>(4) Who have been disbarred or suspended from practice before the Internal Revenue Service;</P> <P>(5) Whose offer of consent to resignation from enrollment to practice before the Internal Revenue Service has been accepted by the Director of Practice under § 10.55 of this part; and</P> <P>(6) Whose application for enrollment has been denied.</P> <P>(b) <E T="03">Enrollment card.</E> The Director of Practice will issue an enrollment card to each individual whose application for enrollment to practice before the Internal Revenue Service is approved after the effective date of this regulation. Each such enrollment card will be valid for the period stated thereon. Enrollment cards issued individuals before February 1, 1987 shall become invalid after March 31, 1987. An individual having an invalid enrollment card is not eligible to practice before the Internal Revenue Service.</P> <P>(c) <E T="03">Term of enrollment.</E> Active enrollment to practice before the Internal Revenue Service is accorded each individual enrolled, so long as renewal of enrollment is effected as provided in this part.</P> <P>(d) <E T="03">Renewal of enrollment.</E> To maintain active enrollment to practice before the Internal Revenue Service, each individual enrolled is required to have his/her enrollment renewed as set forth herein. Failure by an individual to receive notification from the Director of Practice of the renewal requirement will not be justification for circumvention of such requirement.</P> <P>(1) All individuals enrolled to practice before the Internal Revenue Service before November 1, 1986 shall apply for renewal of enrollment during the period between November 1, 1986 and January 31, 1987. Those who receive initial enrollment between November 1, 1986 and January 31, 1987 shall apply for renewal of enrollment by March 1, 1987. The first effective date of renewal will be April 1, 1987.</P> <P>(2) Thereafter, applications for renewal will be required between November 1, 1989 and January 31, 1990, and between November 1 and January 31 of every third year subsequent thereto. Those who receive initial enrollment during the renewal application period shall apply for renewal of enrollment by March 1 of the renewal year. The effective date of renewed enrollment will be April 1, 1990, and April 1 of every third year subsequent thereto.</P> <P>(3) The Director of Practice will notify the individual of renewal of enrollment and will issue a card evidencing such renewal.<PRTPAGE P="189"/> </P> <P>(4) A reasonable nonrefundable fee may be charged for each application for renewal of enrollment filed with the Director of Practice.</P> <P>(5) Forms required for renewal may be obtained from the Director of Practice, Internal Revenue Service, Washington, DC 20224.</P> <P>(e) <E T="03">Condition for renewal: Continuing Professional Education.</E> In order to qualify for renewal of enrollment, an individual enrolled to practice before the Internal Revenue Service must certify, on the application for renewal form prescribed by the Director of Practice, that he/she has satisfied the following continuing professional education requirements.</P> <P>(1) <E T="03">For renewed enrollment effective April 1, 1987.</E> (i) A minimum of 24 hours of continuing education credit must be completed between January 1, 1986 and January 31, 1987.</P> <P>(ii) An individual who receives initial enrollment between January 1, 1986 and January 31, 1987 is exempt from the continuing education requirement for the renewal of enrollment effective April 1, 1987, but is required to file a timely application for renewal of enrollment.</P> <P>(2) <E T="03">For renewed enrollment effective April 1, 1990 and every third year thereafter.</E> (i) A minimum of 72 hours of continuing education credit must be completed between February 1, 1987 and January 31, 1990, and during each three year period subsequent thereto. Each such three year period is known as an enrollment cycle.</P> <P>(ii) A minimum of 16 hours of continuing education credit must be completed in each year of an enrollment cycle.</P> <P>(iii) An individual who receives initial enrollment during an enrollment cycle must complete two (2) hours of qualifying continuing education credit for each month enrolled during such enrollment cycle. Enrollment for any part of a month is considered enrollment for the entire month.</P> <P>(f) <E T="03">Qualifying continuing education—</E>(1) <E T="03">General.</E> To qualify for continuing education credit, a course of learning must:</P> <P>(i) Be a qualifying program designed to enhance the professional knowledge of an individual in Federal taxation or Federal tax related matters, i.e. programs comprised of current subject matter in Federal taxation or Federal tax related matters to include accounting, financial management, business computer science and taxation; and</P> <P>(ii) Be conducted by a qualifying sponsor.</P> <P>(2) <E T="03">Qualifying programs</E>—(i) <E T="03">Formal programs.</E> Formal programs qualify as continuing education programs if they:</P> <P>(A) Require attendance;</P> <P>(B) Require that the program be conducted by a qualified instructor, discussion leader or speaker, i.e. a person whose background, training, education and/or experience is appropriate for instructing or leading a discussion on the subject matter of the particular program; and</P> <P>(C) Require a written outline and/or textbook and certificate of attendance provided by the sponsor, all of which must be retained by the attendee for a three year period following renewal of enrollment.</P> <P>(ii) <E T="03">Correspondence or individual study programs (including taped programs).</E> Qualifying continuing education programs include correspondence or individual study programs completed on an individual basis by the enrolled individual and conducted by qualifying sponsors. The allowable credit hours for such programs will be measured on a basis comparable to the measurement of a seminar or course for credit in an accredited educational institution. Such programs qualify as continuing education programs if they:</P> <P>(A) Require registration of the participants by the sponsor;</P> <P>(B) Provide a means for measuring completion by the participants (e.g., written examination); and</P> <P>(C) Require a written outline and/or textbook and certificate of completion provided by the sponsor which must be retained by the participant for a three year period following renewal of enrollment.</P> <P>(iii) <E T="03">Serving as an instructor, discussion leader or speaker.</E> </P> <P>(A) One hour of continuing education credit will be awarded for each contact <PRTPAGE P="190"/>hour completed as an instructor, discussion leader or speaker at an educational program which meets the continuing education requirements of this part.</P> <P>(B) Two hours of continuing education credit will be awarded for actual subject preparation time for each contact hour completed as an instructor, discussion leader or speaker at such programs. It will be the responsibility of the individual claiming such credit to maintain records to verify preparation time.</P> <P>(C) The maximum credit for instruction and preparation may not exceed 50% of the continuing education requirement for an enrollment cycle.</P> <P>(D) Presentation of the same subject matter in an instructor, discussion leader or speaker capacity more than one time during an enrollment cycle will not qualify for continuing education credit.</P> <P>(iv) <E T="03">Credit for published articles, books, etc.</E> </P> <P>(A) Continuing education credit will be awarded for publications on Federal taxation or Federal tax related matters to include accounting, financial management, business computer science, and taxation, provided the content of such publications is current and designed for the enhancement of the professional knowledge of an individual enrolled to practice before the Internal Revenue Service.</P> <P>(B) The credit allowed will be on the basis of one hour credit for each hour of preparation time for the material. It will be the responsibility of the person claiming the credit to maintain records to verify preparation time.</P> <P>(C) The maximum credit for publications may not exceed 25% of the continuing education requirement of any enrollment cycle.</P> <P>(3) <E T="03">Periodic examination.</E> Individuals may establish eligibility for renewal of enrollment for any enrollment cycle by:</P> <P>(i) Achieving a passing score on each part of the Special Enrollment Examination administered under this part during the three year period prior to renewal; and</P> <P>(ii) Completing a minimum of 16 hours of qualifying continuing education during the last year of an enrollment cycle.</P> <P>(g) <E T="03">Sponsors.</E> (1) Sponsors are those responsible for presenting programs.</P> <P>(2) To qualify as a sponsor, a program presenter must:</P> <P>(i) Be an accredited educational institution;</P> <P>(ii) Be recognized for continuing education purposes by the licensing body of any State, possession, territory, Commonwealth, or the District of Columbia responsible for the issuance of a license in the field of accounting or law;</P> <P>(iii) Be recognized by the Director of Practice as a professional organization or society whose programs include offering continuing professional education opportunities in subject matter within the scope of this part; or</P> <P>(iv) File a sponsor agreement with the Director of Practice to obtain approval of the program as a qualified continuing education program.</P> <P>(3) A qualifying sponsor must ensure the program complies with the following requirements:</P> <P>(i) Programs must be developed by individual(s) qualified in the subject matter;</P> <P>(ii) Program subject matter must be current;</P> <P>(iii) Instructors, discussion leaders, and speakers must be qualified with respect to program content;</P> <P>(iv) Programs must include some means for evaluation of technical content and presentation;</P> <P>(v) Certificates of completion must be provided those who have successfully completed the program; and</P> <P>(vi) Records must be maintained by the sponsor to verify completion of the program and attendance by each participant. Such records must be retained for a period of three years following completion of the program. In the case of continuous conferences, conventions, and the like, records must be maintained to verify completion of the program and attendance by each participant at each segment of the program.</P> <P>(4) Professional organizations or societies wishing to be considered as qualified sponsors shall request such status of the Director of Practice and furnish information in support of the request <PRTPAGE P="191"/>together with any further information deemed necessary by the Director of Practice.</P> <P>(5) Sponsor agreements and qualified professional organization or society sponsors approved by the Director of Practice shall remain in effect for one enrollment cycle. The names of such sponsors will be published on a periodic basis.</P> <P>(h) <E T="03">Measurement of continuing education coursework.</E> (1) All continuing education programs will be measured in terms of contact hours. The shortest recognized program will be one contact hour.</P> <P>(2) A contact hour is 50 minutes of continuous participation in a program. Credit is granted only for a full contact hour, i.e. 50 minutes or multiples thereof. For example, a program lasting more than 50 minutes but less than 100 minutes will count as one contact hour.</P> <P>(3) Individual segments at continuous conferences, conventions and the like will be considered one total program. For example, two 90-minute segments (180 minutes) at a continuous conference will count as three contact hours.</P> <P>(4) For university or college courses, each semester hour credit will equal 15 contact hours and a quarter hour credit will equal 10 contact hours.</P> <P>(i) <E T="03">Recordkeeping requirements.</E> (1) Each individual applying for renewal shall retain for a period of three years following the date of renewal of enrollment the information required with regard to qualifying continuing professional education credit hours. Such information shall include:</P> <P>(i) The name of the sponsoring organization;</P> <P>(ii) The location of the program;</P> <P>(iii) The title of the program and description of its content e.g., course syllibi and/or textbook;</P> <P>(iv) The dates attended;</P> <P>(v) The credit hours claimed;</P> <P>(vi) The name(s) of the instructor(s), discussion leader(s), or speaker(s), if appropriate; and</P> <P>(vii) The certificate of completion and/or signed statement of the hours of attendance obtained from the sponsor.</P> <P>(2) To receive continuing education credit for service completed as an instructor, discussion leader, or speaker, the following information must be maintained for a period of three years following the date of renewal of enrollment:</P> <P>(i) The name of the sponsoring organization;</P> <P>(ii) The location of the program;</P> <P>(iii) The title of the program and description of its content;</P> <P>(iv) The dates of the program; and</P> <P>(v) The credit hours claimed.</P> <P>(3) To receive continuing education credit for publications, the following information must be maintained for a period of three years following the date of renewal of enrollment:</P> <P>(i) The publisher;</P> <P>(ii) The title of the publication;</P> <P>(iii) A copy of the publication; and</P> <P>(iv) The date of publication.</P> <P>(j) <E T="03">Waivers.</E> (1) Waiver from the continuing education requirements for a given period may be granted by the Director of Practice for the following reasons:</P> <P>(i) Health, which prevented compliance with the continuing education requirements;</P> <P>(ii) Extended active military duty;</P> <P>(iii) Absence from the United States for an extended period of time due to employment or other reasons, provided the individual does not practice before the Internal Revenue Service during such absence; and</P> <P>(iv) Other compelling reasons, which will be considered on a case-by-case basis.</P> <P>(2) A request for waiver must be accompanied by appropriate documentation. The individual will be required to furnish any additional documentation or explanation deemed necessary by the Director of Practice. Examples of appropriate documentation could be a medical certificate, military orders, etc.</P> <P>(3) A request for waiver must be filed no later than the last day of the renewal application period.</P> <P>(4) If a request for waiver is not approved, the individual will be so notified by the Director of Practice and placed on a roster of inactive enrolled individuals.</P> <P>(5) If a request for waiver is approved, the individual will be so notified and issued a card evidencing such renewal.<PRTPAGE P="192"/> </P> <P>(6) Those who are granted waivers are required to file timely applications for renewal of enrollment.</P> <P>(k) <E T="03">Failure to comply.</E> (1) Compliance by an individual with the requirements of this part shall be determined by the Director of Practice. An individual who fails to meet the requirements of eligibility for renewal of enrollment will be notified by the Director of Practice at his/her last known address by first class mail. The notice will state the basis for the non-compliance and will provide the individual an opportunity to furnish in writing information relating to the matter within 60 days of the date of the notice. Such information will be considered by the Director of Practice in making a final determination as to eligibility for renewal of enrollment.</P> <P>(2) The Director of Practice may require any individual, by first class mail to his/her last known mailing address, to provide copies of any records required to be maintained under this part. The Director of Practice may disallow any continuing professional education hours claimed if the individual concerned fails to comply with such requirement.</P> <P>(3) An individual who has not filed a timely application for renewal of enrollment, who has not made a timely response to the notice of non-compliance with the renewal requirements, or who has not satisfied the requirements of eligibility for renewal will be placed on a roster of inactive enrolled individuals for a period of three years. During this time, the individual will be ineligible to practice before the Internal Revenue Service.</P> <P>(4) During inactive enrollment status or at any other time an individual is ineligible to practice before the Internal Revenue Service, such individual shall not in any manner, directly or indirectly, indicate he or she is enrolled to practice before the Internal Revenue Service, or use the term “enrolled agent,” the designation “E. A.,” or other form of reference to eligibility to practice before the Internal Revenue Service.</P> <P>(5) An individual placed in an inactive status may satisfy the requirements for renewal of enrollment during his/her period of inactive enrollment. If such satisfaction includes completing the continuing education requirement, a minimum of 16 hours of qualifying continuing education hours must be completed in the 12 month period preceding the date on which the renewal application is filed. Continuing education credit under this subsection may not be used to satisfy the requirements of the enrollment cycle in which the individual has been placed back on the active roster.</P> <P>(6) An individual placed in an inactive status must file an application for renewal of enrollment and satisfy the requirements for renewal as set forth in this section within three years of being placed in an inactive status. The name of such individual otherwise will be removed from the inactive enrollment roster and his/her enrollment will terminate. Eligibility for enrollment must then be reestablished by the individual as provided in this part.</P> <P>(7) Inactive enrollment status is not available to an individual who is the subject of a discipline matter in the Office of Director of Practice.</P> <P>(l) <E T="03">Inactive retirement status.</E> An individual who no longer practices before the Internal Revenue Service may request being placed in an inactive status at any time and such individual will be placed in an inactive retirement status. The individual will be ineligible to practice before the Internal Revenue Service. Such individual must file a timely application for renewal of enrollment at each applicable renewal or enrollment as provided in this part. An individual who is placed in an inactive retirement status may be reinstated to an active enrollment status upon filing an application for renewal of enrollment and providing evidence of the completion of the required continuing professional education hours for the enrollment cycle. Inactive retirement status is not available to an individual who is the subject to a discipline matter in the Office of Director of Practice.</P> <P>(m) <E T="03">Renewal while under suspension or disbarment.</E> An individual who is ineligible to practice before the Internal Revenue Service by virtue of disciplinary action is required to meet the requirements for renewal of enrollment during the period of ineligibility.<PRTPAGE P="193"/> </P> <P>(n) <E T="03">Verification.</E> The Director of Practice may review the continuing education records of an enrolled individual and/or qualified sponsor in a manner deemed appropriate to determine compliance with the requirements and standards for renewal of enrollment as provided in this part.</P> <APPRO>(Approved by the Office of Management and Budget under control number 1545-0946)</APPRO> <CITA>[51 FR 2878, Jan. 22, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.7</SECTNO> <SUBJECT>Representing oneself; participating in rulemaking; limited practice; special appearances; and return preparation.</SUBJECT> <P>(a) <E T="03">Representing oneself.</E> Individuals may appear on their own behalf before the Internal Revenue Service provided they present satisfactory identification.</P> <P>(b) <E T="03">Participating in rulemaking.</E> Individuals may participate in rulemaking as provided by the Administrative Procedure Act. See 5 U.S.C. 553.</P> <P>(c) <E T="03">Limited practice</E>—(1) <E T="03">In general.</E> Subject to the limitations in paragraph (c)(2) of this section, an individual who is not a practitioner may represent a taxpayer before the Internal Revenue Service in the circumstances described in this paragraph (c)(1), even if the taxpayer is not present, provided the individual presents satisfactory identification and proof of his or her authority to represent the taxpayer. The circumstances described in this paragraph (c)(1) are as follows:</P> <P>(i) An individual may represent a member of his or her immediate family.</P> <P>(ii) A regular full-time employee of an individual employer may represent the employer.</P> <P>(iii) A general partner or a regular full-time employee of a partnership may represent the partnership.</P> <P>(iv) A bona fide officer or a regular full-time employee of a corporation (including a parent, subsidiary, or other affiliated corporation), association, or organized group may represent the corporation, association, or organized group.</P> <P>(v) A trustee, receiver, guardian, personal representative, administrator, executor, or regular full-time employee of a trust, receivership, guardianship, or estate may represent the trust, receivership, guardianship, or estate.</P> <P>(vi) An officer or a regular employee of a governmental unit, agency, or authority may represent the governmental unit, agency, or authority in the course of his or her official duties.</P> <P>(vii) An individual may represent any individual or entity before personnel of the Internal Revenue Service who are outside of the United States.</P> <P>(viii) An individual who prepares and signs a taxpayer's return as the preparer, or who prepares a return but is not required (by the instructions to the return or regulations) to sign the return, may represent the taxpayer before officers and employees of the Examination Division of the Internal Revenue Service with respect to the tax liability of the taxpayer for the taxable year or period covered by that return.</P> <P>(2) <E T="03">Limitations.</E> (i) An individual who is under suspension or disbarment from practice before the Internal Revenue Service may not engage in limited practice before the Service under § 10.7(c)(1).</P> <P>(ii) The Director, after notice and opportunity for a conference, may deny eligibility to engage in limited practice before the Internal Revenue Service under § 10.7(c)(1) to any individual who has engaged in conduct that would justify suspending or disbarring a practitioner from practice before the Service.</P> <P>(iii) An individual who represents a taxpayer under the authority of § 10.7(c)(1)(viii) is subject to such rules of general applicability regarding standards of conduct, the extent of his or her authority, and other matters as the Director prescribes.</P> <P>(d) <E T="03">Special appearances.</E> The Director, subject to such conditions as he or she deems appropriate, may authorize an individual who is not otherwise eligible to practice before the Service to represent another person in a particular matter.</P> <P>(e) <E T="03">Preparing tax returns and furnishing information.</E> An individual may prepare a tax return, appear as a witness for the taxpayer before the Internal Revenue Service, or furnish information at the request of the Service or any of its officers or employees.</P> <CITA>[59 FR 31526, June 20, 1994]</CITA> </SECTION> <SECTION> <PRTPAGE P="194"/> <SECTNO>§ 10.8</SECTNO> <SUBJECT>Customhouse brokers.</SUBJECT> <P>Nothing contained in the regulations in this part shall be deemed to affect or limit the right of a customhouse broker, licensed as such by the Commissioner of Customs in accordance with the regulations prescribed therefor, in any customs district in which he is so licensed, at the office of the District Director of Internal Revenue or before the National Office of the Internal Revenue Service, to act as a representative in respect to any matters relating specifically to the importation or exportation of merchandise under the customs or internal revenue laws, for any person for whom he has acted as a customhouse broker.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Duties and Restrictions Relating to Practice Before the Internal Revenue Service</HD> <SECTION> <SECTNO>§ 10.20</SECTNO> <SUBJECT>Information to be furnished.</SUBJECT> <P>(a) <E T="03">To the Internal Revenue Service.</E> No attorney, certified public accountant, enrolled agent, or enrolled actuary shall neglect or refuse promptly to submit records or information in any matter before the Internal Revenue Service, upon proper and lawful request by a duly authorized officer or employee of the Internal Revenue Service, or shall interfere, or attempt to interfere, with any proper and lawful effort by the Internal Revenue Service or its officers or employees to obtain any such record or information, unless he believes in good faith and on reasonable grounds that such record or information is privileged or that the request for, or effort to obtain, such record or information is of doubtful legality.</P> <P>(b) <E T="03">To the Director of Practice.</E> It shall be the duty of an attorney or certified public accountant, who practices before the Internal Revenue Service, or enrolled agent, when requested by the Director of Practice, to provide the Director with any information he may have concerning violation of the regulations in this part by any person, and to testify thereto in any proceeding instituted under this part for the disbarment or suspension of an attorney, certified public accountant, enrolled agent, or enrolled actuary, unless he believes in good faith and on reasonable grounds that such information is privileged or that the request therefor is of doubtful legality.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.21</SECTNO> <SUBJECT>Knowledge of client's omission.</SUBJECT> <P>Each attorney, certified public accountant, enrolled agent, or enrolled actuary who, having been retained by a client with respect to a matter administered by the Internal Revenue Service, knows that the client has not complied with the revenue laws of the United States or has made an error in or omission from any return, document, affidavit, or other paper which the client is required by the revenue laws of the United States to execute, shall advise the client promptly of the fact of such noncompliance, error, or omission.</P> <CITA>[42 FR 38352, July 28, 1977, as amended at 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.22</SECTNO> <SUBJECT>Diligence as to accuracy.</SUBJECT> <P>Each attorney, certified public accountant, enrolled agent, or enrolled actuary shall exercise due diligence:</P> <P>(a) In preparing or assisting in the preparation of, approving, and filing returns, documents, affidavits, and other papers relating to Internal Revenue Service matters;</P> <P>(b) In determining the correctness of oral or written representations made by him to the Department of the Treasury; and</P> <P>(c) In determining the correctness of oral or written representations made by him to clients with reference to any matter administered by the Internal Revenue Service.</P> <CITA>[35 FR 13205, Aug. 19, 1970, as amended at 42 FR 38352, July 28, 1977; 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.23</SECTNO> <SUBJECT>Prompt disposition of pending matters.</SUBJECT> <P>No attorney, certified public accountant, enrolled agent, or enrolled actuary shall unreasonably delay the prompt disposition of any matter before the Internal Revenue Service.</P> </SECTION> <SECTION> <PRTPAGE P="195"/> <SECTNO>§ 10.24</SECTNO> <SUBJECT>Assistance from disbarred or suspended persons and former Internal Revenue Service employees.</SUBJECT> <P>No attorney, certified public accountant, enrolled agent, or enrolled actuary shall, in practice before the Internal Revenue Service, knowingly and directly or indirectly:</P> <P>(a) Employ or accept assistance from any person who is under disbarment or suspension from practice before the Internal Revenue Service.</P> <P>(b) Accept employment as associate, correspondent, or subagent from, or share fees with, any such person.</P> <P>(c) Accept assistance from any former government employee where the provisions of § 10.26 of these regulations or any Federal law would be violated.</P> <CITA>[44 FR 4943, Jan. 24, 1979, as amended at 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.25</SECTNO> <SUBJECT>Practice by partners of Government employees.</SUBJECT> <P>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, shall represent anyone in any matter administered by the Internal Revenue Service in which such officer or employee of the Government participates or has participated personally and substantially as a Government employee or which is the subject of his official responsibility.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13205, Aug. 19, 1970]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.26</SECTNO> <SUBJECT>Practice by former Government employees, their partners and their associates.</SUBJECT> <P>(a) <E T="03">Definitions.</E> For purposes of § 10.26. (1) <E T="03">Assist</E> means to act in such a way as to advise, furnish information to or otherwise aid another person, directly of indirectly.</P> <P>(2) <E T="03">Government employee</E> is an officer or employee of the United States or any agency of the United States, including a <E T="03">special government employee</E> as defined in 18 U.S.C. 202(a), or of the District of Columbia, or of any State, or a member of Congress or of any State legislature.</P> <P>(3) <E T="03">Member of a firm</E> is a sole practioner or an employee or associate thereof, or a partner, stockholder, associate, affiliate or employee of a partnership, joint venture, corporation, professional association or other affiliation of two or more practitioners who represent non-Government parties.</P> <P>(4) <E T="03">Practitioner</E> includes any individual described in § 10.3(e).</P> <P>(5) <E T="03">Official responsibility</E> means the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government action, with or without knowledge of the action.</P> <P>(6) <E T="03">Participate</E> or <E T="03">participation</E> means substantial involvement as a Government employee by making decisions, or preparing or reviewing documents with or without the right to exercise a judgment of approval or disapproval, or participating in conferences or investigations, or rendering advice of a substantial nature.</P> <P>(7) <E T="03">Rule</E> includes Treasury Regulations, whether issued or under preparation for issuance as Notices of Proposed Rule Making or as Treasury Decisions, and revenue rulings and revenue procedures published in the Internal Revenue bulletin. <E T="03">Rule</E> shall not include a <E T="03">transaction</E> as defined in paragraph (a)(9) of this section.</P> <P>(8) <E T="03">Transaction</E> means any decision, determination, finding, letter ruling, technical advice, contract or approval or disapproval thereof, relating to a particular factual situation or situations involving a specific party or parties whose rights, privileges, or liabilities under laws or regulations administered by the Internal Revenue Service, or other legal rights, are determined or immediately affected therein and to which the United States is a party or in which it has a direct and substantial interest, whether or not the same taxable periods are involved. <E T="03">Transaction</E> does not include <E T="03">rule</E> as defined in paragraph (a)(7) of this section.</P> <P>(b) <E T="03">General rules.</E> (1) No former Government employee shall, subsequent to his Government employment, represent anyone in any matter administered by the Internal Revenue Service if the representation would violate 18 U.S.C. <PRTPAGE P="196"/>207 (a) or (b) of any other laws of the United States.</P> <P>(2) No former Government employee who participated in a transaction shall, subsequent to his Government employment, represent or knowingly assist, in that transaction, any person who is or was a specific party to that transaction.</P> <P>(3) No former Government employee who within a period of one year prior to the termination of his Government employment had official responsibility for a transaction shall, within one year after his Government employment is ended, represent or knowingly assist in that transaction any person who is or was a specific party to that transaction.</P> <P>(4) No former Government employee shall, within one year after his Government employment is ended, appear before any employee of the Treasury Department in connection with the publication, withdrawal, amendment, modification, or interpretation of a rule in the development of which the former Government employee participated or for which, within a period of one year prior to the termination of his Government employment, he had official responsibility. However, this subparagraph does not preclude such former employee for appearing on his own behalf or from representing a taxpayer before the Internal Revenue Service in connection with a transaction involving the application or interpretation of such a rule with respect to that transaction: <E T="03">Provided,</E> That such former employee shall not utilize or disclose any confidential information acquired by the former employee in the development of the rule, and shall not contend that the rule is invalid or illegal. In addition, this subparagraph does not preclude such former employee from otherwise advising or acting for any person.</P> <P>(c) <E T="03">Firm representation.</E> (1) No member of a firm of which a former Government employee is a member may represent or knowingly assist a person who was or is a specific party in any transaction with respect to which the restrictions of paragraph (b)(1) (other than 18 U.S.C. 207 (b)) or (b)(2) of this section apply to the former Government employee, in that transaction, unless:</P> <P>(i) No member of the firm who had knowledge of the participation by the Government employee in the transaction initiated discussions with the Government employee concerning his becoming a member of the firm until his Government employment is ended or six months after the termination of his participation in the transaction, whichever is earlier;</P> <P>(ii) The former Government employee did not initiate any discussions concerning becoming a member of the firm while participating in the transaction or, if such discussions were intitiated, they conformed with the requirements of 18 U.S.C. 208(b); and</P> <P>(iii) The firm isolates the former Government employee in such a way that he does not assist in the representation.</P> <P>(2) No member of a firm of which a former Government employee is a member may represent or knowingly assist a person who was or is a specific party in any transaction with respect to which the restrictions of paragraph (b)(3) of this section apply to the former employee, in that transaction unless the firm isolates the former Government employee in such a way that he does not assist in the representation.</P> <P>(3) When isolation of the former Government employee is required under paragraph (c)(1) or (c)(2) of this section, a statement affirming the fact of such isolation shall be executed under oath by the former Government employee and by a member of the firm acting on behalf of the firm, and shall be filed with the Director of Practice and in such other place and in the manner prescribed by regulation. This statement shall clearly identify the firm, the former Government employee, and the transaction or transactions requiring such isolation.</P> <P>(d) <E T="03">Pending representation.</E> Practice by former Government employees, their partners and associates with respect to representation in specific matters where actual representation commenced before publication of this regulation is governed by the regulations set forth in the June 1972 amendments <PRTPAGE P="197"/>to the regulations of this part (published at 37 FR 11676): <E T="03">Provided,</E> That the burden of showing that representation commenced before publication is with the former Government employees, their partners and associates.</P> <CITA>[42 FR 38352, July 28, 1977, as amended at 57 FR 41095, Sept. 9, 1992; 59 FR 31527, June 20, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.27</SECTNO> <SUBJECT>Notaries.</SUBJECT> <P>No attorney, certified public accountant, enrolled agent, or enrolled actuary as notary public shall with respect to any matter administered by the Internal Revenue Service take acknowledgments, administer oaths, certify papers, or perform any official act in connection with matters in which he is employed as counsel, attorney, or agent, or in which he may be in any way interested before the Internal Revenue Service (26 Op. Atty. Gen. 236).</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.28</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) <E T="03">Generally.</E> A practitioner may not charge an unconscionable fee for representing a client in a matter before the Internal Revenue Service.</P> <P>(b) <E T="03">Contingent fees for return preparation.</E> A practitioner may not charge a contingent fee for preparing an original return. A practitioner may charge a contingent fee for preparing an amended return or a claim for refund (other than a claim for refund made on an original return) if the practitioner reasonably anticipates at the time the fee arrangement is entered into that the amended return or claim will receive substantive review by the Service. A contingent fee includes a fee that is based on a percentage of the refund shown on a return or a percentage of the taxes saved, or that otherwise depends on the specific result attained.</P> <CITA>[59 FR 31527, June 20, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.29</SECTNO> <SUBJECT>Conflicting interests.</SUBJECT> <P>No attorney, certified public accountant, enrolled agent, or enrolled actuary shall represent conflicting interests in his practice before the Internal Revenue Service, except by express consent of all directly interested parties after full disclosure has been made.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.30</SECTNO> <SUBJECT>Solicitation.</SUBJECT> <P>(a) <E T="03">Advertising and solicitation restrictions.</E> (1) No attorney, certified public accountant, enrolled agent, enrolled actuary, or other individual eligible to practice before the Internal Revenue Service shall, with respect to any Internal Revenue Service matter, in any way use or participate in the use of any form of public communication containing (i) A false, fraudulent, unduly influencing, coercive, or unfair statement or claim; or (ii) a misleading or deceptive statement or claim. Enrolled agents, in describing their professional designation, may not utilize the term of art “certified” or indicate an employer/employee relationship with the Internal Revenue Service. Examples of acceptable descriptions are “enrolled to represent taxpayers before the Internal Revenue Service,” “enrolled to practice before the Internal Revenue Service, and “admitted to practice before the Internal Revenue Service.” Enrolled agents and enrolled actuaries may abbreviate such designation to either EA or E.A.</P> <P>(2) No attorney, certified public accountant, enrolled agent, enrolled actuary, or other individual eligible to practice before the Internal Revenue Service shall make, directly or indirectly, an uninvited solicitation of employment in matters related to the Internal Revenue Service. Solicitation includes, but is not limited to, in-person contacts and telephone communications. This restriction does not apply to (i) Seeking new business from an existing or former client in a related matter; (ii) communications with family members; (iii) making the availability of professional services known to other practitioners, so long as the person or firm contacted is not a potential client; (iv) solicitation by mailings; or (v) non-coercive in-person solicitation by those eligible to practice before the Internal Revenue Service while acting as an employee, member, or officer of an exempt organization listed in sections 501(c)(3) or (4) of the <PRTPAGE P="198"/>Internal Revenue Code of 1954 (26 U.S.C.).</P> <FP>Any targeted direct mail solicitation, i.e. a mailing to those whose unique circumstances are the basis for the solicitation, distributed by or on behalf of an attorney, certified public accountant, enrolled agency, enrolled actuary, or other individual eligible to practice before the Internal Revenue Service shall be clearly marked as such in capital letters on the envelope and at the top of the first page of such mailing. In addition, all such solicitations must clearly identify the source of the information used in choosing the recipient.</FP> <P>(b) <E T="03">Fee information.</E> (1) Attorney, certified public accountant, enrolled agent, or enrolled actuary and other individuals eligible to practice before the Internal Revenue Service may disseminate the following fee information:</P> <P>(i) Fixed fees for specific routine services.</P> <P>(ii) Hourly rates.</P> <P>(iii) Range of fees for particular services.</P> <P>(iv) Fee charged for an initial consultation.</P> <FP>Any statement of fee information concerning matters in which costs may be incurred shall include a statement disclosing whether clients will be responsible for such costs.</FP> <P>(2) Attorney, certified public accountant, enrolled agent, or enrolled actuary and other individuals eligible to practice before the Internal Revenue Service may also publish the availability of a written schedule of fees.</P> <P>(3) Attorney, certified public accountant, enrolled agent, or enrolled actuary and other individuals eligible to practice before the Internal Revenue Service shall be bound to charge the hourly rate, the fixed fee for specific routine services, the range of fees for particular services, or the fee for an initial consultation published for a reasonable period of time, but no less than thirty days from the last publication of such hourly rate or fees.</P> <P>(c) <E T="03">Communications.</E> Communication, including fee information, may include professional lists, telephone directories, print media, mailings, radio and television, and any other method: <E T="03">Provided,</E> that the method chosen does not cause the communication to become untruthful, deceptive, unduly influencing or otherwise in violation of these regulations. It shall be construed as a violation of these regulations for a practitioner to persist in attempting to contact a prospective client, if such client has made known to the practitioner a desire not to be solicited. In the case of radio and television broadcasting, the broadcast shall be pre-recorded and the practitioner shall retain a recording of the actual audio transmission. In the case of direct mail communications, the practitioner shall retain a copy of the actual mailing, along with a list or other description of persons to whom the communication was mailed or otherwise distributed. Such copy shall be retained by the practitioner for a period of at least 36 months from the date of the last transmission or use.</P> <P>(d) <E T="03">Improper associations.</E> An attorney, certified public accountant, enrolled agent, or enrolled actuary may in matters related to the Internal Revenue Service, employ or accept employment or assistance as an associate, correspondent, or sub-agent from, or share fees with, any person or entity who, to the knowledge of the practitioner, obtains clients or otherwise practices in a manner forbidden under this section: <E T="03">Provided,</E> That a practitioner does not, directly or indirectly, act or hold himself out as an Internal Revenue Service practitioner in connection with that relationship. Nothing herein shall prohibit an attorney, certified public accountant, or enrolled agent from practice before the Internal Revenue Service in a capacity other than that described above.</P> <CITA>[44 FR 4943, Jan. 24, 1979, as amended at 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.31</SECTNO> <SUBJECT>Negotiation of taxpayer refund checks.</SUBJECT> <P>No attorney, certified public accountant, enrolled agent, or enrolled actuary who is an income tax return preparer shall endorse or otherwise negotiate any check made in respect of <PRTPAGE P="199"/>income taxes which is issued to a taxpayer other than the attorney, certified public accountant or enrolled agent.</P> <CITA>[42 FR 38353, July 28, 1977, as amended at 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.32</SECTNO> <SUBJECT>Practice of law.</SUBJECT> <P>Nothing in the regulations in this part shall be construed as authorizing persons not members of the bar to practice law.</P> <CITA>[31 FR 10773, Aug. 13, 1966. Redesignated at 42 FR 38353, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.33</SECTNO> <SUBJECT>Tax shelter opinions.</SUBJECT> <P>(a) <E T="03">Tax shelter opinions and offering materials.</E> A practitioner who provides a tax shelter opinion analyzing the Federal tax effects of a tax shelter investment shall comply with each of the following requirements:</P> <P>(1) <E T="03">Factual matters.</E> (i) The practitioner must make inquiry as to all relevant facts, be satisfied that the material facts are accurately and completely described in the offering materials, and assure that any representations as to future activities are clearly identified, reasonable and complete.</P> <P>(ii) A practitioner may not accept as true asserted facts pertaining to the tax shelter which he/she should not, based on his/her background and knowledge, reasonably believe to be true. However, a practitioner need not conduct an audit or independent verification of the asserted facts, or assume that a client's statement of the facts cannot be relied upon, unless he/she has reason to believe that any relevant facts asserted to him/her are untrue.</P> <P>(iii) If the fair market value of property or the expected financial performance of an investment is relevant to the tax shelter, a practitioner may not accept an appraisal or financial projection as support for the matters claimed therein unless:</P> <P>(A) The appraisal or financial projection makes sense on its face;</P> <P>(B) The practitioner reasonably believes that the person making the appraisal or financial projection is competent to do so and is not of dubious reputation; and</P> <P>(C) The appraisal is based on the definition of fair market value prescribed under the relevant Federal tax provisions.</P> <P>(iv) If the fair market value of purchased property is to be established by reference to its stated purchase price, the practitioner must examine the terms and conditions upon which the property was (or is to be) purchased to determine whether the stated purchase price reasonably may be considered to be its fair market value.</P> <P>(2) <E T="03">Relate law to facts.</E> The practitioner must relate the law to the actual facts and, when addressing issues based on future activities, clearly identify what facts are assumed.</P> <P>(3) <E T="03">Identification of material issues.</E> The practitioner must ascertain that all material Federal tax issues have been considered, and that all of those issues which involve the reasonable possibility of a challenge by the Internal Revenue Service have been fully and fairly addressed in the offering materials.</P> <P>(4) <E T="03">Opinion on each material issue.</E> Where possible, the practitioner must provide an opinion whether it is more likely than not that an investor will prevail on the merits of each material tax issue presented by the offering which involves a reasonable possibility of a challenge by the Internal Revenue Service. Where such an opinion cannot be given with respect to any material tax issue, the opinion should fully describe the reasons for the practitioner's inability to opine as to the likely outcome.</P> <P>(5) <E T="03">Overall evaluation.</E> (i) Where possible, the practitioner must provide an overall evaluation whether the material tax benefits in the aggregate more likely than not will be realized. Where such an overall evaluation cannot be given, the opinion should fully describe the reasons for the practitioner's inability to make an overall evaluation. Opinions concluding that an overall evaluation cannot be provided will be given special scrutiny to determine if the stated reasons are adequate.</P> <P>(ii) A favorable overall evaluation may not be rendered unless it is based on a conclusion that substantially more than half of the material tax benefits, in terms of their financial impact <PRTPAGE P="200"/>on a typical investor, more likely than not will be realized if challenged by the Internal Revenue Service.</P> <P>(iii) If it is not possible to give an overall evaluation, or if the overall evaluation is that the material tax benefits in the aggregate will not be realized, the fact that the practitioner's opinion does not constitute a favorable overall evaluation, or that it is an unfavorable overall evaluation, must be clearly and prominently disclosed in the offering materials.</P> <P>(iv) The following examples illustrate the principles of this paragraph: </P> <EXAMPLE> <HD SOURCE="HED">Example (1).</HD> <P>A limited partnership acquires real property in a sale-leaseback transaction. The principal tax benefits offered to investing partners consist of depreciation and interest deductions. Lesser tax benefits are offered to investors by reason of several deductions under Internal Revenue Code section 162 (ordinary and necessary business expenses). If a practitioner concludes that it is more likely than not that the partnership will not be treated as the owner of the property for tax purposes (which is required to allow the interest and depreciation deductions), then he/she may not opine to the effect that it is more likely than not that the material tax benefits in the aggregate will be realized, regardless of whether favorable opinions may be given with respect to the deductions claimed under Code section 162.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example (2).</HD> <P>A corporation electing under subchapter S of the Internal Revenue Code is formed to engage in research and development activities. The offering materials forecast that deductions for research and experimental expenditures equal to 75% of the total investment in the corporation will be available during the first two years of the corporation's operations, other expenses will account for another 15% of the total investment, and that little or no gross income will be received by the corporation during this period. The practitioner concludes that it is more likely than not that deductions for research and experimental expenditures will be allowable. The practitioner may render an opinion to the effect that based on this conclusion, it is more likely than not that the material tax benefits in the aggregate will be realized, regardless of whether he/she can opine that it is more likely than not that any of the other tax benefits will be achieved. </P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example (3).</HD> <P>An investment program is established to acquire offsetting positions in commodities contracts. The objective of the program is to close the loss positions in year one and to close the profit positions in year two. The principal tax benefit offered by the program is a loss in the first year, coupled with the deferral of offsetting gain until the following year. The practitioner concludes that the losses will not be deductible in year one. Accordingly, he/she may not render an opinion to the effect that it is more likely than not that the material tax benefits in the aggregate will be realized, regardless of the fact that he/she is of the opinion that losses not allowable in year one will be allowable in year two, because the principal tax benefit offered is a one-year deferral of income.</P> </EXAMPLE> <EXAMPLE> <HD SOURCE="HED">Example (4).</HD> <P>A limited partnership is formed to acquire, own and operate residential rental real estate. The offering material forecasts gross income of $2,000,000 and total deductions of $10,000,000, resulting in net losses of $8,000,000 over the first six taxable years. Of the total deductions, depreciation and interest are projected to be $7,000,000, and other deductions $3,000,000. The practitioner concludes that it is more likely than not that all of the depreciation and interest deductions will be allowable, and that it is more likely than not that the other deductions will not be allowed. The practitioner may render an opinion to the efect that it is more likely than not that the material tax benefits in the aggregate will be realized.</P> </EXAMPLE> <P>(6) <E T="03">Description of opinion.</E> The practitioner must assure that the offering materials correctly and fairly represent the nature and extent of the tax shelter opinion.</P> <P>(b) <E T="03">Reliance on other opinions—</E>(1) <E T="03">In general.</E> A practitioner may provide an opinion on less than all of the material tax issues only if:</P> <P>(i) At least one other competent practitioner provides an opinion on the likely outcome with respect to all of the other material tax issues which involve a reasonable possibility of challenge by the Internal Revenue Service, and an overall evalution whether the material tax benefits in the aggregate more likely than not will be realized, which is disseminated in the same manner as the practitioner's opinion; and</P> <P>(ii) The practitioner, upon reviewing such other opinions and any offering materials, has no reason to believe that the standards of paragraph (a) of this section have not been complied with.</P> <FP>Notwithstanding the foregoing, a practitioner who has not been retained to provide an overall evaluation whether the material tax benefits in the aggregate more likely than not will be realized may issue an opinion on less than <PRTPAGE P="201"/>all the material tax issues only if he/she has no reason to believe, based on his/her knowledge and experience, that the overall evaluation given by the practitioner who furnishes the overall evaluation is incorrect on its face.</FP> <P>(2) <E T="03">Forecasts and projections.</E> A practitioner who is associated with forecasts or projections relating to or based upon the tax consequences of the tax shelter offering that are included in the offering materials, or are disseminated to potential investors other than the practitioner's clients, may rely on the opinion of another practitioner as to any or all material tax issues, provided that the practitioner who desires to rely on the other opinion has no reason to believe that the standards of paragraph (a) of this section have not been complied with by the practitioner rendering such other opinion, and the requirements of paragraph (b)(1) of this section are satisfied. The practitioner's report shall disclose any material tax issue not covered by, or incorrectly opined upon, by the other opinion, and shall set forth his/her opinion with respect to each such issue in a manner that satisfies the requirements of paragraph (a) of this section.</P> <P>(c) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Practitioner</E> includes any individual described in § 10.3(e).</P> <P>(2) A <E T="03">tax shelter,</E> as the term is used in this section, is an investment which has as a significant and intended feature for Federal income or excise tax purposes either of the following attributes:</P> <P>(i) Deductions in excess of income from the investment being available in any year to reduce income from other sources in that year, or</P> <P>(ii) Credits in excess of the tax attributable to the income from the investment being available in any year to offset taxes on income from other sources in that year. Excluded from the term are municipal bonds; annuities; family trusts (but not including schemes or arrangements that are marketed to the public other than in a direct practitioner-client relationship); qualified retirement plans; individual retirement accounts; stock option plans; securities issued in a corporate reorganization; mineral development ventures, if the only tax benefit would be percentage depletion; and real estate where it is anticipated that in no year is it likely that deductions will exceed gross income from the investment in that year, or that tax credits will exceed the tax attributable to gross income from the investment in that year. Whether an investment is intended to have tax shelter features depends on the objective facts and circumstances of each case. Significant weight will be given to the features described in the offering materials to determine whether the investment is a tax shelter.</P> <P>(3) A <E T="03">tax shelter opinion,</E> as the term is used in this section, is advice by a practitioner concerning the Federal tax aspects of a tax shelter either appearing or referred to in the offering materials, or used or referred to in connection with sales promotion efforts, and directed to persons other than the client who engaged the practitioner to give the advice. The term includes the tax aspects or tax risks portion of the offering materials prepared by or at the direction of a practitioner, whether or not a separate opinion letter is issued or whether or not the practitioner's name is referred to in the offering materials or in connection with the sales promotion efforts. In addition, a financial forcast or projection prepared by a practitioner is a tax shelter opinion if it is predicated on assumptions regarding Federal tax aspects of the investment, and it meets the other requirements of the first sentence of this paragraph. The term does not, however, include rendering advice solely to the offeror or reviewing parts of the offering materials, so long as neither the name of the practitioner, nor the fact that a practitioner has rendered advice concerning the tax aspects, is referred to in the offering materials or in connection with the sales promotion efforts.</P> <P>(4) A <E T="03">material</E> tax issue as the term is used in this section is</P> <P>(i) Any Federal income or excise tax issue relating to a tax shelter that would make a significant contribution toward sheltering from Federal taxes income from other sources by providing deductions in excess of the income from the tax shelter investment <PRTPAGE P="202"/>in any year, or tax credits available to offset tax liabilities in excess of the tax attributable to the tax shelter investment in any year;</P> <P>(ii) Any other Federal income or excise tax issue relating to a tax shelter that could have a significant impact (either benefical or adverse) on a tax shelter investor under any reasonably foreseeable circumstances (e.g., depreciation or investment tax credit recapture, availability of long-term capital gain treatment, or realization of taxable income in excess of cash flow, upon sale or other disposition of the tax shelter investment); and</P> <P>(iii) The potential applicability of penalties, additions to tax, or interest charges that reasonably could be asserted against a tax shelter investor by the Internal Revenue Service with respect to the tax shelter. The determination of what is material is to be made in good faith by the practitioner, based on information available at the time the offering materials are circulated.</P> <P>(d) For purposes of advising the Director of Practice whether an individual may have violated § 10.33, the Director of Practice is authorized to establish an Advisory Committee, composed of at least five individuals authorized to practice before the Internal Revenue Service. Under procedures established by the Director of Practice, such Advisory Committee shall, at the request of the Director of Practice, review and make recommendations with regard to alleged violations of § 10.33.</P> <APPRO>(Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 <E T="03">et seq.</E>; 5 U.S.C. 301; 31 U.S.C. 330; 31 U.S.C. 321 (Reorg. Plan No. 26 of 1950, 15 FR 4935, 64 Stat. 1280, 3 CFR, 1949-53 Comp., p. 1017))</APPRO> <CITA>[49 FR 6722, Feb. 23, 1984; 49 FR 7116, Feb. 27, 1984; 59 FR 31527, 31528, June 20, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.34</SECTNO> <SUBJECT>Standards for advising with respect to tax return positions and for preparing or signing returns.</SUBJECT> <P>(a) <E T="03">Standards of conduct</E>—(1) <E T="03">Realistic possibility standard.</E> A practitioner may not sign a return as a preparer if the practitioner determines that the return contains a position that does not have a realistic possibility of being sustained on its merits (the realistic possibility standard) unless the position is not frivolous and is adequately disclosed to the Service. A practitioner may not advise a client to take a position on a return, or prepare the portion of a return on which a position is taken, unless—</P> <P>(i) The practitioner determines that the position satisfies the realistic possibility standard; or</P> <P>(ii) The position is not frivolous and the practitioner advises the client of any opportunity to avoid the accuracy-related penalty in section 6662 of the Internal Revenue Code of 1986 by adequately disclosing the position and of the requirements for adequate disclosure.</P> <P>(2) <E T="03">Advising clients on potential penalties.</E> A practitioner advising a client to take a position on a return, or preparing or signing a return as a preparer, must inform the client of the penalties reasonably likely to apply to the client with respect to the position advised, prepared, or reported. The practitioner also must inform the client of any opportunity to avoid any such penalty by disclosure, if relevant, and of the requirements for adequate disclosure. This paragraph (a)(2) applies even if the practitioner is not subject to a penalty with respect to the position.</P> <P>(3) <E T="03">Relying on information furnished by clients.</E> A practitioner advising a client to take a position on a return, or preparing or signing a return as a preparer, generally may rely in good faith without verification upon information furnished by the client. However, the practitioner may not ignore the implications of information furnished to, or actually known by, the practitioner, and must make reasonable inquiries if the information as furnished appears to be incorrect, inconsistent, or incomplete.</P> <P>(4) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(i) <E T="03">Realistic possibility.</E> A position is considered to have a realistic possibility of being sustained on its merits if a reasonable and well-informed analysis by a person knowledgeable in the tax law would lead such a person to conclude that the position has approximately a one in three, or greater, likelihood of being sustained on its merits. The authorities described in 26 CFR <PRTPAGE P="203"/>1.6662-4(d)(3)(iii), or any successor provision, of the substantial understatement penalty regulations may be taken into account for purposes of this analysis. The possibility that a position will not be challenged by the Service (e.g., because the taxpayer's return may not be audited or because the issue may not be raised on audit) may not be taken into account.</P> <P>(ii) <E T="03">Frivolous.</E> A position is frivolous if it is patently improper.</P> <P>(b) <E T="03">Standard of discipline.</E> As provided in § 10.52, only violations of this section that are willful, reckless, or a result of gross incompetence will subject a practitioner to suspension or disbarment from practice before the Service.</P> <CITA>[59 FR 31527, June 20, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Rules Applicable to Disciplinary Proceedings</HD> <SECTION> <SECTNO>§ 10.50</SECTNO> <SUBJECT>Authority to disbar or suspend.</SUBJECT> <P>Pursuant to 31 U.S.C. 330(b), the Secretary of the Treasury after notice and an opportunity for a proceeding, may suspend or disbar any practitioner from practice before the Internal Revenue Service. The Secretary may take such action against any practitioner who is shown to be incompetent or disreputable, who refuses to comply with any regulation in this part, or who, with intent to defraud, willfully and knowingly misleads or threatens a client or prospective client.</P> <CITA>[59 FR 31528, June 20, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.51</SECTNO> <SUBJECT>Disreputable conduct.</SUBJECT> <P>Disreputable conduct for which an attorney, certified public accountant, enrolled agent, or enrolled actuary may be disbarred or suspended from practice before the Internal Revenue Service includes, but is not limited to:</P> <P>(a) Conviction of any criminal offense under the revenue laws of the United States, or of any offense involving dishonesty, or breach of trust.</P> <P>(b) Giving false or misleading information, or participating in any way in the giving of false or misleading information to the Department of the Treasury or any officer or employee thereof, or to any tribunal authorized to pass upon Federal tax matters, in connection with any matter pending or likely to be pending before them, knowing such information to be false or misleading. Facts or other matters contained in testimony, Federal tax returns, financial statements, applications for enrollment, affidavits, declarations, or any other document or statement, written or oral, are included in the term “information.”</P> <P>(c) Solicitation of employment as prohibited under § 10.30, the use of false or misleading representations with intent to deceive a client or prospective client in order to procure employment, or intimating that the practitioner is able improperly to obtain special consideration or action from the Internal Revenue Service or officer or employee thereof.</P> <P>(d) Willfully failing to make Federal tax return in violation of the revenue laws of the United States, or evading, attempting to evade, or participating in any way in evading or attempting to evade any Federal tax or payment thereof, knowingly counseling or suggesting to a client or prospective client an illegal plan to evade Federal taxes or payment thereof, or concealing assets of himself or another to evade Federal taxes or payment thereof.</P> <P>(e) Misappropriation of, or failure properly and promptly to remit funds received from a client for the purpose of payment of taxes or other obligations due the United States.</P> <P>(f) Directly or indirectly attempting to influence, or offering or agreeing to attempt to influence, the official action of any officer or employee of the Internal Revenue Service by the use of threats, false accusations, duress or coercion, by the offer of any special inducement or promise of advantage or by the bestowing of any gift, favor or thing of value.</P> <P>(g) Disbarment or suspension from practice as an attorney, certified public accountant, public accountant, or actuary by any duly constituted authority of any State, possession, territory, Commonwealth, the District of Columbia, any Federal court of record or any Federal agency, body or board.</P> <P>(h) Knowingly aiding and abetting another person to practice before the <PRTPAGE P="204"/>Internal Revenue Service during a period of suspension, disbarment, or ineligibility of such other person. Maintaining a partnership for the practice of law, accountancy, or other related professional service with a person who is under disbarment from practice before the Service shall be presumed to be a violation of this provision.</P> <P>(i) Contemptuous conduct in connection with practice before the Internal Revenue Service, including the use of abusive language, making false accusations and statements knowing them to be false, or circulating or publishing malicious or libelous matter.</P> <P>(j) Giving a false opinion, knowingly, recklessly, or through gross incompetence, including an opinion which is intentionally or recklessly misleading, or a pattern of providing incompetent opinions on questions arising under the Federal tax laws. False opinions described in this paragraph include those which reflect or result from a knowing misstatement of fact or law; from an assertion of a position known to be unwarranted under existing law; from counseling or assisting in conduct known to be illegal or fraudulent; from concealment of matters required by law to be revealed; or from conscious disregard of information indicating that material facts expressed in the tax opinion or offering material are false or misleading. For purposes of this paragraph, reckless conduct is a highly unreasonable omission or misrepresentation involving an extreme departure from the standards of ordinary care that a practitioner should observe under the circumstances. A pattern of conduct is a factor that will be taken into account in determining whether a practitioner acted knowingly, recklessly, or through gross incompetence. Gross incompetence includes conduct that reflects gross indifference, preparation which is grossly inadequate under the circumstances, and a consistent failure to perform obligations to the client.</P> <APPRO>(Sec. 3, 23 Stat. 258, secs. 2-12, 60 Stat. 237 <E T="03">et seq.</E>; 5 U.S.C. 301; 31 U.S.C. 330; 31 U.S.C. 321 (Reorg. Plan No. 26 of 1950, 15 FR 4935, 64 Stat. 1280, 3 CFR, 1949-53 Comp., p. 1017))</APPRO> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13205, Aug. 19, 1970; 42 FR 38353, July 28, 1977; 44 FR 4946, Jan. 24, 1979; 49 FR 6723, Feb. 23, 1984; 57 FR 41095, Sept. 9, 1992; 59 FR 31528, June 20, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.52</SECTNO> <SUBJECT>Violation of regulations.</SUBJECT> <P>A practitioner may be disbarred or suspended from practice before the Internal Revenue Service for any of the following:</P> <P>(a) Willfully violating any of the regulations contained in this part.</P> <P>(b) Recklessly or through gross incompetence (within the meaning of § 10.51(j)) violating § 10.33 or § 10.34 of this part.</P> <CITA>[59 FR 31528, June 20, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.53</SECTNO> <SUBJECT>Receipt of information concerning attorney, certified public accountant, enrolled agent, or enrolled actuary.</SUBJECT> <P>If an officer or employee of the Internal Revenue Service has reason to believe that an attorney, certified public accountant, enrolled agent, or enrolled actuary has violated any provision of this part, or if any such officer or employee receives information to that effect, he shall promptly make a written report thereof, which report or a copy thereof shall be forwarded to the Director of Practice. If any other person has information of such violations, he may make a report thereof to the Director of Practice or to any officer or employee of the Internal Revenue Service.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.54</SECTNO> <SUBJECT>Institution of proceeding.</SUBJECT> <P>Whenever the Director of Practice has reason to believe that any attorney, certified public accountant, enrolled agent, or enrolled actuary has violated any provision of the laws or <PRTPAGE P="205"/>regulations governing practice before the Internal Revenue Service, he may reprimand such person or institute a proceeding for disbarment or suspension of such person. The proceeding shall be instituted by a complaint which names the respondent and is signed by the Director of Practice and filed in his office. Except in cases of willfulness, or where time, the nature of the proceeding, or the public interest does not permit, a proceeding will not be instituted under this section until facts or conduct which may warrant such action have been called to the attention of the proposed respondent in writing and he has been accorded opportunity to demonstrate or achieve compliance with all lawful requirements.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.55</SECTNO> <SUBJECT>Conferences.</SUBJECT> <P>(a) <E T="03">In general.</E> The Director of Practice may confer with an attorney, certified public accountant, enrolled agent, or enrolled actuary concerning allegations of misconduct irrespective of whether a proceeding for disbarment or suspension has been instituted against him. If such conference results in a stipulation in connection with a proceeding in which such person is the respondent, the stipulation may be entered in the record at the instance of either party to the proceeding.</P> <P>(b) <E T="03">Resignation or voluntary suspension.</E> An attorney, certified public accountant, enrolled agent, or enrolled actuary, in order to avoid the institution or conclusion of a disbarment or suspension proceeding, may offer his consent to suspension from practice before the Internal Revenue Service. An enrolled agent may also offer his resignation. The Director of Practice, in his discretion, may accept the offered resignation of an enrolled agent and may suspend an attorney, certified public accountant, or enrolled agent in accordance with the consent offered.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13206, Aug. 19, 1970; 57 FR 41095, Sept. 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.56</SECTNO> <SUBJECT>Contents of complaint.</SUBJECT> <P>(a) <E T="03">Charges.</E> A complaint shall give a plain and concise description of the allegations which constitute the basis for the proceeding. A complaint shall be deemed sufficient if it fairly informs the respondent of the charges against him so that he is able to prepare his defense.</P> <P>(b) <E T="03">Demand for answer.</E> In the complaint, or in a separate paper attached to the complaint, notification shall be given of the place and time within which the respondent shall file his answer, which time shall not be less than 15 days from the date of service of the complaint, and notice shall be given that a decision by default may be rendered against the respondent in the event he fails to file his answer as required.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38353, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.57</SECTNO> <SUBJECT>Service of complaint and other papers.</SUBJECT> <P>(a) <E T="03">Complaint.</E> The complaint or a copy thereof may be served upon the respondent by certified mail, or first-class mail as hereinafter provided; by delivering it to the respondent or his attorney or agent of record either in person or by leaving it at the office or place of business of the respondent, attorney or agent; or in any other manner which has been agreed to by the respondent. Where the service is by certified mail, the return post office receipt duly signed by or on behalf of the respondent shall be proof of service. If the certified matter is not claimed or accepted by the respondent and is returned undelivered, complete service may be made upon the respondent by mailing the complaint to him by first-class mail, addressed to him at the address under which he is enrolled or at the last address known to the Director of Practice. If service is made upon the respondent or his attorney or agent of record in person or by leaving the complaint at the office or place of business of the respondent, attorney or agent, the verified return by the person making service, setting forth the manner of service, shall be proof of such service.<PRTPAGE P="206"/> </P> <P>(b) <E T="03">Service of papers other than complaint.</E> Any paper other than the complaint may be served upon an attorney, certified public accountant, or enrolled agent as provided in paragraph (a) of this section or by mailing the paper by first-class mail to the respondent at the last address known to the Director of Practice, or by mailing the paper by first-class mail to the respondent's attorney or agent of record. Such mailing shall constitute complete service. Notices may be served upon the respondent or his attorney or agent of record by telegraph.</P> <P>(c) <E T="03">Filing of papers.</E> Whenever the filing of a paper is required or permitted in connection with a disbarment or suspension proceeding, and the place of filing is not specified by this subpart or by rule or order of the Administrative Law Judge, the paper shall be filed with the Director of Practice, Treasury Department, Washington, DC 20220. All papers shall be filed in duplicate.</P> <CITA>[Dept. Circ. 230, Rev., 31 FR 10773, Aug. 13, 1966, as amended at 31 FR 13992, Nov. 2, 1966; 42 FR 38354, July 28, 1977] </CITA> </SECTION> <SECTION> <SECTNO>§ 10.58</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>(a) <E T="03">Filing.</E> The respondent's answer shall be filed in writing within the time specified in the complaint or notice of institution of the proceeding, unless on application the time is extended by the Director of Practice or the Administrative Law Judge. The answer shall be filed in duplicate with the Director of Practice.</P> <P>(b) <E T="03">Contents.</E> The answer shall contain a statement of facts which constitute the grounds of defense, and it shall specifically admit or deny each allegation set forth in the complaint, except that the respondent shall not deny a material allegation in the complaint which he knows to be true, or state that he is without sufficient information to form a belief when in fact he possesses such information. The respondent may also state affirmatively special matters of defense.</P> <P>(c) <E T="03">Failure to deny or answer allegations in the complaint.</E> Every allegation in the complaint which is not denied in the answer shall be deemed to be admitted and may be considered as proved, and no further evidence in respect of such allegation need be adduced at a hearing. Failure to file an answer within the time prescribed in the notice to the respondent, except as the time for answer is extended by the Director of Practice or the Administrative Law Judge, shall constitute an admission of the allegations of the complaint and a waiver of hearing, and the Examiner may make his decision by default without a hearing or further procedure.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.59</SECTNO> <SUBJECT>Supplemental charges.</SUBJECT> <P>If it appears that the respondent in his answer, falsely and in bad faith, denies a material allegation of fact in the complaint or states that the respondent has no knowledge sufficient to form a belief, when he in fact possesses such information, or if it appears that the respondent has knowingly introduced false testimony during proceedings for his disbarment or suspension, the Director of Practice may thereupon file supplemental charges against the respondent. Such supplemental charges may be tried with other charges in the case, provided the respondent is given due notice thereof and is afforded an opportunity to prepare a defense thereto.</P> </SECTION> <SECTION> <SECTNO>§ 10.60</SECTNO> <SUBJECT>Reply to answer.</SUBJECT> <P>No reply to the respondent's answer shall be required, and new matter in the answer shall be deemed to be denied, but the Director of Practice may file a reply in his discretion or at the request of the Administrative Law Judge.</P> <CITA>[31 FR 10773, Aug. 13, 1966 as amended at 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.61</SECTNO> <SUBJECT>Proof; variance; amendment of pleadings.</SUBJECT> <P>In the case of a variance between the allegations in a pleading and the evidence adduced in support of the pleading, the Examiner may order or authorize amendment of the pleading to conform to the evidence: <E T="03">Provided,</E> That the party who would otherwise be prejudiced by the amendment is given reasonable opportunity to meet the allegations of the pleading as amended; and the Administrative Law Judge <PRTPAGE P="207"/>shall make findings on any issue presented by the pleadings as so amended.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.62</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <P>Motions and requests may be filed with the Director of Practice or with the Administrative Law Judge.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.63</SECTNO> <SUBJECT>Representation.</SUBJECT> <P>A respondent or proposed respondent may appear in person or he may be represented by counsel or other representative who need not be enrolled to practice before the Internal Revenue Service. The Director may be represented by an attorney or other employee of the Internal Revenue Service.</P> </SECTION> <SECTION> <SECTNO>§ 10.64</SECTNO> <SUBJECT>Administrative Law Judge.</SUBJECT> <P>(a) <E T="03">Appointment.</E> An Administrative Law Judge appointed as provided by 5 U.S.C. 3105 (1966), shall conduct proceedings upon complaints for the disbarment or suspension of attorneys, certified public accountants, or enrolled agents.</P> <P>(b) <E T="03">Powers of Examiner.</E> Among other powers, the Examiner shall have authority, in connection with any disbarment or suspension proceeding assigned or referred to him, to do the following:</P> <P>(1) Administer oaths and affirmations;</P> <P>(2) Make rulings upon motions and requests, which rulings may not be appealed from prior to the close of a hearing except, at the discretion of the Administrative Law Judge, in extraordinary circumstances;</P> <P>(3) Determine the time and place of hearing and regulate its course and conduct;</P> <P>(4) Adopt rules of procedure and modify the same from time to time as occasion requires for the orderly disposition of proceedings;</P> <P>(5) Rule upon offers of proof, receive relevant evidence, and examine witnesses;</P> <P>(6) Take or authorize the taking of depositions;</P> <P>(7) Receive and consider oral or written argument on facts or law;</P> <P>(8) Hold or provide for the holding of conferences for the settlement or simplification of the issues by consent of the parties;</P> <P>(9) Perform such acts and take such measures as are necessary or appropriate to the efficient conduct of any proceeding; and</P> <P>(10) Make initial decisions.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38353, 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.65</SECTNO> <SUBJECT>Hearings.</SUBJECT> <P>(a) <E T="03">In general.</E> An Administrative Law Judge will preside at the hearing on a complaint furnished under § 10.54 for the disbarment or suspension of a practitioner. Hearings will be stenographically recorded and transcribed and the testimony of witnesses will be taken under oath or affirmation. Hearings will be conducted pursuant to 5 U.S.C. 556. A hearing in a proceeding requested under § 10.76(g) will be conducted <E T="03">de novo.</E> </P> <P>(b) <E T="03">Failure to appear.</E> If either party to the proceeding fails to appear at the hearing, after due notice thereof has been sent to him, he shall be deemed to have waived the right to a hearing and the Administrative Law Judge may make his decision against the absent party by default.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28, 1977; 59 FR 31528, June 20, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.66</SECTNO> <SUBJECT>Evidence.</SUBJECT> <P>(a) <E T="03">In general.</E> The rules of evidence prevailing in courts of law and equity are not controlling in hearings on complaints for the disbarment or suspension of attorneys, certified public accountants, and enrolled agents. However, the Administrative Law Judge shall exclude evidence which is irrelevant, immaterial, or unduly repetitious.</P> <P>(b) <E T="03">Depositions.</E> The deposition of any witness taken pursuant to § 10.67 may be admitted.</P> <P>(c) <E T="03">Proof of documents.</E> Official documents, records, and papers of the Internal Revenue Service and the Office of Director of Practice shall be admissible in evidence without the production of an officer or employee to authenticate them. Any such documents, records, <PRTPAGE P="208"/>and papers may be evidenced by a copy attested or identified by an officer or employee of the Internal Revenue Service or the Treasury Department, as the case may be.</P> <P>(d) <E T="03">Exhibits</E>. If any document, record, or other paper is introduced in evidence as an exhibit, the Administrative Law Judge may authorize the withdrawal of the exhibit subject to any conditions which he deems proper.</P> <P>(e) <E T="03">Objections</E>. Objections to evidence shall be in short form, stating the grounds of objection relied upon, and the record shall not include argument thereon, except as ordered by the Administrative Law Judge. Rulings on such objections shall be a part of the record. No exception to the ruling is necessary to preserve the rights of the parties.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13206, Aug. 19, 1970; 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.67</SECTNO> <SUBJECT>Depositions.</SUBJECT> <P>Depositions for use at a hearing may, with the written approval of the Administrative Law Judge be taken by either the Director of Practice or the respondent or their duly authorized representatives. Depositions may be taken upon oral or written interrogatories, upon not less than 10 days’ written notice to the other party before any officer duly authorized to administer an oath for general purposes or before an officer or employee of the Internal Revenue Service who is authorized to administer an oath in internal revenue matters. Such notice shall state the names of the witnesses and the time and place where the depositions are to be taken. The requirement of 10 days’ notice may be waived by the parties in writing, and depositions may then be taken from the persons and at the times and places mutually agreed to by the parties. When a deposition is taken upon written interrogatories, any cross-examination shall be upon written interrogatories. Copies of such written interrogatories shall be served upon the other party with the notice, and copies of any written cross-interrogation shall be mailed or delivered to the opposing party at least 5 days before the date of taking the depositions, unless the parties mutually agree otherwise. A party upon whose behalf a deposition is taken must file it with the Administrative Law Judge and serve one copy upon the opposing party. Expenses in the reporting of depositions shall be borne by the party at whose instance the deposition is taken.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.68</SECTNO> <SUBJECT>Transcript.</SUBJECT> <P>In cases where the hearing is stenographically reported by a Government contract reported, copies of the transcript may be obtained from the reporter at rates not to exceed the maximum rates fixed by contract between the Government and the reporter. Where the hearing is stenographically reported by a regular employee of the Internal Revenue Service, a copy thereof will be supplied to the respondent either without charge or upon the payment of a reasonable fee. Copies of exhibits introduced at the hearing or at the taking or depositions will be supplied to the parties upon the payment of a reasonable fee (Sec. 501, Pub. L. 82-137, 65 Stat. 290 (31 U.S.C. 483a)).</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.69</SECTNO> <SUBJECT>Proposed findings and conclusions.</SUBJECT> <P>Except in cases where the respondent has failed to answer the complaint or where a party has failed to appear at the hearing, the Administrative Law Judge prior to making his decision, shall afford the parties a reasonable opportunity to submit proposed findings and conclusions and supporting reasons therefor.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.70</SECTNO> <SUBJECT>Decision of the Administrative Law Judge.</SUBJECT> <P>As soon as practicable after the conclusion of a hearing and the receipt of any proposed findings and conclusions timely submitted by the parties, the Administrative Law Judge shall make the initial decision in the case. The decision shall include (a) a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the <PRTPAGE P="209"/>material issues of fact, law, or discretion presented on the record, and (b) an order of disbarment, suspension, or reprimand or an order of dismissal of the complaint. The Administrative Law Judge shall file the decision with the Director of Practice and shall transmit a copy thereof to the respondent or his attorney of record. In the absence of an appeal to the Secretary of the Treasury, or review of the decision upon motion of the Secretary, the decision of the Administrative Law Judge shall without further proceedings become the decisions of the Secretary of the Treasury 30 days from the date of the Administrative Law Judge's decision.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.71</SECTNO> <SUBJECT>Appeal to the Secretary.</SUBJECT> <P>Within 30 days from the date of the Administrative Law Judge's decision, either party may appeal to the Secretary of the Treasury. The appeal shall be filed with the Director of Practice in duplicate and shall include exceptions to the decision of the Administrative Law Judge and supporting reasons for such exceptions. If an appeal is filed by the Director of Practice, he shall transmit a copy thereof to the respondent. Within 30 days after receipt of an appeal or copy thereof, the other party may file a reply brief in duplicate with the Director of Practice. If the reply brief is filed by the Director, he shall transmit a copy of it to the respondent. Upon the filing of an appeal and a reply brief, if any, the Director of Practice shall transmit the entire record to the Secretary of the Treasury.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.72</SECTNO> <SUBJECT>Decision of the Secretary.</SUBJECT> <P>On appeal from or review of the initial decision of the Administrative Law Judge, the Secretary of the Treasury will make the agency decision. In making his decision the Secretary of the Treasury will review the record or such portions thereof as may be cited by the parties to permit limiting of the issues. A copy of the Secretary's decision shall be transmitted to the respondent by the Director of Practice.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 42 FR 38354, July 28, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.73</SECTNO> <SUBJECT>Effect of disbarment or suspension; surrender of card.</SUBJECT> <P>In case the final order against the respondent is for disbarment, the respondent shall not thereafter be permitted to practice before the Internal Revenue Service unless and until authorized to do so by the Director of Practice pursuant to § 10.75. In case the final order against the respondent is for suspension, the respondent shall not thereafter be permitted to practice before the Internal Revenue Service during the period of suspension. If an enrolled agent is disbarred or suspended, he shall surrender his enrollment card to the Director of Practice for cancellation, in the case of disbarment, or for retention during the period of suspension.</P> </SECTION> <SECTION> <SECTNO>§ 10.74</SECTNO> <SUBJECT>Notice of disbarment or suspension.</SUBJECT> <P>Upon the issuance of a final order disbarring or suspending an attorney, certified public accountant, or enrolled agent, the Director of Practice shall give notice thereof to appropriate officers and employees of the Internal Revenue Service and to interested departments and agencies of the Federal Government. Notice in such manner as the Director of Practice may determine may be given to the proper authorities of the State by which the disbarred or suspended person was licensed to practice as an attorney or accountant.</P> </SECTION> <SECTION> <SECTNO>§ 10.75</SECTNO> <SUBJECT>Petition for reinstatement.</SUBJECT> <P>The Director of Practice may entertain a petition for reinstatement from any person disbarred from practice before the Internal Revenue Service after the expiration of 5 years following such disbarment. Reinstatement may not be granted unless the Director of Practice is satisfied that the petitioner, thereafter, is not likely to conduct himself contrary to the regulations in this <PRTPAGE P="210"/>part, and that granting such reinstatement would not be contrary to the public interest.</P> <CITA>[31 FR 10773, Aug. 13, 1966, as amended at 35 FR 13206, Aug. 19, 1970]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.76</SECTNO> <SUBJECT>Expedited suspension upon criminal conviction or loss of license for cause.</SUBJECT> <P>(a) <E T="03">When applicable.</E> Whenever the Director has reason to believe that a practitioner is described in paragraph (b) of this section, the Director may institute a proceeding under this section to suspend the practitioner from practice before the Service.</P> <P>(b) <E T="03">To whom applicable.</E> This section applies to any practitioner who, within 5 years of the date a complaint instituting a proceeding under this section is served—</P> <P>(1) Has had his or her license to practice as an attorney, certified public accountant, or actuary suspended or revoked for cause (not including a failure to pay a professional licensing fee) by any authority or court, agency, body, or board described in § 10.51(g); or</P> <P>(2) Has been convicted of any crime under title 26 of the United States Code, or a felony under title 18 of the United States Code involving dishonesty or breach of trust.</P> <P>(c) <E T="03">Instituting a proceeding.</E> A proceeding under this section will be instituted by a complaint that names the respondent, is signed by the Director, is filed in the Director's office, and is served according to the rules set forth in § 10.57(a). The complaint must give a plain and concise description of the allegations that constitute the basis for the proceeding. The complaint, or a separate paper attached to the complaint, must notify the respondent—</P> <P>(1) Of the place and due date for filing an answer;</P> <P>(2) That a decision by default may be rendered if the respondent fails to file an answer as required;</P> <P>(3) That the respondent may request a conference with the Director to address the merits of the complaint and that any such request must be made in the answer; and</P> <P>(4) That the respondent may be suspended either immediately following the expiration of the period by which an answer must be filed or, if a conference is requested, immediately following the conference.</P> <P>(d) <E T="03">Answer.</E> The answer to a complaint described in this section must be filed no later than 30 calendar days following the date the complaint is served, unless the Director extends the time for filing. The answer must be filed in accordance with the rules set forth in § 10.58, except as otherwise provided in this section. A respondent is entitled to a conference with the Director only if the conference is requested in a timely filed answer. If a request for a conference is not made in the answer or the answer is not timely filed, the respondent will be deemed to have waived his or her right to a conference and the Director may suspend such respondent at any time following the date on which the answer was due.</P> <P>(e) <E T="03">Conference.</E> The Director or his or her designee will preside at a conference described in this section. The conference will be held at a place and time selected by the Director, but no sooner than 14 calendar days after the date by which the answer must be filed with the Director, unless the respondent agrees to an earlier date. An authorized representative may represent the respondent at the conference. Following the conference, upon a finding that the respondent is described in paragraph (b) of this section, or upon the respondent's failure to appear at the conference either personally or through an authorized representative, the Director may immediately suspend the respondent from practice before the Service.</P> <P>(f) <E T="03">Duration of suspension.</E> A suspension under this section will commence on the date that written notice of the suspension is issued. A practitioner's suspension will remain effective until the earlier of the following—</P> <P>(1) The Director lifts the suspension after determining that the practitioner is no longer described in paragraph (b) of this section or for any other reason; or</P> <P>(2) The suspension is lifted by an Administrative Law Judge or the Secretary of the Treasury in a proceeding referred to in paragraph (g) of this section and instituted under § 10.54.</P> <P>(g) <E T="03">Proceeding instituted under § 10.54.</E> If the Director suspends a practitioner <PRTPAGE P="211"/>under this § 10.76, the practitioner may ask the Director to issue a complaint under § 10.54. The request must be made in writing within 2 years from the date on which the practitioner's suspension commences. The Director must issue a complaint requested under this paragraph within 30 calendar days of receiving the request.</P> <CITA>[59 FR 31528, June 20, 1994]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Rules Applicable to Disqualification of Appraisers</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>50 FR 42016, Oct. 17, 1985, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 10.77</SECTNO> <SUBJECT>Authority to disqualify; effect of disqualification.</SUBJECT> <P>(a) <E T="03">Authority to disqualify.</E> Pursuant to section 156 of the Deficit Reduction Act of 1984, 98 Stat. 695, amending 31 U.S.C. 330, the Secretary of the Treasury, after due notice and opportunity for hearing may disqualify any appraiser with respect to whom a penalty has been assessed after July 18, 1984, under section 6701(a) of the Internal Revenue Code of 1954, as amended (26 U.S.C. 6701(a)).</P> <P>(b) <E T="03">Effect of disqualification.</E> If any appraiser is disqualified pursuant to 31 U.S.C. 330 and this subpart:</P> <P>(1) Appraisals by such appraiser shall not have any probative effect in any administrative proceeding before the Department of the Treasury or the Internal Revenue Service; and</P> <P>(2) Such appraiser shall be barred from presenting evidence or testimony in any such administrative proceeding. Paragraph (b)(1) of this section shall apply to appraisals made by such appraiser after the effective date of disqualification, but shall not apply to appraisals made by the appraiser on or before such date. Notwithstanding the foregoing sentence, an appraisal otherwise barred from admission