E7-18859. Privacy Act; Implementation

AGENCY:

Office of the Secretary, Treasury.

ACTION:

Final rule.

SUMMARY:

In accordance with the requirements of the Privacy Act of 1974, 5 U.S.C. 552a, as amended, the Internal Revenue Service published a notice of proposed rulemaking on November 28, 2005 to remove the exemption claimed for the system of records Treasury/IRS 34.022, pursuant to 5 U.S.C. 552a(j)(2) and in its place claim an exemption pursuant to 5 U.S.C. 552a(k)(5).

EFFECTIVE DATE:

September 25, 2007.

FOR FURTHER INFORMATION CONTACT:

Written inquiries as they relate to this system should be directed to Mary Anderson, IRS, Personnel Security and Investigations, 5205 Leesburg Pike, Suite 510, Falls Church, VA 22041-3802.

SUPPLEMENTARY INFORMATION:

The Internal Revenue Service published a notice of proposed rulemaking on November 28, 2005, at 70 FR 71245, to remove the (j)(2) exemption and in its place claim the exemption pursuant to 5 U.S.C. 552a(k)(5) exemption. No comments were received by the IRS.

The records in this system are no longer compiled for law enforcement purposes and do not qualify for the (j)(2) exemption. The (k)(5) exemption is more appropriate because the investigatory material contained in this system of records is collected and maintained solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information.

The (j)(2) exemption was initially applied to this system which was the database used for all Inspection (now the Treasury Inspector General for Tax Administration [TIGTA]) investigations. TIGTA is not a part of IRS and no Inspection investigations are maintained in this system, with the exception of personnel security investigations. 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, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information. This is applicable 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 the records in this system can be disclosed without revealing the identity of a confidential source, they are not within the scope of this exemption and are subject to all the requirements of the Privacy Act.

The sections of 5 U.S.C. 552a from which the systems of records are 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 Department to compile investigatory material for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, Federal contracts, or access to classified information. In addition, the systems should 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 Department 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.

A separate notice revising the system of records entitled “IRS 34.022—National Background Investigations Center Management Information System” was published in the Federal Register on November 28, 2005, at 70 FR 71376. Among other changes, the name of the system of records was changed to “Automated Background Investigations System (ABIS).”

As required by Executive Order 12866, it has been determined that this final rule is not a significant regulatory action, and therefore, does not require a regulatory impact analysis.

The regulation will not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this rule does not have federalism implications under Executive Order 13132.

Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, it is hereby certified that these regulations will not significantly affect a substantial number of small entities. The final rule imposes no duties or obligations on small entities.

In accordance with the provisions of the Paperwork Reduction Act of 1995, the Department of the Treasury has determined that this final rule would not impose new record keeping, application, reporting, or other types of information collection requirements.

List of Subjects in 31 CFR Part 1

• Privacy

Part 1 subpart C of Title 31 of the Code of Federal Regulations amended as follows:

PART 1—[AMENDED]

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

Authority: 5 U.S.C. 301, 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.

2. Section 1.36 of subpart C is amended as follows:

a. Paragraph (c)(1)(viii) is amended by removing “IRS 34.022—National Background Investigations Center Management Information System” from the table.

b. Paragraph (m)(1)(viii) is amended by adding the following text to the table in numerical order:

§ 1.36

Systems exempt in whole or in part from provisions of 5 U.S.C. 522a and this part.

* * * * *

(m) * * *

(1) * * *

(viii) * * *

Number	Name of system
*    *    *    *    *
IRS 34.022	Automated Background Investigations System (ABIS)
*    *    *    *    *

* * * * *

Dated: September 18, 2007.

Peter B. McCarthy,

Assistant Secretary for Management and Chief Financial Officer.