E8-20205. Privacy Act; Implementation

AGENCY:

Office of the Secretary, Treasury.

ACTION:

Interim rule; request for comments.

SUMMARY:

In accordance with the requirements of the Privacy Act of 1974, as amended, the Department of the Treasury gives notice of an amendment to its Privacy Act regulations by revising the title of one Privacy Act system of records and by removing five other Privacy Act systems of records. These systems of records are related to the functions of the Alcohol and Tobacco Tax and Trade Bureau (TTB).

DATES:

This interim rule is effective on September 2, 2008. Comments on this interim rule must be received on or before October 2, 2008.

ADDRESSES:

You may send comments on this interim rule to one of the following addresses:

• http://www.regulations.gov (Federal e-rulemaking portal; follow the instructions for submitting comments); or
• Gerry Isenberg, Assistant Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.

Public Participation

Comments Sought

We request comments on this interim rule from interested members of the public.

Submitting Comments

You may submit comments on this notice by one of the following two methods:

• Federal e-Rulemaking Portal: To submit a comment on this notice using the online Federal e-rulemaking portal, visit http://www.regulations.gov and select “Alcohol and Tobacco Tax and Trade Bureau” from the agency drop-down menu and click “Submit.” In the resulting docket list, open the docket containing this interim rule, click the “Add Comments” icon for this interim rule, and complete the resulting comment form. You may attach supplemental files to your comment. A direct link to the appropriate docket is also available on the TTB Web site at http://www.ttb.gov/​regulations_​laws/​all_​rulemaking.shtml. More complete information on using Regulations.gov, including instructions for accessing open and closed dockets and for submitting comments, is available through the site's “User Tips” link.
• Mail: You may send written comments to Gerry Isenberg, Assistant Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.

Please submit your comments by the closing date shown above in this notice. Your comments must include this notice number and your name and mailing address. Your comments must be in English, legible, and written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.

If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via http://www.regulations.gov,, please enter the entity's name in the “Organization” blank of the comment form. If you comment via mail, please submit your entity's comment on letterhead.

Confidentiality

All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

Public Disclosure

On the Federal e-rulemaking portal, TTB will post, and you may view, copies of this notice and any electronic or mailed comments TTB receives about this proposal. To view a posted document or comment, go to http://www.regulations.gov and select “Alcohol and Tobacco Tax and Trade Bureau” from the agency drop-down menu and click “Submit.” In the resulting docket list, click the appropriate docket number, then click the “View” icon for any document or comment posted under that docket number. A direct link to the docket containing this interim rule is also available on the TTB Web site at http://www.ttb.gov/​regulations_​laws/​all_​rulemaking.shtml.

All submitted and posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. TTB may omit voluminous attachments or material that it considers unsuitable for posting.

You also may view copies of this notice and any electronic or mailed comments TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5 × 11-inch page. Contact TTB's information specialist at the above address or by telephone at 202-927-2400 to schedule an appointment or to request copies of comments or other materials.

You may view copies of this document and any comments TTB receives about this proposal at http://www.regulations.gov. A direct link to the appropriate docket is available on the TTB Web site at http://www.ttb.gov/​regulations_​ laws/all_rulemaking.shtml. You also may view copies of this document and any comments TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. To make an appointment, call 202-927-2400.

FOR FURTHER INFORMATION CONTACT:

Gerry Isenberg, Assistant Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Washington, DC 20005; phone [phone].

SUPPLEMENTARY INFORMATION:

Effective January 24, 2003, the Homeland Security Act of 2002 divided the Bureau of Alcohol, Tobacco and Firearms (ATF) into two new agencies, the Alcohol and Tobacco Tax and Trade Bureau (TTB) in the Department of the Treasury and the Bureau of Alcohol, Tobacco, Firearms and Explosives in the Department of Justice. The Bureau of Alcohol, Tobacco, Firearms and Explosives oversees Federal firearms, explosives, and arson laws and programs, and administers laws pertaining to alcohol and tobacco smuggling and diversion. TTB is responsible for administering Chapters 51 (relating to distilled spirits, wine, and beer) and 52 (relating to tobacco products and cigarette papers and tubes) of title 26 U.S.C., the Internal Revenue Code of 1986, as amended. TTB also administers sections 4181 and 4182 (relating to the excise tax on firearms and ammunition) of the Internal Revenue Code of 1986 and title 27 U.S.C. (relating to alcohol).

Section 1512 of the Homeland Security Act of 2002 authorized TTB to continue its operations under completed administrative actions taken by ATF until such actions are amended, modified, superseded, terminated, set aside, or revoked in accordance with law. As of January 24, 2003, the following Privacy Act systems of records notices were in effect for ATF records:

ATF .001—Administrative Record System;

ATF .002—Correspondence Record System;

ATF .003—Criminal Investigation Report System;

ATF .007—Personnel Record System;

ATF .008—Regulatory Enforcement Record System; and

ATF .009—Technical and Scientific Services Record System.

Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, and Office of Management and Budget (OMB) Circular No. A-130, TTB has completed a review of its current records to determine which records are Privacy Act systems of records. The Privacy Act system of records formerly entitled “Treasury/ATF .008-Regulatory Enforcement Record System” will be maintained by TTB under the title “Treasury/TTB .001-Regulatory Enforcement Record System.”

The following systems of records are being removed from the Department of the Treasury's Privacy Act systems of records inventory:

ATF .001—Administrative Record System;

ATF .002—Correspondence Record System;

ATF .003—Criminal Investigation Report System;

ATF .007—Personnel Record System; and

ATF .009—Technical and Scientific Services Record System.

Note that while ATF .001 and ATF .002 are part of the current Department of the Treasury systems of records inventory and are being deleted from that inventory pursuant to a separate notice, these two systems are not part of the list of exempt systems of records in 31 CFR 1.36. Therefore, these two systems do not need to be deleted from the list of exempt systems as part of the interim rule amendment of section 1.36.

The Department of the Treasury as part of this action is also amending 31 CFR 1.20(b) to reflect the organizational change in the scope of its Privacy Act regulations by revising the title of the bureau from “Bureau of Alcohol, Tobacco and Firearms” to “Alcohol and Tobacco Tax and Trade Bureau.”

Pursuant to 5 U.S.C. 552a(k)(2), the Department of the Treasury hereby exempts “Treasury/TTB .001-Regulatory Enforcement Record System” from the following provisions of 5 U.S.C. 552a: 5 U.S.C. 552a(c)(3), 5 U.S.C. 552a(d)(1), (2), (3), and (4), 5 U.S.C. 552a(e)(1), 5 U.S.C. 552a(e)(4)(G), (H), and (I), and 5 U.S.C. 552a(f).

As set out in 31 CFR 1.36(h), the Department exempts this system of records from these provisions of 5 U.S.C. 552a for the following reasons:

(1) 5 U.S.C. 552a(c)(3) requires an agency to make accountings of disclosures of a record available to the individual named in the record upon his or her request. The accountings must state the date, nature, and purpose of each disclosure of the record and the name and address of the recipient.

(i) The application of this provision would impair the ability of the Department and of law enforcement agencies outside the Department of the Treasury to make effective use of information maintained by the Department. Making accountings of disclosures available to the subjects of an investigation would alert them to the fact that an agency is conducting an investigation into their illegal activities and could reveal the geographic location of the 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 illegal activities to other geographical areas, or by destroying or concealing evidence that would form the basis for detection or apprehension. In the case of a delinquent account, such release might enable the subject of the investigation to dissipate assets before levy.

(ii) Providing accountings to the subjects of investigations would alert them to the fact that the Department has information regarding their illegal activities and could inform them of the general nature of that information.

(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 systems of records would compromise the Department's ability to utilize and provide useful tactical and strategic information to law enforcement agencies.

(i) Permitting access to records contained in the systems of records 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 detection or apprehension;

(B) Enabling them to destroy or alter evidence of illegal conduct that would form the basis for their detection or apprehension, and

(C) Using knowledge that investigators had reason to believe that a violation of law was about to be committed, to delay the commission of the violation or commit it at a location that might not be under surveillance.

(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 non-criminal acts to structure their operations so as to avoid detection or apprehension.

(iii) Permitting access to investigative files and records could, moreover, disclose the identity of confidential sources and informers and the nature of the information supplied and thereby endanger the physical safety of those sources by exposing them to possible reprisals for having provided the information. Confidential sources and informers might refuse to provide 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 the Department's ability to carry out its mandate.

(iv) Furthermore, providing access to records contained in the systems of records could reveal the identities of undercover law enforcement officers or other persons who compiled information regarding the individual's illegal activities and thereby endanger the physical safety of those undercover officers, persons, or their families by exposing them to possible reprisals.

(v) By compromising the law enforcement value of the systems of records for the reasons outlined in 31 CFR 1.36(h)(2)(i) through (iv), permitting access in keeping with these provisions would discourage other law enforcement and regulatory agencies, foreign and domestic, from freely sharing information with the Department and thus would restrict the Department's access to information necessary to accomplish its mission most effectively.

(vi) Finally, the dissemination of certain information that the Department may maintain in the systems of records is restricted by law.

(3) 5 U.S.C. 552a(d)(2), (3) and (4), (e)(4)(H), and (f)(4) permit an individual to request amendment of a record pertaining to him or her and require the agency either to amend the record, or to note the disputed portion of the record and to provide a copy of the individual's statement of disagreement with the agency's refusal to amend a record to persons or other agencies to whom the record is thereafter disclosed. Since these provisions depend on the individual's having access to his or her records, and since these rules exempt the systems of records from the provisions of 5 U.S.C. 552a relating to access to records, for the reasons set out in 31 CFR 1.36(h)(2), these provisions should not apply to the systems of records.

(4) 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 system of records could impair the Department's ability to collect, utilize, and disseminate valuable law enforcement information.

(i) At the time that the Department collects information, it often lacks sufficient time to determine whether the information is relevant and necessary to accomplish a Department purpose.

(ii) In many cases, especially in the early stages of an investigation, it may be impossible immediately to determine whether information collected is relevant and necessary, and information that initially appears irrelevant and unnecessary often may, upon further evaluation or upon collation with information developed subsequently, prove particularly relevant to a law enforcement program.

(iii) Not all violations of law discovered by the Department analysts fall within the investigative jurisdiction of the Department of the Treasury. To promote effective law enforcement, the Department 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, the Department 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 the Department's attention during the collation and analysis of information in its records.

(5) 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 systems of records 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 the Department'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.

(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 systems of records could compromise the Department's ability to complete or continue investigations or 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 investigators for fear of having their identities as sources disclosed.

Currently, § 1.36 asserts exemptions for four systems of records pursuant to 5 U.S.C. 552a(j)(2), (k)(2), and (k)(5). Three of those systems of records are being removed from the Department's inventory of Privacy Act systems of records. The remaining system of records, entitled “Treasury/ATF .008—Regulatory Enforcement Record System,” will be maintained by TTB under the revised designation “Treasury/TTB .001—Regulatory Enforcement Record System” and will retain the exemption currently claimed for that system pursuant to 5 U.S.C. 552a(k)(2). Under 5 U.S.C. 552a(k)(2), the head of an agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system contains investigatory material compiled for law enforcement purposes.

This interim rule revises the relevant headings and tables in 31 CFR 1.36 to reflect the organizational changes made by the Homeland Security Act of 2002 and the resulting changes to the systems of records discussed above. Specifically, in paragraphs 1.36(c)(1)(ii), (g)(1)(ii), and (m)(1)(ii), the references to “Bureau of Alcohol, Tobacco and Firearms” are revised to read “Alcohol and Tobacco Tax and Trade Bureau,” and the tables in paragraphs (c)(1)(ii), listing “ATF .003 Criminal Investigation Report System,” and (m)(1)(ii), listing “ATF .007 Personnel Record System,” are removed in their entirety. Also, in the table in paragraph (g)(1)(ii), “ATF .008” is revised to read “TTB .001” and “ATF .009 Technical and Scientific Services Record System” is being removed. In addition, we take this opportunity to correct two typographical errors by correcting “U.S.C. 552a” to read “5 U.S.C. 552a” at the beginning of paragraphs (h)(5) and (j)(5).

These regulations are being published as an interim final rule because the amendments contained therein do not impose any requirements on any member of the public. These amendments are the most efficient means for the Department to implement its internal requirements for complying with the Privacy Act. Accordingly, pursuant to 5 U.S.C. 553(b)(B) and (d)(3), the Department finds good cause that prior notice and other public procedures with respect to this rule are unnecessary, and good cause for making this interim final rule effective 30 days after publication in the Federal Register.

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

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act, 5 U.S.C. 601-612, do not apply.

List of Subjects in 31 CFR Part 1

• Privacy

PART 1—[AMENDED]

Subpart C—Privacy Act

Part 1 of title 31 of the Code of Federal Regulations is amended as follows:

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

Authority: 5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued under 5 U.S.C. 552 as amended. Subpart C also issued under 5 U.S.C. 552a.

2. Section 1.20 is amended by revising paragraph (b) to read as follows:

§ 1.20

Purpose and scope of regulations.

* * * * *

(b) Alcohol and Tobacco Tax and Trade Bureau.

* * * * *

3. Section 1.36 of subpart C is amended by revising paragraphs (c)(1)(ii) and (g)(1)(ii), removing the reference “U.S.C. 552a” from paragraphs (h)(5) introductory text and (j)(5) introductory text and adding “ 5 U.S.C. 552a” in its place, and revising paragraph (m)(1)(ii) to read as follows:

§ 1.36

Systems exempt in whole or in part from provisions of 5 U.S.C. 552a and this part.

* * * * *

(c) * * *

(1) * * *

(ii) Alcohol and Tobacco Tax and Trade Bureau.

* * * * *

(g) * * *

(1) * * *

(ii) Alcohol and Tobacco Tax and Trade Bureau:

Number	Name of system
TTB .001	Regulatory Enforcement Record System.

* * * * *

(m) * * *

(1) * * *

(ii) Alcohol and Tobacco Tax and Trade Bureau.

* * * * *

Dated: July 23, 2008.

Peter B. McCarthy,

Assistant Secretary for Management and Chief Financial Officer.