Privacy Act of 1974; Notice of New System of Records

DEPARTMENT OF JUSTICE

[AAG/A Order No. 151-98]

Privacy Act of 1974; Notice of New System of Records

Pursuant to the provisions of the Privacy Act of 1974 (5 U.S.C.

552a), notice is hereby given that the Department of Justice proposes

to establish a new system of records to be

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maintained by the Federal Bureau of Investigation (FBI).

The National Instant Criminal Background Check System (NICS)

JUSTICE/FBI-018, is a new system of records for which no public notice

consistent with the provision of 5 U.S.C. 552a(e)(4) and (11) has been

published.

In the rules section of today's Federal Register, the Department of

Justice provides a proposed rule exempting the NICS from certain

provisions of the Privacy Act, as well as proposed rules to establish

policies and procedures for operating the system, ensuring the privacy

and security of the NICS, and implementing its alternative access and

appeal provisions.

In accordance with 5 U.S.C. 552a(e)(4) and (11), the public is

given a 30-day period in which to comment on the new routine uses; the

Office of Management and Budget (OMB), which has oversight

responsibility under the Act, requires a 40-day period in which to

conclude its review of the system. Therefore, please submit any

comments by July 6, 1998. The public, OMB, and the Congress are invited

to submit any comments to Patricia E. Neely, Program Analyst,

Information Management and Security Staff, Justice Management Division,

Department of Justice, Washington, DC 20530 (Room 850, WCTR Building).

In accordance with 5 U.S.C. 552a(r), the Department has provided a

report to OMB and the Congress.

Dated: May 7, 1998.

Stephen R. Colgate,

Assistant Attorney General for Administration.

JUSTICE/FBI-018

SYSTEM NAME:

National Instant Criminal Background Check System (NICS).

SYSTEM LOCATION:

Federal Bureau of Investigation, 1000 Custer Hollow Road,

Clarksburg, West Virginia 26306.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

The categories of individuals covered by the system include any

person who:

A. Is under indictment for, or has been convicted in any court of,

a crime punishable by imprisonment for a term exceeding one year;

B. Is a fugitive from justice;

C. Is an unlawful user of or addicted to any controlled substance;

D. Has been adjudicated as a mental defective or has been committed

to a mental institution;

E. Is an alien who is illegally or unlawfully in the United States;

F. Has been discharged from the Armed Forces under dishonorable

conditions;

G. Having been a citizen of the United States, has renounced such

citizenship;

H. Is subject to a court order that restrains the person from

harassing, stalking, or threatening an intimate partner or child of

such intimate partner (issued after a hearing of which actual notice

was received);

I. Has been convicted in any court of a misdemeanor crime of

domestic violence (involving the use or attempted use of physical force

committed by a current or former spouse, parent, or guardian of the

victim or by a person with a similar relationship with the victim);

J. Is otherwise disqualified from possessing a firearm under State

law;

K. Is a Federal firearms licensee (FFL), i.e., a person licensed by

the Bureau of Alcohol, Tobacco and Firearms (ATF), United States

Department of Treasury, as a manufacturer, dealer, or importer of

firearms, and authorized by the FBI to request NICS background checks;

or

L. Has applied for the purchase of a firearm or a firearms-related

permit or license and has had his or her name forwarded to the NICS as

part of a request for a NICS background check. (Identifying information

about this category of individual is maintained for system

administration and security purposes only in the ``NICS Audit Log,'' a

system transaction log described below under the headings ``CATEGORIES

OF RECORDS IN THE SYSTEM'' AND ``RETENTION AND DISPOSAL.'' In cases

where the NICS background check does not locate a disqualifying record,

information about the individual will only be retained temporarily for

audit purposes and will be destroyed after eighteen months. The system

will not contain any details about the type of firearm which is the

subject of the proposed transfer (other than the fact that it is a

handgun or a long gun) or whether a sale or transfer of a firearm has

actually taken place.)

CATEGORIES OF RECORDS IN THE SYSTEM:

The ``NICS Index'' is the only database maintained by the FBI which

was created specifically for the NICS. The NICS Index contains records

obtained by the Attorney General from Federal agencies or States on

individuals who fall into the categories of individuals listed above

under the hearing ``CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM,''

C through G. These records contain an individual's name; sex; race;

complete date of birth; state of residence; sometimes a unique

identifying number, such as a Social Security number (but NICS does not

require it to be furnished), a military number, or a number assigned by

Federal, State, or local law enforcement authorities.

The ``NICS Audit Log'' is a chronological record of system

(computer) activities that enables the reconstruction and examination

of a sequence of events and/or changes in an event related to the NICS.

With regard to a specific NICS transaction, the audit log will include:

the name and other identifying information about the prospective

purchaser; the type of transaction (inquiry or response); line number;

time; date of inquiry; header; message key; Originating Agency

Identifier; and inquiry/response data, such as a NICS Transaction

Number (a unique number assigned to each valid background request

inquiry) and information found by the NICS search.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

(1) 18 U.S.C. 922, as amended by the Brady Handgun Violence

Prevention Act (the ``Brady Act'') (Pub. L. 103-159, Nov. 30, 1993);

(2) 28 U.S.C. 534, as amended (Pub. L. 103-322, Title IV, 4060(a), Sep.

13, 1994, 105 Stat. 1950).

PURPOSE(S):

The purpose of the NICS, which was established pursuant to the

Brady Act, is to provide a means of checking available information to

determine whether there is reasonable cause to believe that a person is

disqualified from possessing a firearm under Federal or State law.

Prior to the transfer of a firearm, a prospective purchaser, not

licensed under 18 U.S.C. 923, must obtain a firearms transaction form

from an FFL and provide the information required by the ATF. The

firearms transaction form is returned to the FFL, who is required by

the Brady Act to contact the NICS and furnish the name and certain

other identifying data provided by the purchaser. NICS conducts a

search which compares the information about the purchaser with

information in or available to NICS.

State and local law enforcement agencies serve as Points of Contact

(POCs) for the NICS. Where there is no POC, the FBI's NICS Operations

Center serves in its place. The POC (or the NICS Operations Center)

receives inquiries from FFLs, initiates NICS background searches, may

check available state and local record systems, determines whether

matching records provide reason to believe that an individual is

disqualified from possessing a firearm under Federal or

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State law, and responds back to the FFLs.

In addition to a review of the NICS Index, a NICS search includes a

review of the pre-existing, separately-managed FBI criminal history

databases of the National Crime Information Center (NCIC)(JUSTICE/FBI-

001), including the Interstate Identification Index (III) portion of

NCIC, to the extent such searches are possible with the available

information. NCIC and III are cooperative Federal-State programs for

the exchange of criminal history record and other information among

criminal justice agencies to locate wanted and missing persons and for

other identification purposes. The search conducted of the NCIC and

III, in conjunction with the search of the NICS Index, attempts to

locate only information indicating that an individual firearm purchaser

is identical to an individual in one or more of categories A through J

listed above under the heading CATEGORIES OF INDIVIDUALS IN THE SYSTEM,

with the search of NCIC and III specifically directed towards locating

information that an individual is within categories A, B, H, and I.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES

OF USERS AND THE PURPOSES OF SUCH USES:

A. Limited information may be provided by a Point of Contact or the

NICS Operations Center to an FFL who has contacted the NICS concerning

a prospective firearm purchaser. If a matching record found by the NICS

provides reasonable cause to believe that the prospective purchaser is

disqualified from possessing a firearm under Federal or State law, the

FFL will be notified only that the application is ``denied,'' with none

of the underlying information provided. If additional record analysis

is required by the NICS representative, the response may read

``delayed.'' If no disqualifying record is located by the NICS, the FFL

will be told to ``proceed.'' A unique identification number will be

provided to the FFL for all responses received from the NICS, which

number shall be recorded on the firearms transaction form.

B. Information in the NICS may be provided through the NCIC lines

to Federal criminal justice agencies, criminal justice agencies in the

fifty States, the District of Columbia, Puerto Rico, U.S. Possessions,

and U.S. Territories, including Points of Contact and contributors of

information in the NICS Index, to enable them to determine whether the

transfer of a firearm to any person not licensed under 18 U.S.C. 923

would be in violation of Federal or State law; whether the issuance of

a license or permit for the possession or sale of a firearm or firearms

would be in violation of Federal or State law or regulation; whether

appeals from denials should be granted or denied; and whether to add

to, delete from, revise, or update information previously provided by

the contributor.

C. If, during the course of any activity or operation of the system

authorized by the regulations governing the system (28 CFR, part 25,

subpart A), any record is found by the system which indicates, either

on its face or in conjunction with other information, a violation or

potential violation of law (whether criminal or civil) and/or

regulation, or a violation or potential violation of a contract, the

pertinent record may be disclosed to the appropriate agency/

organization/task force (whether Federal, State, local, joint, or

tribal) and/or to the appropriate foreign or international agency/

organization charged with the responsibility of investigating,

prosecuting, and/or enforcing such law, regulation, or contract, e.g.,

disclosure of information from the system to the ATF, United States

Department of Treasury, regarding violations or potential violations of

18 U.S.C. 922(a)(6).

D. System records may be disclosed to contractors, grantees,

experts, consultants, volunteers, detailees, and other non-FBI

employees performing or working on a contract, service, grant,

cooperative agreement, or job for the Federal Government when necessary

to accomplish an agency function related to this system of records and

under requirements (including Privacy Act requirements) specified by

the FBI.

E. System records may be disclosed to the news media or members of

the general public or to a victim or potential victim in furtherance of

a legitimate law enforcement or public safety function, e.g., to assist

in locating fugitives; to provide notification of arrests; to provide

alerts, assessments, or similar information on potential threats to

life, health, or property; or to keep the public appropriately informed

of other law enforcement or FBI matters of legitimate public interest

in accordance with 28 CFR 50.2. System records may also be disclosed to

the news media or general public in other situations of legitimate

public interest where disclosure would not constitute a clearly

unwarranted invasion of personal privacy.

F. Where the disclosure of system records has been determined by

the FBI to be reasonable and necessary to resolve a matter in

litigation or in anticipation thereof, such records may be disclosed to

a court or adjudicative body, before which the FBI is authorized to

appear, when: (a) The FBI or any FBI employee in his or her official

capacity; (b) any FBI employee in his or her individual capacity where

the Department of Justice has agreed to represent the employee; or (c)

the United States, where the FBI determines it is likely to be affected

by the litigation, is or could be a party to the litigation, or has an

official interest in the litigation.

G. System records may be made available to a Member of Congress or

staff acting on the Member's behalf when the Member or staff requests

the information on behalf and at the written request of the individual

who is the subject of the record.

H. System records may be disclosed to the National Archives and

Records Administration for records management inspections and such

other purposes conducted under the authority of 44 U.S.C. 2904 and

2906.

Policies and Practices for Storing, Retrieving, Accessing, Retaining,

and Disposing of Records in the System:

Storage:

Records are stored electronically for use in a computer environment

in areas safe from access by unauthorized persons or exposure to

environmental hazards. In general, the security policy for the NCIC

(JUSTICE/FBI-001) is followed.

Retrievability:

Records are retrieved by name, sex, race, date of birth, state of

residence, the NICS Transaction Number, FFL number, and, in some

instances, unique numeric identifier, e.g., a Social Security number or

a military identification number. (A Social Security number is not

required by the NICS.)

Safeguards:

Records searched by the NICS are located in secure government

buildings with limited physical access. Access to the results of a NICS

record search is further restricted to authorized employees of Federal,

State, and local law enforcement agencies who make inquiries by use of

identification numbers and passwords.

When a Federal, State, or local agency places information in the

NICS Index, it uses its agency identifier and a unique agency record

identifier for each record provided to the NICS. Federal, State, or

local agencies can modify or cancel only the data that they have

provided to NICS Index.

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Retention and Disposal:

Information provided by other Federal agencies or State or local

governments will be maintained in the NICS Index unless updated or

deleted by the agency/government which contributed the data.

The FBI will maintain an Audit Log of all NICS transactions.

Firearms transaction approvals will be maintained for eighteen months.

The NICS Transaction Number (the unique number assigned to the NICS

transaction) and the date on which it was assigned will be maintained

indefinitely. Information related to firearms transfer denials will be

retained for 10 years and then disposed of as directed by the National

Achives and Record Administration.

System Manager(s) and Address:

Director, Federal Bureau of Investigation, J. Edgar Hoover FBI

Building, 935 Pennsylvania Avenue, NW, Washington, DC 20535-0001.

NOTIFICATION PROCEDURES:

This system of records has been exempted from the notification

procedures of subsections (d) and (e)(4)(G), to the extend permitted by

subsections (j)(2),(k)(2), and (k)(3) of the Privacy Act. Requests for

notification should be addressed to the Systems Manager. Requirements

for a request are the same as set forth below under the heading

``RECORD ACCESS PROCEDURES.''

RECORD ACCESS PROCEDURES:

This system of records has been exempted from the access procedures

of subsections (d) and (e)(4)(H) to the extend permitted by subsections

(j)(2),(k)(2), and (k)(3) of the Privacy Act. A request for access to a

non-exempt record from the system should be addressed to the System

Manager, shall be made in writing, and should have the envelope and the

letter marked ``Privacy Act Request.'' The request must include the

full name, complete address, date of birth, and place of birth of the

requester. The requester must sign the request; and, to verify it, the

signature must be notarized or submitted under 28 U.S.C. 1746, a law

that permits statements to be made under penalty of perjury as a

substitute for notarization.

Alternative procedures are available to a person who has been

denied the purchase of, or permit for, a firearm because of information

in the NICS. The procedures provide for an appeal of a denial and a

method to seek the correction of erroneous data searched by or

maintained in the system. The alternative procedures can be found at 28

CFR, Part 25, Subpart A.

CONTESTING RECORD PROCEDURES:

This system of records has been exempted from the contest and

amendment procedures of subsections (d) and (e)(4)(H) to the extent

permitted by subsections (j)(2),(k)(2), and (k)(3) of the Privacy Act.

Requests should be addressed to the System Manager and should clearly

and concisely describe the precise information being contested, the

reasons for contesting it, and the proposed amendment or correction

proposed to the information. In addition, as described above under

``RECORD ACCESS PROCEDURES,'' an alternative procedure is available to

a person who has been denied the purchase of, or permit for, a firearm

because of information in the NICS, by which the individual may seek

the correction of erroneous data in the system. The procedures are

further described at 28 CFR, part 25, subpart A.

RECORD SOURCE CATEGORIES:

Information contained in the NICS is obtained from local, State,

Federal, and international records.

SYSTEM EXEMPTED FROM CERTAIN PROVISIONS OF THE ACT:

The Attorney General has exempted this system from subsections

(c)(3) and (4); (d); (e)(1); (2), and (3) (e)(4)(G) and (H); (e)(5) and

(8); and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2). In

addition, the Attorney General has exempted his system from subsections

(c)(3), (d), (e)(1), and (e)(4)(G) and (H) of the Privacy Act, pursuant

to 5 U.S.C. 552a (k)(2) and (k)(3). Rules have been promulgated in

accordance with the requirements of 5 U.S.C. 553 (b), (c), and (e), and

have been published in the Federal Register.

[FR Doc. 98-14797 Filed 6-3-98; 8:45 am]

BILLING CODE 4410-12-M