Exemption of System of Records Under the Privacy Act

DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 152-98]

Exemption of System of Records Under the Privacy Act

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice, Federal Bureau of Investigation,

proposes to exempt the National Instant Criminal Background Check

System (NICS) from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (2), and

(3); (e)(4)(G) and (H); (e)(5) and (8); and (g). The purpose of the

proposed rule is to exempt the NICS from certain requirements of the

Privacy Act for the reasons specified below. The exemptions are

necessary because some information in NICS is from law enforcement

records. Therefore, to the extent that they may be subject to exemption

under subsections (j)(2), (k)(2), and (k)(3), these records are not

available under the Privacy Act and not subject to certain of its

procedures such as obtaining an accounting of disclosures,

notification, access, or amendment/correction.

DATES: Comments must be submitted on or before July 6, 1998.

ADDRESSES: All comments should be submitted to Patricia E. Neely,

Program Analyst, Information Management and Security Staff, Justice

Management Division, Department of Justice, Washington, DC 20530 (Room

850, WCTR Building).

FOR FURTHER INFORMATION CONTACT:

Patricia E. Neely, (202) 616-0178.

SUPPLEMENTARY INFORMATION: In the notice section of today's Federal

Register, the Department of Justice provides a description of the

``National Instant Criminal Background Check System (NICS), JUSTICE/

FBI-018.'' Also in the rules section of today's Federal Register, the

Department of Justice provides 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.

This order relates to individuals rather than small business

entities

round Check System (NICS), JUSTICE/

FBI-018.'' Also in the rules section of today's Federal Register, the

Department of Justice provides 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.

This order relates to individuals rather than small business

entities. Nevertheless, pursuant to the requirements of the Regulatory

Flexibility Act, 5 U.S.C. 601-612, it is hereby stated that this order

will not have ``a significant economic impact on a substantial number

of small entities.''

List of Subjects in 28 CFR Part 16

Administrative Practices and Procedures, Courts, Freedom of

Information Act, Government in the Sunshine Act, and the Privacy Act.

Dated: May 7, 1998.

Stephen R. Colgate,

Assistant Attorney General for Administration.

Pursuant to the authority vested in the Attorney General by 5

U.S.C. 552a and delegated to me by Attorney General Order 793-78, it is

proposed to revise 28 CFR part 16, as set forth below.

PART 16--[AMENDED]

1. The authority for part 16 continues to read as follows:

Authority: 5. U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C.

4203 (a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.

2. It is proposed that 28 CFR 16.96 be amended by adding paragraphs

(p) and (q) to read as follows:

Sec. 16.96 Exemption of Federal Bureau of Investigation (FBI)

Systems--limited access.

* * * * *

(p) The National Instant Criminal Background Check System (NICS),

(JUSTICE/FBI-018), a Privacy Act system of records, is exempt:

(1) Pursuant to 5 U.S.C. 552a(j)(2), from subsections (c) (3) and

(4); (d); (e) (1), (2), (3); (e)(4) (G) and (H); (e) (5) and (8); and

(g); and

(2) Pursuant to 5 U.S.C. 552a(k) (2) and (3), from subsections (c)

(3), (d), (e) (1), and (e)(4) (G) and (H).

(q) These exemptions apply only to the extent that information in

the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2),

pt:

(1) Pursuant to 5 U.S.C. 552a(j)(2), from subsections (c) (3) and

(4); (d); (e) (1), (2), (3); (e)(4) (G) and (H); (e) (5) and (8); and

(g); and

(2) Pursuant to 5 U.S.C. 552a(k) (2) and (3), from subsections (c)

(3), (d), (e) (1), and (e)(4) (G) and (H).

(q) These exemptions apply only to the extent that information in

the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2),

(k)(2), and (k)(3). Exemptions from the particular subsections are

justified for the following reasons:

(1) From subsection (c)(3) because the release of the accounting of

disclosures would place the subject on notice that the subject is or

has been the subject of investigation and result in a serious

impediment to law enforcement.

(2) From subsection (c)(4) to the extent that it is not applicable

since an exemption is claimed from subsection (d).

(3)(i) From subsection (d) and (e)(4) (G) and (H) because these

provisions concern an individual's access to records which concern the

individual and such access to records in the system would compromise

ongoing investigations, reveal investigatory techniques and

confidential informants, invade the privacy of persons who provide

information in connection with a particular investigation, or

constitute a potential danger to the health or safety of law

enforcement personnel.

(ii) In addition, from subsection (d)(2) because, to require the

FBI to amend information thought to be not accurate, timely, relevant,

and complete, because of the nature of the information collected and

the essential length of time it is maintained, would create an

impossible administrative burden by forcing the agency to continuously

retrograde its investigations attempting to resolve these issues.

(iii) Although the Attorney General is exempting this system from

subsection (d) and (e)(4) (G) and (H), an alternate method of access

and correction has been provided in 28 CFR, part 25, subpart A.

essential length of time it is maintained, would create an

impossible administrative burden by forcing the agency to continuously

retrograde its investigations attempting to resolve these issues.

(iii) Although the Attorney General is exempting this system from

subsection (d) and (e)(4) (G) and (H), an alternate method of access

and correction has been provided in 28 CFR, part 25, subpart A.

(4) From subsection (e)(1) because it is impossible to state with

any degree of certainty that all information in these records is

relevant to accomplish a purpose of the FBI, even though acquisition of

the records from state and local law enforcement agencies is based on a

statutory requirement. In view of the number of records in the system,

it is impossible to review them for relevancy.

(5) From subsections (e) (2) and (3) because the purpose of the

system is to verify information about an individual. It would not be

realistic to rely on information provided by the individual. In

addition, much of the information contained in or checked by this

system from Federal, State, and local criminal history records.

(6) From subsection (e)(5) because it is impossible to predict when

it will be necessary to use the information in the system, and,

accordingly, it is not possible to determine in advance when the

records will be timely. Since most of the records are from State and

local or other Federal agency records, it would be impossible to review

all of them to verify that they are accurate. In addition, no alternate

procedure is being established in 28 CFR, part 25, subpart A, so the

records can be amended if found to be incorrect.

(7) From subsection (e)(8) because the notice requirement could

present a serious impediment to law enforcement by revealing

investigative techniques and confidential investigations.

(8) From subsection (g) to the extent that, pursuant to subsections

n addition, no alternate

procedure is being established in 28 CFR, part 25, subpart A, so the

records can be amended if found to be incorrect.

(7) From subsection (e)(8) because the notice requirement could

present a serious impediment to law enforcement by revealing

investigative techniques and confidential investigations.

(8) From subsection (g) to the extent that, pursuant to subsections

(j)(2), (k)(2), and (k)(3), the system is exempted from the other

subsections listed in paragraph (p) of this section.

[FR Doc. 98-14796 Filed 6-3-98; 8:45 am]

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