[Federal Register Volume 63, Number 107 (Thursday, June 4, 1998)]
[Proposed Rules]
[Pages 30429-30430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14796]
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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. 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.
[[Page 30430]]
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),
(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.
(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
(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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