[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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