[Federal Register Volume 63, Number 227 (Wednesday, November 25, 1998)]
[Rules and Regulations]
[Pages 65060-65062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31502]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[AAG/A Order No. 155-98]


Exemption of System of Records Under the Privacy Act

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice, Federal Bureau of Investigation, is 
exempting 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 purposes of the exemptions 
are to maintain the confidentiality and security of information 
compiled for purposes of criminal or other law enforcement 
investigation, or of reports compiled at any stage of the law 
enforcement process. The exemptions are necessary because some 
information in NICS is from law enforcement records, and may (in the 
case of NICS denials, for example) relate to additional law enforcement 
interest. 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.

EFFECTIVE DATE: November 25, 1998.

FOR FURTHER INFORMATION CONTACT: Patricia E. Neely, Program Analyst 
(202) 616-0178.

SUPPLEMENTARY INFORMATION: This rule finalizes a proposed rule 
published in the Federal Register with an invitation to comment on June 
4, 1998 (63 FR 30429). The FBI accepted comments on the proposed rule 
from interested parties dated on or before July 6, 1998.

Significant Comments

    A number of comments raised matters that were more pertinent to 
other notices of proposed rulemaking relating to the NICS: The National 
Instant Criminal Background Check System Regulation published in the 
Federal Register on June 4, 1998 (63 FR 30430), and the National 
Instant Criminal Background Check System User Fee Regulation, published 
in the Federal Register on August 17, 1998 (63 FR 43893). Such comments 
are addressed in the final NICS rule, the National Instant Criminal 
Background Check System Regulation, published in the Federal Register 
on October 30, 1998 (63 FR 58303). Other comments raised

[[Page 65061]]

matters that were more pertinent to the notice of the establishment of 
the NICS as a new system of records, the National Instant Criminal 
Background Check System (NICS) JUSTICE/FBI-018, published in the 
Federal Register on June 4, 1998 (63 FR 30514). Such comments are 
addressed in a revised NICS records system notice, the National Instant 
Criminal Background Check System (NICS) JUSTICE/FBI-018, published in 
the notices section of today's Federal Register.
    Several comments questioned the authority for exempting records in 
the NICS. One comment pointed out that certain records in the NICS 
might not meet the Privacy Act's requirements for exemptions and should 
therefore not be subject to exemptions. As in the proposed rule, the 
final rule specifically states that exemptions will apply only to the 
extent that information in the system is subject to exemption. The 
comment questioned whether even records relating to criminal matters 
would be exempt. Case law has established that criminal records do not 
lose their exempt status even if replicated in a non-criminal law 
system. (Likewise, other law enforcement records would retain any 
exempt status even if replicated in a non-law enforcement system.) In 
addition, however, to the extent it bears on possible violations of the 
Brady Act, the Gun Control Act (19 U.S.C. Chapter 44), or the National 
Firearms Act (26 U.S.C. Chapter 53), information in the NICS may 
comprise law enforcement material in its own right. For instance, NICS 
denials presumptively relate to an illegal attempt to acquire a firearm 
in violation of federal law. Even information on approved transactions 
(which the NICS destroys after a limited time) may implicate law 
enforcement interests, for example, where audits identify instances in 
which the NICS is used for unauthorized purposes, such as running 
checks of people other than actual gun transferees, or where potential 
handgun transferees or transferors have submitted false identification 
information to thwart the name check system. One comment suggested that 
the rule more clearly delineate which NICS records would be subject to 
exemptions. The Privacy Act itself delineates exemption requirements, 
and based on the FBI's long experience with similar provisions of other 
FBI records systems, the proposed language is fully sufficient to guide 
government officials and preclude adverse impact on individual rights.
    Other comments addressed specific exemptions. Several comments 
objected to the NICS being exempted from 5 U.S.C. 552a(c)(3), which 
permits an individual to request access to an accounting of certain 
disclosures of records about the individual. Release of an accounting 
of disclosures would place an individual on notice of the existence of 
an outside interest in his or her activities. This would be of 
particular concern for situations involving NICS denials, which may 
presumptively indicate an attempted violation of federal criminal law. 
Even information on approved transactions (which the NICS destroys 
after a limited time) may implicate law enforcement interests, for 
example, where audits identify instances in which the NICS is used for 
unauthorized purposes, such as running checks of people other than 
actual gun transferees, or where potential handgun transferees or 
transferors have submitted false identification information to thwart 
the name check system. Releases of accountings could result in 
destruction of evidence, intimidation or endangerment of witnesses and 
victims, flight of the subject from the area, or other activities that 
would seriously impede law enforcement investigations.
    Several comments in essence objected to the NICS' being exempted 
from 5 U.S.C. 552a(d) and (e)(4) (G) and (H), which permit an 
individual to request access to (and amendment of) records about the 
individual. Access to system records subject to exemption 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. In addition, requiring the FBI to amend 
information thought to be not accurate, timely, relevant, and complete, 
because of the nature of the information collected and the length of 
time it is maintained, would create an impossible administrative burden 
by forcing the agency to continuously update its investigations 
attempting to resolve these issues. Individuals concerned with the 
accuracy of records maintained about them remain free to avail 
themselves of any means for access or amendment applicable to the 
record sources, and record contributors have a continuing 
responsibility to delete or update contributions determined to be 
invalid or incorrect (see 28 CFR 25.5(b)). Moreover, the NICS itself 
provides an alternate procedure for amending erroneous records 
resulting in transfer denials (28 CFR 25.10).
    One comment objected to the NICS being exempted from 5 U.S.C. 
552a(e)(1) and (5), which require that an agency maintain only relevant 
records necessary to accomplish the system's purpose and with such 
accuracy, relevance, timeliness, and completeness as is reasonably 
necessary to assure fairness to the individual. Without this exemption, 
the NICS might be prevented from acquiring data not shown to be 
accurate, relevant, timely, and complete at the moment of its 
acquisition by the NICS. This exemption is necessary because it is 
impossible to predict when and for whom it will be necessary to use the 
information in the NICS, and, accordingly, it is not possible to 
determine in advance when the records will be timely or relevant. 
Relevance and necessity are questions of circumstance and timing, and 
it is only after the information is evaluated that the relevance and 
necessity of the information can be established. In addition, since 
most of the records are from state, local, and other federal agency 
record systems, it would be impossible to review all of the records as 
they are submitted to verify their accuracy. However, as previously 
discussed, affected persons remain free to avail themselves of any 
means for addressing accuracy, timeliness, or completeness applicable 
to the record sources, and record contributors have a continuing 
responsibility to delete or update contributions determined to be 
invalid or incorrect (see 28 CFR 25.5(b)). In addition, the Department 
and the FBI have made efforts to enhance the quality of NICS records. 
Using funding authorized by the Brady Act, section 106(b), the 
Department has provided substantial assistance to the states for the 
purpose of improving their criminal history record systems. The FBI 
will be responsible for maintaining data integrity during NICS 
operations managed and carried out by the FBI, including the conduct of 
periodic quality control checks to verify that the information provided 
to the NICS Index remains valid and correct (28 CFR 25.5(a)). Finally, 
the NICS itself provides an alternate procedure for amending erroneous 
records resulting transfer denials (28 CFR 25.10).
    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

[[Page 65062]]

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

    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, 28 
CFR part 16 is amended as set forth below.

    Dated: November 19, 1998.
Stephen R. Colgate,
Assistant Attorney General for Administration.

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. 28 CFR 16.96 is 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) and (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 subsections (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 
update its investigations attempting to resolve these issues.
    (iii) Although the Attorney General is exempting this system from 
subsections (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 is 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, an 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. 98-31502 Filed 11-24-98; 8:45 am]
BILLING CODE 4410-02-P