[Federal Register Volume 84, Number 181 (Wednesday, September 18, 2019)]
[Proposed Rules]
[Pages 49073-49075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19448]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 007-2019]


Privacy Act of 1974; Implementation

AGENCY: United States Department of Justice, Federal Bureau of 
Investigation.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Federal Bureau of Investigation (FBI), a component of the 
Department of Justice (Department or DOJ), has published a notice of a 
modified Privacy Act system of records, ``National Crime Information 
Center (NCIC),'' JUSTICE/FBI-001. In this notice of proposed 
rulemaking, the FBI proposes to amend the existing regulations 
exempting the NCIC from certain provisions of the Privacy Act in order 
to provide greater clarity on the reasons for the exemptions, including 
interference with the FBI's mission to detect, deter, and prosecute 
crimes and to protect the national security. Additionally, the NCIC's 
current Privacy Act exemption regulations refer to alternative 
procedures for individuals to access their criminal history record 
information. However, criminal history record information is maintained 
in the Next Generation Identification (NGI) System, JUSTICE_FBI 009, 
(May 5, 2016), and therefore the access provisions for criminal history 
record information are more appropriately set forth in the Privacy Act 
exemption regulations for NGI. The alternative process for accessing 
criminal history record information is set forth in the Code of Federal 
Regulations. The amendments to the NCIC's Privacy Act exemption 
regulations do not affect an individual's ability to access his 
criminal history record information. The Department proposes to amend 
its Privacy Act regulations by amending the existing Privacy Act 
exemptions for records in the NCIC, as set forth below. Public comment 
is invited.

DATES: Comments must be received by October 18, 2019.

ADDRESSES: You may send comments by any of the following methods:
     Email: [email protected]. To ensure proper 
handling, please reference the CPCLO Order No. in the subject line of 
the message.
     Fax: 202-307-0693. To ensure proper handling, please 
reference the CPCLO Order No. on the cover page of the fax.
     Mail: United States Department of Justice, Office of 
Privacy and Civil Liberties, ATTN: Privacy Analyst, 145 N St. NE, Suite 
8W-300, Washington, DC 20530. All comments sent via regular or express 
mail will be considered timely if postmarked on the day the comment 
period closes. To ensure proper handling, please reference the CPCLO 
Order No. in your correspondence.
     Federal eRulemaking Portal: http://www.regulations.gov. 
When submitting comments electronically, you must include the CPCLO 
Order No. in the subject box. Please note that the Department is 
requesting that electronic comments be submitted before midnight 
Eastern Daylight Savings Time on the day the comment period closes 
because http://www.regulations.gov terminates the public's ability to 
submit comments at that time. Commenters in time zones other than 
Eastern Time may want to consider this so that their electronic 
comments are received.
    Posting of Public Comments: Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at http://www.regulations.gov and in the Department's 
public docket. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter. If you want to submit personal identifying information 
(such as your name, address, etc.) as part of your comment, but do not 
want it to be posted online or made available in the public docket, you 
must include the phrase PERSONAL IDENTIFYING INFORMATION in the first 
paragraph of your comment. You must also place all personal identifying 
information that you do not want posted online or made available in the 
public docket in the first paragraph of your comment and identify what 
information you want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online or made available 
in the public docket, you must include the phrase CONFIDENTIAL BUSINESS 
INFORMATION in the first paragraph of your comment. You must also 
prominently identify confidential business information to be redacted 
within the comment. If a comment has so much confidential business 
information that it cannot be effectively redacted, all or part of that 
comment may not be posted online or made available in the public 
docket.
    Personal identifying information and confidential business 
information identified and located as set forth above will be redacted 
and the comment, in redacted form, may be posted online and placed in 
the Department's public docket file. Please note that the Freedom of 
Information Act applies to all comments received. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT paragraph, below.

FOR FURTHER INFORMATION CONTACT: Katherine M. Bond, Assistant General 
Counsel, Privacy and Civil Liberties Unit, Office of the General 
Counsel, FBI, 935 Pennsylvania Avenue NW, Washington, DC 20535-0001, 
telephone 202-324-3000.

SUPPLEMENTARY INFORMATION:

National Crime Information Center

    The FBI has established a modified Privacy Act system of records, 
``National Crime Information Center (NCIC),'' JUSTICE/FBI-001. 
Established in 1967, the NCIC is a national criminal justice 
information system linking criminal (and authorized non-criminal) 
justice agencies located in the 50 states, the District of Columbia, 
U.S. territories and possessions, and selected foreign countries to 
facilitate the cooperative sharing of criminal justice information. The 
NCIC provides a system to receive and maintain information contributed 
by participating agencies relating to criminal justice and national 
security. Information maintained in the NCIC is readily accessible for 
authorized criminal justice purposes by authorized users via text-based 
queries (i.e., using names and other descriptive data). The FBI has 
previously published exemptions from the Privacy Act for the NCIC. See 
28 CFR 16.96(g) through (i). In this notice of proposed rulemaking, the 
FBI proposes to amend the existing regulations exempting the NCIC from 
certain provisions of the Privacy Act in order to provide greater 
clarity on the reasons for the exemptions, including interference with 
the FBI's mission to detect, deter, and prosecute crimes and to protect 
the national security.

Executive Orders 12866 and 13563--Regulatory Review

    In accordance with 5 U.S.C. 552a(j) and 552a(k), this proposed 
action is subject to formal rulemaking procedures

[[Page 49074]]

by giving interested persons an opportunity to participate in the 
rulemaking process ``through submission of written data, views, or 
arguments,'' pursuant to 5 U.S.C. 553. The purpose of this proposed 
rule is to clarify the Privacy Act exemptions taken for the NCIC and 
explain the rationales therefore. This rule does not raise novel legal 
or policy issues, nor does it adversely affect the economy, the 
budgetary impact of entitlements, grants, user fees, loan programs, or 
the rights and obligations of recipients thereof in a material way. The 
Department of Justice has determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and accordingly this rule has not been reviewed by the Office of 
Information and Regulatory Affairs within the Office of Management and 
Budget pursuant to Executive Order 12866.

Regulatory Flexibility Act

    This proposed rule will only impact Privacy Act-protected records, 
which are personal and generally do not apply to an individual's 
entrepreneurial capacity, subject to limited exceptions. Accordingly, 
the Chief Privacy and Civil Liberties Officer, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact on a substantial number of small 
entities.

Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle 
E--Congressional Review Act)

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996, 5 U.S.C. 801 et seq., requires the FBI to comply with small 
entity requests for information and advice about compliance with 
statutes and regulations within FBI jurisdiction. Any small entity that 
has a question regarding this document may contact the person listed in 
the FOR FURTHER INFORMATION CONTACT paragraph, above. Persons can 
obtain further information regarding SBREFA on the Small Business 
Administration's web page at http://www.sba.gov/advo/archive/sum_sbrefa.html. This proposed rule is not a major rule as defined by 5 
U.S.C. 804 of the Congressional Review Act.

Executive Order 13132--Federalism

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This proposed regulation meets the applicable standards set forth 
in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
drafting errors and ambiguity, minimize litigation, provide a clear 
legal standard for affected conduct, and promote simplification and 
burden reduction.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    This proposed rule will have no implications for Indian Tribal 
governments. More specifically, it does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian tribes. 
Therefore, the consultation requirements of Executive Order 13175 do 
not apply.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000, as adjusted for inflation, or more in any one 
year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires 
that the FBI consider the impact of paperwork and other information 
collection burdens imposed on the public. There are no current or new 
information collection requirements associated with this proposed rule. 
The records that are contributed to this system are created by the FBI 
or other law enforcement and governmental entities. Sharing of this 
information electronically will not increase the paperwork burden on 
the public.

List of Subjects in 28 CFR Part 16

    Administrative Practices and Procedures, Courts, Freedom of 
Information, 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 2940-2008, 28 
CFR part 16 is proposed to be amended as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

0
1. The authority citation for part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 
534; 31 U.S.C. 3717.

0
2. Amend Sec.  16.96 by:
0
a. Revising paragraph (g) and (h) and
0
b. Removing paragraph (i).
    The revisions read as follows:


Sec.  16.96   Exemption of Federal Bureau of Investigation Systems--
limited access.

* * * * *
    (g) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G) (H), and 
(I), (e)(5), (e)(8), (f), and (g):
    (1) National Crime Information Center (NCIC) (JUSTICE/FBI-001).
    (2) These exemptions apply only to the extent that information in 
the system is subject to exemption pursuant to 5 U.S.C. 552a(j) and 
(k). Where the FBI determines compliance with an exempted provision 
would not appear to interfere with or adversely affect interests of the 
United States or other system stakeholders, the FBI in its sole 
discretion may waive an exemption in whole or in part; exercise of this 
discretionary waiver prerogative in a particular matter shall not 
create any entitlement to or expectation of waiver in that matter or 
any other matter. As a condition of discretionary waiver, the FBI in 
its sole discretion may impose any restrictions deemed advisable by the 
FBI (including, but not limited to, restrictions on the location, 
manner, or scope of notice, access or amendment).
    (h) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) the requirement that an accounting be 
made available to the named subject of a record, because this system is 
exempt from the access provisions of subsection (d). Also, because 
making available to a record subject the accounting of disclosures from 
records concerning him/her would specifically reveal law enforcement or 
national security investigative interest in the individual by the FBI 
or agencies that are recipients of the disclosures. Revealing this 
information could compromise ongoing, authorized law enforcement and 
intelligence efforts, particularly efforts to identify and defuse any 
potential acts

[[Page 49075]]

of terrorism or other potential violations of criminal law. Revealing 
this information could also permit the record subject to obtain 
valuable insight concerning the information obtained during any 
investigation and to take measures to circumvent the investigation 
(e.g., destroy evidence or flee the area to avoid investigation).
    (2) From subsection (c)(4) notification requirements because this 
system is exempt from the access and amendment provisions of subsection 
(d) as well as the accounting disclosures provision of subsection 
(c)(3). The FBI takes seriously its obligation to maintain accurate 
records despite its assertion of this exemption, and to the extent it, 
in its sole discretion, agrees to permit amendment or correction of FBI 
records, it will share that information in appropriate cases.
    (3) From subsection (d), (e)(4)(G) and (H), (e)(8), (f) and (g) 
because these provisions concern individual access to and amendment of 
law enforcement and intelligence records and compliance could alert the 
subject of an authorized law enforcement or intelligence activity about 
that particular activity and the investigative interest of the FBI and/
or other law enforcement or intelligence agencies. Providing access 
could compromise sensitive law enforcement information; disclose 
information that could constitute an unwarranted invasion of another's 
personal privacy; reveal a sensitive investigative or intelligence 
technique; provide information that would allow a subject to avoid 
detection or apprehension; or constitute a potential danger to the 
health or safety of law enforcement personnel, confidential sources, 
and witnesses. The FBI takes seriously its obligation to maintain 
accurate records despite its assertion of this exemption, and to the 
extent it, in its sole discretion, agrees to permit amendment or 
correction of FBI records, it will share that information in 
appropriate cases with subjects of the information.
    (4) From subsection (e)(1) because it is not always possible to 
know in advance what information is relevant and necessary for law 
enforcement and intelligence purposes. Relevance and necessity are 
questions of judgment and timing. For example, what appears relevant 
and necessary when collected ultimately may be deemed unnecessary. It 
is only after information is assessed that its relevancy and necessity 
in a specific investigative activity can be established.
    (5) From subsections (e)(2) and (3) because it is not feasible to 
comply with these provisions given the nature of this system. The 
majority of the records in this system come from other federal, state, 
local, joint, foreign, tribal, and international agencies; therefore, 
it is not feasible for the FBI to collect information directly from the 
individual or to provide notice. Additionally, the application of this 
provision could present a serious impediment to the FBI's 
responsibilities to detect, deter, and prosecute crimes and to protect 
the national security. Application of these provisions would put the 
subject of an investigation on notice of that fact and allow the 
subject an opportunity to engage in conduct intended to impede that 
activity or avoid apprehension.
    (6) From subsection (e)(4)(I), to the extent that this subsection 
is interpreted to require more detail regarding the record sources in 
this system than has already been published in the Federal Register 
through the SORN documentation. Should the subsection be so 
interpreted, exemption from this provision is necessary to protect the 
sources of law enforcement and intelligence information and to protect 
the privacy and safety of witnesses and informants and others who 
provide information to the FBI.
    (7) From subsection (e)(5) because in the collection of information 
for authorized law enforcement and intelligence purposes it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. With time, additional facts, or 
analysis, information may acquire new significance. The restrictions 
imposed by subsection (e)(5) would limit the ability of trained 
investigators and intelligence analysts to exercise their judgment in 
reporting on investigations and impede the development of criminal 
intelligence necessary for effective law enforcement. Although the FBI 
has claimed this exemption, it continuously works with its federal, 
state, local, tribal, and international partners to maintain the 
accuracy of records to the greatest extent practicable. The FBI does so 
with established policies and practices. The criminal justice and 
national security communities have a strong operational interest in 
using up-to-date and accurate records and will foster relationships 
with partners to further this interest.

    Dated: August 28, 2019.
Peter A. Winn,
Acting Chief Privacy and Civil Liberties Officer, United States 
Department of Justice.
[FR Doc. 2019-19448 Filed 9-17-19; 8:45 am]
BILLING CODE 4410-02-P