Privacy Act of 1974; Implementation
| Published date | 18 September 2019 |
| Citation | 84 FR 49073 |
| Record Number | 2019-19448 |
| Section | Proposed rules |
| Court | Justice Department |
Federal Register, Volume 84 Issue 181 (Wednesday, September 18, 2019)
[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]
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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.
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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]
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