81 FR 27288 - Privacy Act of 1974; Implementation

DEPARTMENT OF JUSTICE

Federal Register Volume 81, Issue 87 (May 5, 2016)

Elsewhere in the Federal Register, 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, ``The Next Generation Identification (NGI) System,'' JUSTICE/FBI-009. In this notice of proposed rulemaking, the FBI proposes to exempt this system from certain provisions of the Privacy Act in order to prevent interference with the FBI's mission to detect, deter, and prosecute crimes and to protect the national security, which includes the use of criminal history record information and biometric identifiers. For the reasons provided below, the Department proposes to amend its Privacy Act regulations by establishing an exemption for records in this system from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k). Public comment is invited.

[Federal Register Volume 81, Number 87 (Thursday, May 5, 2016)]
[Proposed Rules]
[Pages 27288-27290]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-10119]



Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Proposed 
Rules

[[Page 27288]]


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

DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 003-2016]


Privacy Act of 1974; Implementation

AGENCY: Federal Bureau of Investigation, Department of Justice.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: Elsewhere in the Federal Register, 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, ``The Next Generation Identification (NGI) System,'' 
JUSTICE/FBI-009. In this notice of proposed rulemaking, the FBI 
proposes to exempt this system from certain provisions of the Privacy 
Act in order to prevent interference with the FBI's mission to detect, 
deter, and prosecute crimes and to protect the national security, which 
includes the use of criminal history record information and biometric 
identifiers. For the reasons provided below, the Department proposes to 
amend its Privacy Act regulations by establishing an exemption for 
records in this system from certain provisions of the Privacy Act 
pursuant to 5 U.S.C. 552a(j) and (k). Public comment is invited.

DATES: Comments must be received by June 6, 2016.

ADDRESSES: Address all comments to the Privacy Analyst, Privacy and 
Civil Liberties Office, National Place Building, 1331 Pennsylvania Ave. 
NW., Suite 1000, Washington, DC 20530-0001 or facsimile 202-307-0693. 
To ensure proper handling, please reference the CPCLO Order No. on your 
correspondence. You may review an electronic version of the proposed 
rule at http://www.regulations.gov. You may also comment via the 
Internet to either the Privacy and Civil Liberties Office at DOJ 
Privacy ACT [email protected]; or by using the http://www.regulations.gov comment form for this regulation. 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. All comments sent 
via regular or express mail will be considered timely if postmarked on 
the day the comment period closes.
    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 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, will 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.

FOR FURTHER INFORMATION CONTACT: Roxane M. Panarella, Assistant General 
Counsel, Privacy and Civil Liberties Unit, Office of the General 
Counsel, FBI, Washington, DC 20535-0001, telephone 304-625-4000.

SUPPLEMENTARY INFORMATION: In the Notice section of today's Federal 
Register, the FBI has established a modified Privacy Act system of 
records, ``The Next Generation Identification (NGI) System,'', JUSTICE/
FBI-009. The system serves as a repository for FBI information and for 
information lawfully received from federal, state, local, tribal, 
foreign, and other governmental partners. It provides fingerprint 
identification and criminal history services, as well as biometric 
services such as latent fingerprint, palm print, and face recognition. 
In this rulemaking, the FBI proposes to exempt this Privacy Act system 
of records from certain provisions of the Privacy Act in order to 
prevent interference with the responsibilities of the FBI to detect, 
deter, and prosecute crimes and to protect the national security.

Regulatory Flexibility Act

    This proposed rule relates to individuals rather than small 
business entities. Pursuant to the requirements of the Regulatory 
Flexibility Act of 1980, 5 U.S.C. 601-612, therefore, the proposed rule 
will not have a significant economic impact on a substantial number of 
small entities.

Small Entity Inquiries

    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 
FOR FURTHER INFORMATION CONTACT. 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.

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 and sharing of this 
information electronically will not increase the paperwork burden on 
the public.

Analysis of Regulatory Impacts

    This proposed rule is not a ``significant regulatory action'' 
within the meaning of Executive Order 12866 and therefore further 
regulatory evaluation is not necessary. This proposed rule will not 
have a significant economic impact on a substantial

[[Page 27289]]

number of small entities because it applies only to information about 
individuals.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 103-3, 109 Stat. 48, requires Federal agencies to assess the 
effects of certain regulatory actions on State, local, and tribal 
governments, and the private sector. UMRA requires a written statement 
of economic and regulatory alternatives for proposed and final rules 
that contain Federal mandates. A ``Federal mandate'' is a new or 
additional enforceable duty, imposed on any State, local, or tribal 
government, or the private sector. If any Federal mandate causes those 
entities to spend, in aggregate, $100 million or more in any one year, 
the UMRA analysis is required. This proposed rule would not impose 
Federal mandates on any State, local, or tribal government or the 
private sector.

List of Subjects in 28 CFR Part 16

    Administrative practices and procedures, Courts, Freedom of 
information, 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, it 
is proposed to amend 28 CFR part 16 as follows:

PART 16--[AMENDED]

0
1. The authority citation 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.

Subpart E--Exemption of Records Systems Under the Privacy Act


Sec.  16.96  [Amended]

0
2. Amend by revising Sec.  16.96 paragraph (e) as follows:


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

* * * * *
    (e) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2) and (3); 
(e)(4)(G), (H)(I); (e) (5) and (8); (f) and (g) of the Privacy Act:
    (1) The Next Generation Identification (NGI) System (JUSTICE/FBI-
009).
    These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j) and (k). 
Where compliance would not appear to interfere with or adversely affect 
the purpose of this system to detect, deter, and prosecute crimes and 
to protect the national security, the applicable exemption may be 
waived by the FBI in its sole discretion.
    (f) 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 investigative 
interest by the FBI or agencies that are recipients of the disclosures. 
Revealing this information could compromise ongoing, authorized law 
enforcement and national security efforts and may permit the record 
subject with the opportunity to evade or impede the 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 of 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)(1), (2), (3) and (4), (e)(4)(G) and (H), 
(e)(8), (f) and (g) because these provisions concern individual access 
to and amendment of law enforcement records and compliance could alert 
the subject of an authorized law enforcement activity about that 
particular activity and the interest of the FBI and/or other law 
enforcement agencies. Providing access could compromise sensitive law 
enforcement information, disclose information which would constitute an 
unwarranted invasion of another's personal privacy; reveal a sensitive 
investigative technique; could 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. Also, an alternate system of 
access has been provided in 28 CFR 16.30 to 34 and 28 CFR 20.34 for 
record subjects to obtain a copy of their criminal history records. 
However, the vast majority of criminal history records concern local 
arrests for which it would be inappropriate for the FBI to undertake 
correction or amendment.
    (4) From subsection (e)(1) because it is not always possible to 
know in advance what information is relevant and necessary for law 
enforcement purposes. The relevance and utility of certain information 
may not always be evident until and unless it is vetted and matched 
with other sources of information that are necessarily and lawfully 
maintained by the FBI. Most records in this system are acquired from 
state and local law enforcement agencies and it is not possible for the 
FBI to review that information as relevant and necessary.
    (5) From subsection (e)(2) and (3) because 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. Also, the majority of criminal history 
records and associated biometrics in this system are collected by state 
and local agencies at the time of arrest; therefore it is not feasible 
for the FBI to collect directly from the individual or to provide 
notice. Those persons who voluntarily submit fingerprints into this 
system pursuant to state and federal statutes for licensing, 
employment, and similar civil purposes receive an (e)(3) notice.
    (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 been published in the Federal Register. Should the 
subsection be so interpreted, exemption from this provision is 
necessary to protect the sources of law enforcement 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 purposes it is impossible to determine 
in advance what information is accurate, relevant, timely and complete. 
With time, seemingly irrelevant or untimely information may acquire new 
significance when new details are brought to light. Additionally, the 
information may aid in establishing patterns of activity and providing 
criminal leads. Most records in this system are acquired from state and 
local law enforcement agencies and it would be impossible for the FBI 
to vouch for the compliance of these agencies with this provision. The 
FBI does communicate to these agencies the need for accurate and timely 
criminal history

[[Page 27290]]

records, including criminal dispositions.

    Dated: April 21, 2016.
Erika Brown Lee,
Chief Privacy and Civil Liberties Officer, Department of Justice.
[FR Doc. 2016-10119 Filed 5-4-16; 8:45 am]
 BILLING CODE 4410-02-P