82 FR 35651 - Privacy Act of 1974; Implementation
DEPARTMENT OF JUSTICE Federal Register Volume 82, Issue 146 (August 1, 2017)
Federal Register Volume 82, Issue 146 (August 1, 2017)
| Page Range | 35651-35654 | |
| FR Document | 2017-15423 |
[Federal Register Volume 82, Number 146 (Tuesday, August 1, 2017)] [Rules and Regulations] [Pages 35651-35654] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-15423] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE 28 CFR Part 16 [CPCLO Order No. 007-2017] Privacy Act of 1974; Implementation AGENCY: Federal Bureau of Investigation, United States Department of Justice. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Federal Bureau of Investigation (FBI), a component of the United States Department of Justice (DOJ or Department), is issuing a final rule to amend its Privacy Act exemption regulations for the system of records titled, ``Next Generation Identification (NGI) System,'' JUSTICE/FBI-009, last published in full on May 5, 2016. Specifically, the FBI exempts the records maintained in JUSTICE/FBI-009 from one or more provisions of the Privacy Act. The listed exemptions are necessary to avoid interference with the Department's law enforcement and national security functions and responsibilities of the FBI. This document addresses public comments on the proposed rule. DATES: This final rule is effective August 31, 2017. FOR FURTHER INFORMATION CONTACT: Roxane M. Panarella, Assistant General Counsel, Privacy and Civil Liberties Unit, Office of the General Counsel, FBI, Washington DC, telephone 304-625-4000. SUPPLEMENTARY INFORMATION: Background In 1990, the FBI published in the Federal Register a System of Records Notice (SORN) for the FBI system of records titled, ``Identification Division Records System,'' JUSTICE/FBI-009. JUSTICE/ FBI-009 evolved into the ``Fingerprint Identification Records System (FIRS),'' also referred to as the ``Integrated Automated Fingerprint Identification System (IAFIS),'' published at 61 FR 6386 (February 20, 1996), which covered individuals arrested or incarcerated, individuals applying for Federal employment or military service, registered aliens or naturalized citizens, and individuals wishing to place their fingerprints on record for personal identification purposes. The FIRS SORN included the following records: A. Criminal fingerprint cards and/or related criminal justice information submitted by authorized agencies having criminal justice responsibilities; B. Civil fingerprint cards submitted by Federal agencies and civil fingerprint cards submitted by persons desiring to have their fingerprints placed on record for personal identification purposes; C. Identification records sometimes referred to as ``rap sheets'' which are compilations of criminal history information pertaining to individuals who have criminal fingerprint cards maintained in the system; and D. A name index pertaining to all individuals whose fingerprints are maintained in the system. As the system expanded, records continued to fall within the general categories of records specified in the SORN. As a policy matter, however, and in an effort to better detail the enhancements made to the system, the FBI and DOJ determined that JUSTICE/FBI-009 should be modified to more fully describe the features and capabilities of the system, which has since been renamed the Next Generation Identification (NGI) System. Important enhancements to the NGI System include the increased retention and searching of fingerprints obtained for the purposes of licensing, employment, obtaining government benefits, and biometric services such as improved latent fingerprint searching and face recognition technology. Leading up to the publication of the modified SORN and a Notice of Proposed Rulemaking (NPRM) for the NGI System, the FBI conducted a series of Privacy Impact Assessments that detailed the steps taken by the FBI to fully assess the privacy impacts of new and modified NGI System components, addressing potential risks and mitigation techniques. On May 5, 2016, the FBI issued a Notice of a Modified System of Records for the NGI System in the Federal Register at 81 FR 27284 (May 5, 2016), and an NPRM at 81 FR 27288 (May 5, 2016). In determining whether to claim exemptions, the FBI did not simply rely on exemptions granted to the predecessor system of records, but thoroughly evaluated the NGI System and its various components to determine whether exemptions were necessary. The necessary exemptions were proposed in the NPRM along with supporting rationales, and are to be codified in accordance with the issuance of this final rule. Response to Public Comments In its NGI System NPRM and Notice of a Modified System of Records, published on May 5, 2016, the Department invited public comment. The comment periods for both documents were originally set to close on June 6, 2016, but were extended 30 days to allow interested individuals additional time to analyze the proposal and prepare their comments. The FBI received over 100 comments and letters from individuals, and from non-government, public interest, civil liberties, non-profit, and academic organizations. The FBI has closely reviewed and considered these comments. The following discussion is provided to respond to the NPRM comments and provide greater insight into the FBI's assessment of the need to claim exemptions from certain provisions of the Privacy Act for the NGI System. Many questions and comments were received concerning the breadth and scope of the exemptions claimed. As [[Page 35652]] noted in the NPRM and reiterated here, the following exemptions apply only to the extent information in this system is subject to exemption pursuant to 5 U.S.C. 552a(j) or (k). Where compliance with an exempted section of the Privacy Act would not appear to interfere with or adversely affect the purposes of the NGI System to support law enforcement and to protect national security, the applicable exemption may be waived by the FBI in its sole discretion. These exemptions are claimed with respect to the NGI System's records, which are compiled for the purposes of identifying criminal offenders or alleged criminal offenders, criminal investigations, and reports identifiable to an individual compiled throughout the criminal law enforcement process, including fingerprints, as well as associated biographic data, the nature and disposition of any criminal charges, and additional biometrics such as mugshots and palm prints, if available and if provided by the submitting agency. The NGI System records qualify for exemption from sections of the Privacy Act under 5 U.S.C. 552a(j)(2) because the FBI's principal function is the enforcement of criminal laws and the records maintained in the NGI System fall into one or more of the categories listed in (j)(2). Due to the evolving nature of identity records and investigations and the scope of the NGI System, certain NGI System records may fall outside the scope of (j)(2) and would qualify for the specific exemptions under 5 U.S.C. 552a(k)(2) and (5). The exercise of all exemptions is discretionary and the FBI will not exercise an exemption of any section of the Privacy Act that is not appropriate and necessary. 5 U.S.C. 552a(c)(3), Accounting of Disclosures Upon Request of the Named Subject Some of the comments communicated concerns about claiming exemptions from accounting and audit disclosure requirements. As with exemptions claimed under subsections (c)(4) and (d), exemption from (c)(3) disclosure requirements is necessary to preserve the integrity of ongoing investigations. Revealing this information could compromise ongoing, authorized law enforcement and national security efforts by alerting an individual to collaborative law enforcement and national security investigations as well as the relative interests of the FBI and/or other investigatory agencies. Although the vast majority of NGI System disclosures need not be provided in an accounting request, the FBI must claim this additional exemption to ensure its ability to protect the integrity of ongoing investigations. It is important to note that, despite claiming this exemption, the Privacy Act does not permit the FBI to exempt this system of records from the requirements codified under subsections 5 U.S.C. 552a(c)(1) and (c)(2). As a result, except under limited circumstances as outlined in the Privacy Act, the FBI is obligated to keep an accurate accounting of the date, nature, and purpose of each disclosure of a record maintained within this system of records, and retain the accounting for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made. 5 U.S.C. 552a(d)(1), (2), (3) and (4), (e)(4)(G) and (H), (e)(8), (f), Access to and Amendment of Records Many of the comments received concerned exemptions regarding the access to and amendment of records pursuant to 5 U.S.C. 552a(d)(1), (2), (3) and (4), (e)(4)(G) and (H), (e)(8), and (f). As with exemptions claimed to (c)(3) and (c)(4), providing access to these records could compromise ongoing investigations. It is necessary for the FBI to claim these exemptions because the NGI System also contains latent fingerprints, as well as other biometrics, and associated personal information that may be law enforcement or national security sensitive. Compliance with these provisions 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. With that said, as cited in both the SORN and the NPRM, separate federal regulations (see 28 CFR 16.30-16.34 and 28 CFR 20.34) inform individuals of the process to access and amend their criminal history records in the NGI System. These regulations permit any person to receive his or her criminal history record for review and correction. If the individual has no criminal history record in the NGI System, he or she receives a letter confirming the absence of such record. Pursuant to the regulations, after an individual receives his or her criminal history record, he or she may consult both the FBI and the relevant criminal justice agency to correct or update the record. The vast majority of records in the NGI System have been entered by state and local law enforcement and require coordination with those agencies. In addition, pursuant to 28 CFR 50.12, agencies submitting fingerprints to the FBI for individuals seeking employment, licensing, or similar benefits are required to inform the applicants that their fingerprints will be searched in the NGI System and of the process for access and amendment under 28 CFR 16.30-16.34. The regulation also advises that agencies should afford the applicants the opportunity to correct or complete their records before making licensing or employment decisions. Additionally, for records claiming specific exemption under 5 U.S.C. 552a(k), if an individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, further access may be available. Consequently, although the FBI has claimed exemptions to the notification, access, and amendment provisions of the Privacy Act for the NGI System, the FBI generally does not exercise these exemptions when doing so would not interfere with its law enforcement functions and responsibilities. 5 U.S.C. 552a(g), Rights of Judicial Redress The comments received also expressed concerns about the FBI's exemption from 5 U.S.C. 552a(g), which grants individuals the right to certain civil remedies under the Privacy Act. As a matter of clarification, the Privacy Act only permits an agency to exempt 5 U.S.C. 552a(g) if the records in the system of records qualify for the general exemption provisions under 5 U.S.C. 552a(j). This exemption cannot be, and has not been, claimed for the records within the NGI System that qualify for only the specific exemptions under 5 U.S.C. 552a(k). Additionally, many comments expressed concern that by claiming an exemption from 5 U.S.C. 552a(g), the FBI would somehow absolve itself of meeting even those provisions of the Privacy Act that are not subject to exemption because an individual's right to seek a cause of action for any provisions of the Privacy Act would be exempted. First, the FBI takes all of its constitutional and statutory requirements seriously, and does not limit its compliance to only those provisions of the Privacy Act subject to judicial redress. As addressed throughout this SUPPLEMENTARY INFORMATION section, even when an exemption is claimed, the FBI takes all reasonable and appropriate steps necessary to meet the requirements of the Privacy Act that would not interfere with its law enforcement functions and responsibilities. The FBI is subject to a number of oversight mechanisms to ensure compliance with its requirements under the Privacy Act, [[Page 35653]] including internal and external audits and inspections. Second, while the FBI has proposed an exemption from this provision for the NGI System, the exemption regulation is clear that the FBI will only claim exemptions to the extent that information in this system of records is subject to an exemption pursuant to the Privacy Act. Many courts have interpreted an agency's decision to exempt the Privacy Act's civil remedies provisions as only an exemption from a cause of action based on an exempted provision. In those jurisdictions, individuals are still permitted to exercise their right of judicial redress, pursuant to 5 U.S.C. 552a(g), for those provisions of the Privacy Act that are not subject to exemption. 5 U.S.C. 552a(e)(2), and (3), Collection Directly From the Individual Commenters also expressed concerns regarding the exemption from (e)(2) and (3) of the requirement to collect information directly from the individual. The vast majority of the records in the NGI System are contributed by state and local law enforcement agencies. Because the FBI is neither the arresting official, nor the agency issuing the license, evaluating the individual for employment, or offering the benefit, it is impossible for the FBI to collect information directly from the subject. However, in most circumstances these other agencies create the records using information obtained directly from the subject with his or her knowledge. Fingerprints and other biometrics and information are collected by other government agencies based on their legal authorities to collect such information and submit it to the FBI. For records created for the purpose of licensing, employment, or to obtain a government benefit, the FBI requires that specific notice be provided to the applicant. This notice, in the form of a Privacy Act statement, discloses the authority which authorizes the solicitation of the information, whether disclosure of such information is mandatory or voluntary, the principal purpose for which the information is intended to be used, the routine uses which may be made of the information, and the effects on the individual, if any, of not providing all or any part of the requested information. 5 U.S.C. 552a(e)(4)(I), Categories of Sources of Records The FBI also received a comment concerning exemption of the requirement to disclose sources of records contained in the NGI System. Despite claiming this exemption, the FBI has published in the NGI SORN the categories of sources of records to the extent that such disclosure would not compromise confidential sources or the safety of witnesses. However, to the extent such additional details would be required, it is believed that such detail may interfere with the Department's law enforcement functions and the responsibilities of the FBI. The FBI claims the exemption to (e)(4)(I) because greater specificity than was provided in the NGI SORN cannot be disclosed without compromising confidential sources or the safety of witnesses. 5 U.S.C. 552a(e)(5), Accurate, Relevant, Timely, and Complete The comments also expressed concerns regarding the NGI System's exemption from the (e)(5) requirements to maintain accurate, relevant, timely, and complete records. When collecting information for authorized law enforcement purposes, it is not always possible to determine in advance what information is accurate, relevant, timely, or complete. With time, additional facts, and analysis, information may acquire new significance. Although the FBI has claimed this exemption, it continuously works with its federal, state, local, tribal, and international law enforcement partners to maintain the accuracy of records to the greatest extent possible. The FBI does so with established policies and practices that include the review, audit, and validation of records, and formal agreements with partner agencies that require regular records updates. The law enforcement 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. If alterations are made to criminal record sources outside the FBI, we encourage subject individuals to bring said documentation to the FBI's attention to ensure timely modification of an NGI System record. General Comments on the NGI System A few commenters expressed concerns about the safety and security of the system. It should be noted that the FBI is not and cannot claim exemption from 5 U.S.C. 552a(e)(10), which requires agencies to establish appropriate administrative, technical, and physical safeguards to ensure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity. In compliance with this provision of the Privacy Act and other security mandates, the NGI System has been developed and implemented in compliance with all federal information technology standards designed to safeguard personal information from loss, destruction, or unauthorized access. Many commenters communicated concerns about the NGI System being used to track the expression of First Amendment rights. The NGI System is a biometric database. It is not utilized to conduct surveillance or track the expression of a citizen's First Amendment rights. It should be noted that the FBI is not and cannot claim exemption from 5 U.S.C. 552a(e)(7), which, absent specific authorization or consent, prohibits the maintenance of records describing how any individual exercises rights guaranteed by the First Amendment. The FBI is not exempting the NGI System from all provisions of the Privacy Act. The protections of many of the provisions of the Privacy Act and the E-Government Act of 2002 are still in place; only the named Privacy Act exemptions have been claimed, if needed, to protect sensitive law enforcement and national security operations. Overall, the FBI has made only minor, administrative edits to the rule as originally proposed to ensure accuracy and consistency with the listed authorities and other subsections of 28 CFR part 16. The FBI has made no substantive changes to the rule as it was originally proposed. For the reasons identified in this publication, the Department and the FBI are issuing this final rule. 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, 28 CFR part 16 is 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. Subpart E--Exemption of Records Systems Under the Privacy Act 0 2. Amend Sec. 16.96 by revising paragraphs (e) and (f) to read as follows: [[Page 35654]] 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) and (I); (e)(5) and (8); (f) and (g): (1) The Next Generation Identification (NGI) System (JUSTICE/FBI- 009). (2) These exemptions apply only to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a(j) or (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 the subject 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 provide 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 and 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 that would constitute an unwarranted invasion of another's personal privacy, reveal a sensitive investigative 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, or witnesses. Also, an alternate system of access has been provided in 28 CFR 16.30 through 16.34, 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 records, including criminal dispositions. * * * * * Dated: July 13, 2017. Peter A. Winn, Acting Chief Privacy and Civil Liberties Officer, Department of Justice. [FR Doc. 2017-15423 Filed 7-31-17; 8:45 am] BILLING CODE 4410-02-P
![Federal Register / Vol. 82, No. 146 / Tuesday, August 1, 2017 / Rules and Regulations 35651
date and time will thereafter be continuously titled, ‘‘Next Generation Identification FBI and DOJ determined that JUSTICE/
published in the Chart Supplement. (NGI) System,’’ JUSTICE/FBI–009, last FBI–009 should be modified to more
* * * * * published in full on May 5, 2016. fully describe the features and
Paragraph 6002 Class E Airspace
Specifically, the FBI exempts the capabilities of the system, which has
Designated as Surface Areas. records maintained in JUSTICE/FBI–009 since been renamed the Next Generation
from one or more provisions of the Identification (NGI) System. Important
* * * * * enhancements to the NGI System
Privacy Act. The listed exemptions are
AGL WI E2 Kenosha, WI [Amended] necessary to avoid interference with the include the increased retention and
Kenosha Regional Airport, WI Department’s law enforcement and searching of fingerprints obtained for
(Lat. 42°35′45″ N., long. 87°55′40″ W.) national security functions and the purposes of licensing, employment,
That airspace extending upward from the responsibilities of the FBI. This obtaining government benefits, and
surface to and including 3,200 feet within a document addresses public comments biometric services such as improved
4.2-mile radius of Kenosha Regional Airport. on the proposed rule. latent fingerprint searching and face
This Class E airspace area is effective during DATES: This final rule is effective August recognition technology. Leading up to
the specific dates and times established in the publication of the modified SORN
31, 2017.
advance by Notice to Airmen. The effective and a Notice of Proposed Rulemaking
date and time will thereafter be continuously FOR FURTHER INFORMATION CONTACT:
Roxane M. Panarella, Assistant General (NPRM) for the NGI System, the FBI
published in the Chart Supplement.
conducted a series of Privacy Impact
* * * * * Counsel, Privacy and Civil Liberties
Assessments that detailed the steps
Unit, Office of the General Counsel, FBI,
Paragraph 6004 Class E Airspace Area taken by the FBI to fully assess the
Washington DC, telephone 304–625–
Designated as an Extension of Class D privacy impacts of new and modified
4000.
Airspace. NGI System components, addressing
SUPPLEMENTARY INFORMATION: potential risks and mitigation
* * * * *
Background techniques.
AGL WI E4 Kenosha, WI [Removed] On May 5, 2016, the FBI issued a
* * * * * In 1990, the FBI published in the Notice of a Modified System of Records
Federal Register a System of Records for the NGI System in the Federal
Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Notice (SORN) for the FBI system of Register at 81 FR 27284 (May 5, 2016),
Above the Surface of the Earth. records titled, ‘‘Identification Division and an NPRM at 81 FR 27288 (May 5,
Records System,’’ JUSTICE/FBI–009. 2016). In determining whether to claim
* * * * *
JUSTICE/FBI–009 evolved into the exemptions, the FBI did not simply rely
AGL WI E5 Kenosha, WI [Amended] ‘‘Fingerprint Identification Records on exemptions granted to the
Kenosha Regional Airport, WI System (FIRS),’’ also referred to as the predecessor system of records, but
(Lat. 42°35′45″ N., long. 87°55′40″ W.) ‘‘Integrated Automated Fingerprint thoroughly evaluated the NGI System
Kenosha Localizer Identification System (IAFIS),’’ and its various components to
(Lat. 42°36′04″ N., long. 87°55′11″ W.) published at 61 FR 6386 (February 20, determine whether exemptions were
That airspace extending upward from 700 1996), which covered individuals necessary. The necessary exemptions
feet above the surface within a 6.7-mile arrested or incarcerated, individuals were proposed in the NPRM along with
radius of Kenosha Regional Airport, and applying for Federal employment or supporting rationales, and are to be
within 9.9 miles north and 5.9 miles south military service, registered aliens or codified in accordance with the
of a 246° bearing from the Kenosha Localizer
to 10 miles west of the Kenosha Localizer.
naturalized citizens, and individuals issuance of this final rule.
wishing to place their fingerprints on
Issued in Fort Worth, Texas, on July 24, Response to Public Comments
record for personal identification
2017. purposes. The FIRS SORN included the In its NGI System NPRM and Notice
Walter Tweedy, following records: of a Modified System of Records,
Acting Manager, Operations Support Group, A. Criminal fingerprint cards and/or published on May 5, 2016, the
ATO Central Service Center. related criminal justice information Department invited public comment.
[FR Doc. 2017–16098 Filed 7–31–17; 8:45 am] submitted by authorized agencies The comment periods for both
BILLING CODE 4910–13–P having criminal justice responsibilities; documents were originally set to close
B. Civil fingerprint cards submitted by on June 6, 2016, but were extended 30
Federal agencies and civil fingerprint days to allow interested individuals
DEPARTMENT OF JUSTICE cards submitted by persons desiring to additional time to analyze the proposal
have their fingerprints placed on record and prepare their comments. The FBI
28 CFR Part 16 for personal identification purposes; received over 100 comments and letters
C. Identification records sometimes from individuals, and from non-
[CPCLO Order No. 007–2017]
referred to as ‘‘rap sheets’’ which are government, public interest, civil
Privacy Act of 1974; Implementation compilations of criminal history liberties, non-profit, and academic
information pertaining to individuals organizations. The FBI has closely
AGENCY: Federal Bureau of who have criminal fingerprint cards reviewed and considered these
Investigation, United States Department maintained in the system; and comments. The following discussion is
of Justice. D. A name index pertaining to all provided to respond to the NPRM
ACTION: Final rule. individuals whose fingerprints are comments and provide greater insight
mstockstill on DSK30JT082PROD with RULES
maintained in the system. into the FBI’s assessment of the need to
SUMMARY: The Federal Bureau of As the system expanded, records claim exemptions from certain
Investigation (FBI), a component of the continued to fall within the general provisions of the Privacy Act for the
United States Department of Justice categories of records specified in the NGI System.
(DOJ or Department), is issuing a final SORN. As a policy matter, however, and Many questions and comments were
rule to amend its Privacy Act exemption in an effort to better detail the received concerning the breadth and
regulations for the system of records enhancements made to the system, the scope of the exemptions claimed. As
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§ 16.96 Exemption of Federal Bureau of investigative technique, provide what information is accurate, relevant,
Investigation Systems—limited access. information that would allow a subject timely and complete. With time,
* * * * * to avoid detection or apprehension, or seemingly irrelevant or untimely
(e) The following system of records is constitute a potential danger to the information may acquire new
exempt from 5 U.S.C. 552a(c)(3) and (4); health or safety of law enforcement significance when new details are
(d)(1), (2), (3) and (4); (e)(1), (2) and (3); personnel, confidential sources, or brought to light. Additionally, the
(e)(4)(G), (H) and (I); (e)(5) and (8); (f) witnesses. Also, an alternate system of information may aid in establishing
and (g): access has been provided in 28 CFR patterns of activity and providing
(1) The Next Generation Identification 16.30 through 16.34, and 28 CFR 20.34, criminal leads. Most records in this
(NGI) System (JUSTICE/FBI–009). for record subjects to obtain a copy of system are acquired from state and local
(2) These exemptions apply only to their criminal history records. However, law enforcement agencies and it would
the extent that information in this the vast majority of criminal history be impossible for the FBI to vouch for
system is subject to exemption pursuant records concern local arrests for which the compliance of these agencies with
to 5 U.S.C. 552a(j) or (k). Where it would be inappropriate for the FBI to this provision. The FBI does
compliance would not appear to undertake correction or amendment. communicate to these agencies the need
interfere with or adversely affect the (4) From subsection (e)(1) because it for accurate and timely criminal history
purpose of this system to detect, deter, is not always possible to know in records, including criminal
and prosecute crimes and to protect the advance what information is relevant dispositions.
national security, the applicable and necessary for law enforcement
exemption may be waived by the FBI in * * * * *
purposes. The relevance and utility of
its sole discretion. certain information may not always be Dated: July 13, 2017.
(f) Exemptions from the particular evident until and unless it is vetted and Peter A. Winn,
subsections are justified for the matched with other sources of Acting Chief Privacy and Civil Liberties
following reasons: information that are necessarily and Officer, Department of Justice.
(1) From subsection (c)(3), the lawfully maintained by the FBI. Most [FR Doc. 2017–15423 Filed 7–31–17; 8:45 am]
requirement that an accounting be made records in this system are acquired from BILLING CODE 4410–02–P
available to the named subject of a state and local law enforcement
record, because this system is exempt agencies and it is not possible for the
from the access provisions of subsection FBI to review that information as
(d). Also, because making available to a DEPARTMENT OF HOMELAND
relevant and necessary. SECURITY
record subject the accounting of (5) From subsection (e)(2) and (3)
disclosures from records concerning the because application of this provision Coast Guard
subject would specifically reveal could present a serious impediment to
investigative interest by the FBI or the FBI’s responsibilities to detect, 33 CFR Part 100
agencies that are recipients of the deter, and prosecute crimes and to
disclosures. Revealing this information protect the national security. [Docket No. USCG–2017–0673]
could compromise ongoing, authorized Application of these provisions would
law enforcement and national security put the subject of an investigation on Special Local Regulations; SUP3Rivers
efforts and may provide the record notice of that fact and allow the subject the Southside Outside, Pittsburgh, PA
subject with the opportunity to evade or an opportunity to engage in conduct AGENCY: Coast Guard, DHS.
impede the investigation. intended to impede that activity or
(2) From subsection (c)(4) notification ACTION: Notice of enforcement of
avoid apprehension. Also, the majority regulation.
requirements because this system is of criminal history records and
exempt from the access and amendment associated biometrics in this system are SUMMARY: The Coast Guard will enforce
provisions of subsection (d) as well as collected by state and local agencies at a special local regulation for navigable
the accounting of disclosures provision the time of arrest; therefore it is not waters of the Allegheny and
of subsection (c)(3). The FBI takes feasible for the FBI to collect directly Monongahela Rivers during the
seriously its obligation to maintain from the individual or to provide notice. SUP3Rivers the Southside Outside
accurate records despite its assertion of Those persons who voluntarily submit event. This regulation is needed to
this exemption, and to the extent it, in fingerprints into this system pursuant to provide for the safety of life during the
its sole discretion, agrees to permit state and federal statutes for licensing, marine event. During the enforcement
amendment or correction of FBI records, employment, and similar civil purposes period, entry into this regulated area is
it will share that information in receive an (e)(3) notice. prohibited to all vessels not registered
appropriate cases. (6) From subsection (e)(4)(I), to the with the sponsor as participants or
(3) From subsection (d) (1), (2), (3) extent that this subsection is interpreted official patrol vessels, unless
and (4), (e)(4)(G) and (H), (e)(8), (f) and to require more detail regarding the specifically authorized by the Captain of
(g) because these provisions concern record sources in this system than has the Port Marine Safety Unit Pittsburgh
individual access to and amendment of been published in the Federal Register. (COTP) or a designated representative.
law enforcement records and Should the subsection be so interpreted,
DATES: The regulations in 33 CFR
compliance and could alert the subject exemption from this provision is
of an authorized law enforcement 100.801, Table 1, Sector Ohio Valley,
necessary to protect the sources of law
activity about that particular activity line 29, will be enforced from 6:30 a.m.
enforcement information and to protect
through 11:30 a.m. on September 2,
mstockstill on DSK30JT082PROD with RULES
and the interest of the FBI and/or other the privacy and safety of witnesses and
law enforcement agencies. Providing 2017.
informants and others who provide
access could compromise sensitive law information to the FBI. FOR FURTHER INFORMATION CONTACT: If
enforcement information, disclose (7) From subsection (e)(5) because in you have questions about this notice of
information that would constitute an the collection of information for enforcement, call or email MST1
unwarranted invasion of another’s authorized law enforcement purposes it Jennifer Haggins, Marine Safety Unit
personal privacy, reveal a sensitive is impossible to determine in advance Pittsburgh, U.S. Coast Guard; telephone
VerDate Sep<11>2014 17:30 Jul 31, 2017 Jkt 241001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\01AUR1.SGM 01AUR1](https://thefederalregister.org/doc/82_FR_35797/page/4.svg)
Document Created: 2018-10-24 11:42:19
Document Modified: 2018-10-24 11:42:19
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective August 31, 2017. | |
| Contact | Roxane M. Panarella, Assistant General Counsel, Privacy and Civil Liberties Unit, Office of the General Counsel, FBI, Washington DC, telephone 304-625-4000. | |
| FR Citation | 82 FR 35651 | |
| CFR Associated | Administrative Practices and Procedures; Courts; Freedom of Information and Privacy Act |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR