[Federal Register Volume 64, Number 187 (Tuesday, September 28, 1999)]
[Rules and Regulations]
[Pages 52223-52230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24988]
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DEPARTMENT OF JUSTICE
28 CFR Parts 0, 16, 20, and 50
[AG Order No. 2258-99]
RIN 1105-AA63
Federal Bureau of Investigation, Criminal Justice Information
Services Division Systems and Procedures
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: The United States Department of Justice (DOJ) is publishing a
final rule amending DOJ regulations relating to criminal justice
information systems of the Federal Bureau of Investigation (FBI). The
regulations are being amended to implement the following programmatic
and nomenclature changes: To permit access to criminal history record
information (CHRI) and related information, subject to appropriate
controls, by a private entity under a specific agreement with an
authorized governmental agency to perform an administration of criminal
justice function (privatization); to permit access to CHRI and related
information, subject to appropriate controls, by a noncriminal justice
governmental agency that is performing criminal justice dispatching
functions or data processing/information services for a criminal
justice agency; to acknowledge access to CHRI and related information
by the National Instant Criminal Background Check System (NICS) under
the Brady Handgun Violence Prevention Act of 1993; to add express
authority for the Director of the FBI from time to time to determine
and establish revised fee amounts; and to modernize language to ensure
that the regulations accurately reflect current FBI practices, names of
systems and programs, and addresses.
DATES: This rule is effective October 28, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. Harold M. Sklar, Attorney-Advisor,
Federal Bureau of Investigation, CJIS Division, Module E-3, 1000 Custer
Hollow Road, Clarksburg, West Virginia, 26306, telephone number (304)
625-2000.
SUPPLEMENTARY INFORMATION: The FBI manages two systems for the exchange
of criminal justice information: The National Crime Information Center
(NCIC) and the Fingerprint Identification Records System (FIRS). This
rule implements changes to regulations relating to CHRI and related
information maintained in these systems. The changes finalized in this
rule fall into five categories, discussed below.
1. Access to CHRI and Related Information, Subject to Appropriate
Controls, by a Private Contractor Pursuant to a Specific Agreement
With an Authorized Governmental Agency To Perform an Administration
of Criminal Justice Function (Privatization)
Section 534 of title 28 of the United States Code authorizes the
Attorney General to exchange identification, criminal identification,
crime, and other records for the official use of authorized officials
of the federal government, the states, cities, and penal and other
institutions. This statute also provides, however, that such exchanges
are subject to cancellation if dissemination is made outside the
receiving departments or related agencies. Agencies authorized access
to CHRI traditionally have been hesitant to disclose that information,
even in furtherance of authorized criminal justice functions, to anyone
other than actual agency employees out of concern that such disclosure
could be viewed as unauthorized.
In recent years, however, governmental agencies seeking greater
efficiency and economy have become increasingly interested in obtaining
support services for the administration of criminal justice from the
private sector. With the concurrence of the FBI's Criminal Justice
Information Services Advisory Policy Board, the DOJ has concluded that
disclosures to private persons and entities providing support services
for criminal justice agencies may, when subject to appropriate
controls, properly be viewed as permissible disclosures for purposes of
compliance with 28 U.S.C. 534.
We are therefore revising 28 CFR 20.33(a)(7) to provide express
authority for such arrangements. This authority is similar to the
authority that already exists in 28 CFR 20.21(b)(3) for state and local
CHRI systems. Provision of CHRI under this authority will only be
permitted pursuant to a specific agreement with an authorized
governmental agency for the purpose of providing services for the
administration of criminal justice. The agreement will be required to
incorporate a security addendum approved by the Director of the FBI
(acting for the Attorney General). The security addendum will
specifically authorize access to CHRI, limit the use of the information
to the specific purposes for which it is being provided, ensure the
security and confidentiality
[[Page 52224]]
of the information consistent with applicable laws and regulations,
provide for sanctions, and contain such other provisions as the
Director of the FBI (acting for the Attorney General) may require. The
security addendum, buttressed by ongoing audit programs of both the FBI
and the sponsoring governmental agency, will provide an appropriate
balance among the benefits of privatization, protection of individual
privacy interests, and preservation of the security of the FBI's CHRI
systems.
The FBI will develop a security addendum to be made available to
interested governmental agencies. We anticipate that the security
addendum will include physical and personnel security constraints
historically required by NCIC security practices and other programmatic
requirements, together with personal integrity and electronic security
provisions comparable to those in NCIC User Agreements between the FBI
and criminal justice agencies, and in existing Management Control
Agreements between criminal justice agencies and noncriminal justice
governmental entities. The security addendum will make clear that
access to CHRI will be limited to those officers and employees of the
private contractor or its subcontractor who require the information in
order properly to perform services for the sponsoring governmental
agency, and that the service provider may not access, modify, use, or
disseminate such information for inconsistent or unauthorized purposes.
2. Access to CHRI and Related Information, Subject to Appropriate
Controls, by a Noncriminal Justice Governmental Agency Performing
Criminal Justice Dispatching Functions or Data Processing/
Information Services for a Criminal Justice Agency
Noncriminal justice governmental agencies are sometimes tasked to
perform dispatching functions or data processing/information services
for criminal justice agencies as part, albeit not a principal part, of
their responsibilities. Although such delegated tasks involve the
administration of criminal justice, the performance of those tasks does
not convert an otherwise noncriminal justice agency into a criminal
justice agency. This regulation authorizes the delegation of such tasks
to noncriminal justice agencies if done pursuant to executive order,
statute, regulation, or inter-agency agreement. In this context, the
noncriminal justice agency is servicing the criminal justice agency by
performing an administration of criminal justice function and is
permitted access to CHRI to accomplish that limited function. 28 CFR
20.33(a)(6) and the appendix are revised in order to confirm the
authority of these noncriminal justice governmental agencies to receive
CHRI and related information when approved by the FBI, subject to
appropriate controls that may be imposed by the FBI.
3. Access to CHRI and Related Information by the National Instant
Criminal Background Check System (NICS)
The Brady Handgun Violence Prevention Act of 1993, Public Law 103-
159, provides for the establishment of a National Instant Criminal
Background Check System (NICS). Prior to transferring a firearm to a
non-licensee, a federal firearm licensee must check the NICS (via a
criminal justice agency) to see if the prospective transferee is
prohibited under federal or state law from possessing a firearm.
Because CHRI may contain information relevant to determining if
possession of a firearm by a person is prohibited, the NICS will
execute an NCIC check as part of each NICS query. Follow-up access to
the FIRS may also be necessary to resolve questions of identity. 28 CFR
20.33(a)(5) is revised to confirm authority for the dissemination of
CHRI and related information to criminal justice agencies for the
conduct of background checks under the NICS.
4. Authority for the Director of the FBI Periodically To Revise Fee
Amounts
Part 16, subpart C of title 28 of the Code of Federal Regulations
establishes procedures by which an individual may obtain a copy of his
or her identification record to review and may request a change,
correction, or update to that record. Under 28 CFR 16.33, an individual
requesting production of his or her identification record pays a fee of
$18 for each such request. The authority for this fee is the
Independent Offices Appropriation Act (31 U.S.C. 9701), as implemented
by guidelines issued by the DOJ, User Fee Program (Supplement,
Department of Justice Budget Formulation and Execution Calls), and
Office of Management and Budget (OMB) Circular Number A-25, Revised
(July 8, 1993). These authorities generally require that a benefit or
service provided to or for any person by a federal agency be self-
sustaining to the fullest extent possible, that charges be fair and
equitable, and that fee amounts be periodically reassessed and adjusted
as warranted.
28 CFR 16.33 is revised by adding express authority for the
Director of the FBI from time to time to determine and establish a
revised fee amount. The exercise of this authority by the Director of
the FBI will be subject to all applicable laws, regulations, or
directions of the Attorney General of the United States, and the
Director of the FBI will publish in the Federal Register appropriate
notice of revised fee amounts.
5. Update of Nomenclature and Addresses
Throughout the parts of title 28 affected by this rule, the
language is modernized to reflect accurately current FBI practices, the
current names of systems and programs, and the name and address of the
new FBI facility in West Virginia where the systems are located. The
broader term ``fingerprints'' has been substituted for ``fingerprint
cards'' to encompass both ``hard copy'' fingerprint cards as well as
the electronic submission of fingerprint data. The term
``fingerprints'' is further intended to encompass not only all
depictions of physical fingerprints (for example, inked images,
electronic images, and electronic encoding) but also all related
biographical or other information typically appearing on a fingerprint
card. The terms ``computerized criminal history'' and ``CCH'' are
changed to ``Interstate Identification Index'' and ``III.'' The FBI
``Identification Division'' is changed to ``Criminal Justice
Information Services Division'' or ``CJIS.'' ``NCIC Advisory Policy
Board'' is changed to ``CJIS Advisory Policy Board.'' Minor
modifications are made to the definitions in 28 CFR part 20, subpart A;
definitions are added for the terms ``Control Terminal Agency,''
``criminal history records repository,'' ``Federal Service
Coordinator,'' ``Fingerprint Identification Records System'' (FIRS),
``Interstate Identification Index System'' (III System), ``National
Crime Information Center'' (NCIC), ``National Fingerprint File'' (NFF),
and ``National Identification Index'' (NII); the definition of
``Department of Justice criminal history record information system'' is
eliminated; and the definitions are placed in alphabetical order.
In addition to the foregoing changes, the Department of Justice is
currently reviewing additional changes to these regulations to be
promulgated in future rulemaking. We note that 28 CFR part 20, subpart
B, which also contains dated nomenclature and addresses, will not be
directly changed by this rule. The Department of Justice may consider
possible changes to 28 CFR part 20, subpart B at some later time.
[[Page 52225]]
Summary of Comments on the Proposed Rule
On May 10, 1999, the Department of Justice published in the Federal
Register (64 FR 24972) a proposed rule that would amend the DOJ
regulations to implement the changes discussed above. The period for
submitting comments on the proposed rule expired on June 9, 1999.
The Department received three comment letters in response to the
publication of the proposed rule. Two of these letters, one from a
criminal justice consultant (formerly a police officer and police
records manager) and the other from a national criminal justice
consortium, endorsed the proposed revisions. One of these letters also
suggested that future revisions to the regulations may be appropriate
under the provisions of the National Crime Prevention and Privacy
Compact Act of 1998 (``Compact Act''). Secs. 211-17, Pub. L. 105-251,
112 Stat. 1874-84. To the extent that the Compact Act, which addresses
the sharing of criminal history record information for noncriminal
justice purposes, is determined to be relevant to these regulations,
the Department may consider appropriate changes at a later time.
The third letter, from a State Attorney General's office, asked
whether direct terminal access to state and local criminal history
record information systems is permitted by noncriminal justice agencies
(public or private) under subpart B of part 20 of the regulation, given
the proposed change to subpart C, Sec. 20.33(a)(7). Subparts B and C
address different criminal history record information systems--subpart
B governs certain state and local systems, whereas subpart C governs
FBI and interstate systems. As a result, changes to subpart C do not
affect subpart B and the systems governed by that subpart. To the
extent that the question is seeking advice on the proper interpretation
of subpart B, the FBI is addressing the issue outside of the current
rulemaking. The Department of Justice may consider possible changes to
subpart B at some later time.
The third letter also asked whether the proposed regulation would
permit a state governmental agency to outsource centralized
recordkeeping functions for criminal history records and services. The
proposed regulation permits the dissemination of criminal history
record information to private contractors, pursuant to a specific
agreement, with appropriate controls, for the purpose of providing
services for the administration of criminal justice. The administration
of criminal justice includes criminal identification activities and the
collection, storage, and dissemination of criminal history record
information. (See the definition of ``administration of criminal
justice'' in Sec. 20.3(b).) Therefore, pursuant to the proposed
regulation, a state criminal history record repository may contract
with a private entity to maintain criminal history records and provide
related services to authorized users for the state criminal history
record repository under a specific agreement that incorporates the
controls required by this final rule (Sec. 20.33(a)(7)).
Applicable Administrative Procedures and Executive Orders;
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this final rule and, by approving
it, certifies that this regulation will not have a significant economic
impact on a substantial number of small entities. Most of the matters
addressed by this final rule relate to nomenclature changes and to
intra- and intergovernmental authorities not involving the private
sector, or to governmental interaction with individuals in non-business
contexts. The one change that relates to the private sector provides
expanded authority for the dissemination of criminal justice
information to private entities with which authorized governmental
agencies have contracted for criminal justice support services. Far
from having any adverse effect on small entities, this change will, if
anything, result in expanded opportunities for the private sector to
conduct business with criminal justice agencies.
Executive Order 12866
This final rule has been drafted and reviewed in accordance with
Executive Order 12866, section (1)(b), Principles of Regulation. The
Department of Justice has determined that this final rule is not a
significant regulatory action under Executive Order 12866, section
3(f), and accordingly this final rule has not been reviewed by the
Office of Management and Budget.
Executive Order 12612
This final rule will not have substantial, direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this final rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by state, local,
and tribal governments, in the aggregate, or by the private sector, of
$100 million 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.
Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is not a major rule as defined by the Small
Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804.
This rule will not result in an annual effect on the economy of $100
million or more; a major increase in costs or prices; or significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Paperwork Reduction Act of 1995
This final rule does not contain collection of information
requirements. Therefore, clearance by the Office of Management and
Budget under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is
not required.
Executive Order 12988: Civil Justice Reform
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
List of Subjects
28 CFR Part 0
Authority delegations (Government agencies), Government employees,
Organization and functions (Governmental agencies), Whistleblowing.
28 CFR Part 16
Administrative practice and procedure, Courts, Freedom of
Information, Privacy, Sunshine Act.
28 CFR Part 20
Classified information, Crime, Intergovernmental relations,
Investigations, Law enforcement, Privacy.
28 CFR Part 50
Administrative practice and procedure.
[[Page 52226]]
Accordingly, Title 28 of the Code of Federal Regulations is amended
as follows:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
1. The authority citation for part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
2. Amend Sec. 0.85 as follows:
a. Remove the two references in paragraph (b) to ``fingerprint
cards'' and add in their place the term ``fingerprints'';
b. Revise paragraph (j) to read as follows:
Sec. 0.85 General functions.
* * * * *
(j) Exercise the power and authority vested in the Attorney General
to approve and conduct the exchanges of identification records
enumerated at Sec. 50.12(a) of this chapter.
* * * * *
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
3. The authority citation for part 16 is revised 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.
4. Section 16.30 is revised to read as follows:
Sec. 16.30 Purpose and scope.
This subpart contains the regulations of the Federal Bureau of
Investigation (FBI) concerning procedures to be followed when the
subject of an identification record requests production of that record
to review it or to obtain a change, correction, or updating of that
record.
5. Section 16.31 is revised to read as follows:
Sec. 16.31 Definition of identification record.
An FBI identification record, often referred to as a ``rap sheet,''
is a listing of certain information taken from fingerprint submissions
retained by the FBI in connection with arrests and, in some instances,
includes information taken from fingerprints submitted in connection
with federal employment, naturalization, or military service. The
identification record includes the name of the agency or institution
that submitted the fingerprints to the FBI. If the fingerprints concern
a criminal offense, the identification record includes the date of
arrest or the date the individual was received by the agency submitting
the fingerprints, the arrest charge, and the disposition of the arrest
if known to the FBI. All arrest data included in an identification
record are obtained from fingerprint submissions, disposition reports,
and other reports submitted by agencies having criminal justice
responsibilities. Therefore, the FBI Criminal Justice Information
Services Division is not the source of the arrest data reflected on an
identification record.
6. Section 16.32 is amended by revising the first sentence to read
as follows:
Sec. 16.32 Procedure to obtain an identification record.
The subject of an identification record may obtain a copy thereof
by submitting a written request via the U.S. mails directly to the FBI,
Criminal Justice Information Services (CJIS) Division, ATTN: SCU, Mod.
D-2, 1000 Custer Hollow Road, Clarksburg, WV
26306. * * *
7. Section 16.33 is amended by adding two sentences at the end of
this section to read as follows:
Sec. 16.33 Fee for production of identification record.
* * * Subject to applicable laws, regulations, and directions of
the Attorney General of the United States, the Director of the FBI may
from time to time determine and establish a revised fee amount to be
assessed under this authority. Notice relating to revised fee amounts
shall be published in the Federal Register.
Sec. 16.34 [Amended]
8. Section 16.34 is amended as follows:
a. Remove the reference to the former address, from ``Assistant
Director'' through zip code ``20537-9700,'' and add in its place the
following new address: ``FBI, Criminal Justice Information Services
(CJIS) Division, ATTN: SCU, Mod. D-2, 1000 Custer Hollow Road,
Clarksburg, WV 26306'';
b. Remove the remaining reference to ``FBI Identification
Division'' and add in its place ``FBI CJIS Division.''
PART 20--CRIMINAL JUSTICE INFORMATION SYSTEMS
9. The authority citation for Part 20 continues to read as follows:
Authority: 28 U.S.C. 534; Pub. L. 92-544, 86 Stat. 1115; 42
U.S.C. 3711, et seq., Pub. L. 99-169, 99 Stat. 1002, 1008-1011, as
amended by Pub. L. 99-569, 100 Stat. 3190, 3196.
10-11. Section 20.1 is revised to read as follows:
Sec. 20.1 Purpose.
It is the purpose of these regulations to assure that criminal
history record information wherever it appears is collected, stored,
and disseminated in a manner to ensure the accuracy, completeness,
currency, integrity, and security of such information and to protect
individual privacy.
12. Section 20.3 is revised to read as follows:
Sec. 20.3 Definitions.
As used in these regulations:
(a) Act means the Omnibus Crime Control and Safe Streets Act, 42
U.S.C. 3701, et seq., as amended.
(b) Administration of criminal justice means performance of any of
the following activities: Detection, apprehension, detention, pretrial
release, post-trial release, prosecution, adjudication, correctional
supervision, or rehabilitation of accused persons or criminal
offenders. The administration of criminal justice shall include
criminal identification activities and the collection, storage, and
dissemination of criminal history record information.
(c) Control Terminal Agency means a duly authorized state, foreign,
or international criminal justice agency with direct access to the
National Crime Information Center telecommunications network providing
statewide (or equivalent) service to its criminal justice users with
respect to the various systems managed by the FBI CJIS Division.
(d) Criminal history record information means information collected
by criminal justice agencies on individuals consisting of identifiable
descriptions and notations of arrests, detentions, indictments,
informations, or other formal criminal charges, and any disposition
arising therefrom, including acquittal, sentencing, correctional
supervision, and release. The term does not include identification
information such as fingerprint records if such information does not
indicate the individual's involvement with the criminal justice system.
(e) Criminal history record information system means a system
including the equipment, facilities, procedures, agreements, and
organizations thereof, for the collection, processing, preservation, or
dissemination of criminal history record information.
(f) Criminal history record repository means the state agency
designated by the governor or other appropriate executive official or
the legislature to perform centralized recordkeeping functions for
criminal history records and services in the state.
[[Page 52227]]
(g) Criminal justice agency means:
(1) Courts; and
(2) A governmental agency or any subunit thereof that performs the
administration of criminal justice pursuant to a statute or executive
order, and that allocates a substantial part of its annual budget to
the administration of criminal justice. State and federal Inspector
General Offices are included.
(h) Direct access means having the authority to access systems
managed by the FBI CJIS Division, whether by manual or automated
methods, not requiring the assistance of or intervention by any other
party or agency.
(i) Disposition means information disclosing that criminal
proceedings have been concluded and the nature of the termination,
including information disclosing that the police have elected not to
refer a matter to a prosecutor or that a prosecutor has elected not to
commence criminal proceedings; or disclosing that proceedings have been
indefinitely postponed and the reason for such postponement.
Dispositions shall include, but shall not be limited to, acquittal,
acquittal by reason of insanity, acquittal by reason of mental
incompetence, case continued without finding, charge dismissed, charge
dismissed due to insanity, charge dismissed due to mental incompetency,
charge still pending due to insanity, charge still pending due to
mental incompetence, guilty plea, nolle prosequi, no paper, nolo
contendere plea, convicted, youthful offender determination, deceased,
deferred disposition, dismissed-civil action, found insane, found
mentally incompetent, pardoned, probation before conviction, sentence
commuted, adjudication withheld, mistrial-defendant discharged,
executive clemency, placed on probation, paroled, or released from
correctional supervision.
(j) Executive order means an order of the President of the United
States or the Chief Executive of a state that has the force of law and
that is published in a manner permitting regular public access.
(k) Federal Service Coordinator means a non-Control Terminal Agency
that has a direct telecommunications line to the National Crime
Information Center network.
(l) Fingerprint Identification Records System or ``FIRS'' means the
following FBI records: Criminal fingerprints and/or related criminal
justice information submitted by authorized agencies having criminal
justice responsibilities; civil fingerprints submitted by federal
agencies and civil fingerprints submitted by persons desiring to have
their fingerprints placed on record for personal identification
purposes; identification records, sometimes referred to as ``rap
sheets,'' which are compilations of criminal history record information
pertaining to individuals who have criminal fingerprints maintained in
the FIRS; and a name index pertaining to all individuals whose
fingerprints are maintained in the FIRS. See the FIRS Privacy Act
System Notice periodically published in the Federal Register for
further details.
(m) Interstate Identification Index System or ``III System'' means
the cooperative federal-state system for the exchange of criminal
history records, and includes the National Identification Index, the
National Fingerprint File, and, to the extent of their participation in
such system, the criminal history record repositories of the states and
the FBI.
(n) National Crime Information Center or ``NCIC'' means the
computerized information system, which includes telecommunications
lines and any message switching facilities that are authorized by law,
regulation, or policy approved by the Attorney General of the United
States to link local, state, tribal, federal, foreign, and
international criminal justice agencies for the purpose of exchanging
NCIC related information. The NCIC includes, but is not limited to,
information in the III System. See the NCIC Privacy Act System Notice
periodically published in the Federal Register for further details.
(o) National Fingerprint File or ``NFF'' means a database of
fingerprints, or other uniquely personal identifying information,
relating to an arrested or charged individual maintained by the FBI to
provide positive identification of record subjects indexed in the III
System.
(p) National Identification Index or ``NII'' means an index
maintained by the FBI consisting of names, identifying numbers, and
other descriptive information relating to record subjects about whom
there are criminal history records in the III System.
(q) Nonconviction data means arrest information without disposition
if an interval of one year has elapsed from the date of arrest and no
active prosecution of the charge is pending; information disclosing
that the police have elected not to refer a matter to a prosecutor,
that a prosecutor has elected not to commence criminal proceedings, or
that proceedings have been indefinitely postponed; and information that
there has been an acquittal or a dismissal.
(r) State means any state of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States.
(s) Statute means an Act of Congress or of a state legislature or a
provision of the Constitution of the United States or of a state.
13. Subpart C is revised to read as follows:
Subpart C--Federal Systems and Exchange of Criminal History Record
Information
Sec.
20.30 Applicability.
20.31 Responsibilities.
20.32 Includable offenses.
20.33 Dissemination of criminal history record information.
20.34 Individual's right to access criminal history record
information.
20.35 Criminal Justice Information Services Advisory Policy Board.
20.36 Participation in the Interstate Identification Index System.
20.37 Responsibility for accuracy, completeness, currency, and
integrity.
20.38 Sanction for noncompliance.
Subpart C--Federal Systems and Exchange of Criminal History Record
Information
Sec. 20.30 Applicability.
The provisions of this subpart of the regulations apply to the III
System and the FIRS, and to duly authorized local, state, tribal,
federal, foreign, and international criminal justice agencies to the
extent that they utilize the services of the III System or the FIRS.
This subpart is applicable to both manual and automated criminal
history records.
Sec. 20.31 Responsibilities.
(a) The Federal Bureau of Investigation (FBI) shall manage the
NCIC.
(b) The FBI shall manage the FIRS to support identification and
criminal history record information functions for local, state, tribal,
and federal criminal justice agencies, and for noncriminal justice
agencies and other entities where authorized by federal statute, state
statute pursuant to Public Law 92-544, 86 Stat. 1115, Presidential
executive order, or regulation or order of the Attorney General of the
United States.
(c) The FBI CJIS Division may manage or utilize additional
telecommunication facilities for the exchange of fingerprints, criminal
history record related information, and other criminal justice
information.
(d) The FBI CJIS Division shall maintain the master fingerprint
files on all offenders included in the III System and the FIRS for the
purposes of determining first offender status; to identify those
offenders who are
[[Page 52228]]
unknown in states where they become criminally active but are known in
other states through prior criminal history records; and to provide
identification assistance in disasters and for other humanitarian
purposes.
Sec. 20.32 Includable offenses.
(a) Criminal history record information maintained in the III
System and the FIRS shall include serious and/or significant adult and
juvenile offenses.
(b) The FIRS excludes arrests and court actions concerning
nonserious offenses, e.g., drunkenness, vagrancy, disturbing the peace,
curfew violation, loitering, false fire alarm, non-specific charges of
suspicion or investigation, and traffic violations (except data will be
included on arrests for vehicular manslaughter, driving under the
influence of drugs or liquor, and hit and run), when unaccompanied by a
Sec. 20.32(a) offense. These exclusions may not be applicable to
criminal history records maintained in state criminal history record
repositories, including those states participating in the NFF.
(c) The exclusions enumerated above shall not apply to federal
manual criminal history record information collected, maintained, and
compiled by the FBI prior to the effective date of this subpart.
Sec. 20.33 Dissemination of criminal history record information.
(a) Criminal history record information contained in the III System
and the FIRS may be made available:
(1) To criminal justice agencies for criminal justice purposes,
which purposes include the screening of employees or applicants for
employment hired by criminal justice agencies;
(2) To federal agencies authorized to receive it pursuant to
federal statute or Executive order;
(3) For use in connection with licensing or employment, pursuant to
Public Law 92-544, 86 Stat. 1115, or other federal legislation, and for
other uses for which dissemination is authorized by federal law. Refer
to Sec. 50.12 of this chapter for dissemination guidelines relating to
requests processed under this paragraph;
(4) For issuance of press releases and publicity designed to effect
the apprehension of wanted persons in connection with serious or
significant offenses;
(5) To criminal justice agencies for the conduct of background
checks under the National Instant Criminal Background Check System
(NICS);
(6) To noncriminal justice governmental agencies performing
criminal justice dispatching functions or data processing/ information
services for criminal justice agencies; and
(7) To private contractors pursuant to a specific agreement with an
agency identified in paragraphs (a)(1) or (a)(6) of this section and
for the purpose of providing services for the administration of
criminal justice pursuant to that agreement. The agreement must
incorporate a security addendum approved by the Attorney General of the
United States, which shall specifically authorize access to criminal
history record information, limit the use of the information to the
purposes for which it is provided, ensure the security and
confidentiality of the information consistent with these regulations,
provide for sanctions, and contain such other provisions as the
Attorney General may require. The power and authority of the Attorney
General hereunder shall be exercised by the FBI Director (or the
Director's designee).
(b) The exchange of criminal history record information authorized
by paragraph (a) of this section is subject to cancellation if
dissemination is made outside the receiving departments, related
agencies, or service providers identified in paragraphs (a)(6) and
(a)(7) of this section.
(c) Nothing in these regulations prevents a criminal justice agency
from disclosing to the public factual information concerning the status
of an investigation, the apprehension, arrest, release, or prosecution
of an individual, the adjudication of charges, or the correctional
status of an individual, which is reasonably contemporaneous with the
event to which the information relates.
(d) Criminal history records received from the III System or the
FIRS shall be used only for the purpose requested and a current record
should be requested when needed for a subsequent authorized use.
Sec. 20.34 Individual's right to access criminal history record
information.
The procedures by which an individual may obtain a copy of his or
her identification record from the FBI to review and request any
change, correction, or update are set forth in Secs. 16.30-16.34 of
this chapter. The procedures by which an individual may obtain a copy
of his or her identification record from a state or local criminal
justice agency are set forth in Sec. 20.34 of the appendix to this
part.
Sec. 20.35 Criminal Justice Information Services Advisory Policy
Board.
(a) There is established a CJIS Advisory Policy Board, the purpose
of which is to recommend to the FBI Director general policy with
respect to the philosophy, concept, and operational principles of
various criminal justice information systems managed by the FBI's CJIS
Division.
(b) The Board includes representatives from state and local
criminal justice agencies; members of the judicial, prosecutorial, and
correctional segments of the criminal justice community; a
representative of federal agencies participating in the CJIS systems;
and representatives of criminal justice professional associations.
(c) All members of the Board will be appointed by the FBI Director.
(d) The Board functions solely as an advisory body in compliance
with the provisions of the Federal Advisory Committee Act. Title 5,
United States Code, Appendix 2.
Sec. 20.36 Participation in the Interstate Identification Index
System.
(a) In order to acquire and retain direct access to the III System,
each Control Terminal Agency and Federal Service Coordinator shall
execute a CJIS User Agreement (or its functional equivalent) with the
Assistant Director in Charge of the CJIS Division, FBI, to abide by all
present rules, policies, and procedures of the NCIC, as well as any
rules, policies, and procedures hereinafter recommended by the CJIS
Advisory Policy Board and adopted by the FBI Director.
(b) Entry or updating of criminal history record information in the
III System will be accepted only from state or federal agencies
authorized by the FBI. Terminal devices in other agencies will be
limited to inquiries.
Sec. 20.37 Responsibility for accuracy, completeness, currency, and
integrity.
It shall be the responsibility of each criminal justice agency
contributing data to the III System and the FIRS to assure that
information on individuals is kept complete, accurate, and current so
that all such records shall contain to the maximum extent feasible
dispositions for all arrest data included therein. Dispositions should
be submitted by criminal justice agencies within 120 days after the
disposition has occurred.
Sec. 20.38 Sanction for noncompliance.
Access to systems managed or maintained by the FBI is subject to
cancellation in regard to any agency or entity that fails to comply
with the provisions of subpart C of this part.
[[Page 52229]]
14. The appendix to part 20 is amended by revising the commentary
for subparts A and C to read as follows:
Appendix to Part 20--Commentary on Selected Sections of the Regulations
on Criminal History Record Information Systems
Subpart A-Sec. 20.3(d). The definition of criminal history
record information is intended to include the basic offender-based
transaction statistics/III System (OBTS/III) data elements. If
notations of an arrest, disposition, or other formal criminal
justice transaction occurs in records other than the traditional
``rap sheet,'' such as arrest reports, any criminal history record
information contained in such reports comes under the definition of
this subsection.
The definition, however, does not extend to other information
contained in criminal justice agency reports. Intelligence or
investigative information (e.g., suspected criminal activity,
associates, hangouts, financial information, and ownership of
property and vehicles) is not included in the definition of criminal
history information.
Sec. 20.3(g). The definitions of criminal justice agency and
administration of criminal justice in Sec. 20.3(b) of this part must
be considered together. Included as criminal justice agencies would
be traditional police, courts, and corrections agencies, as well as
subunits of noncriminal justice agencies that perform the
administration of criminal justice pursuant to a federal or state
statute or executive order and allocate a substantial portion of
their budgets to the administration of criminal justice. The above
subunits of noncriminal justice agencies would include, for example,
the Office of Investigation of the Food and Drug Administration,
which has as its principal function the detection and apprehension
of persons violating criminal provisions of the Federal Food, Drug
and Cosmetic Act. Also included under the definition of criminal
justice agency are umbrella-type administrative agencies supplying
criminal history information services, such as New York's Division
of Criminal Justice Services.
Sec. 20.3(i). Disposition is a key concept in section 524(b) of
the Act and in Secs. 20.21(a)(1) and 20.21(b) of this part. It
therefore is defined in some detail. The specific dispositions
listed in this subsection are examples only and are not to be
construed as excluding other, unspecified transactions concluding
criminal proceedings within a particular agency.
Sec. 20.3(q). The different kinds of acquittals and dismissals
delineated in Sec. 20.3(i) are all considered examples of
nonconviction data.
* * * * *
Subpart C-Sec. 20.31. This section defines the criminal history
record information system managed by the Federal Bureau of
Investigation. Each state having a record in the III System must
have fingerprints on file in the FBI CJIS Division to support the
III System record concerning the individual.
Paragraph (b) is not intended to limit the identification
services presently performed by the FBI for local, state, tribal,
and federal agencies.
Sec. 20.32. The grandfather clause contained in paragraph (c) of
this section is designed, from a practical standpoint, to eliminate
the necessity of deleting from the FBI's massive files the non-
includable offenses that were stored prior to February, 1973. In the
event a person is charged in court with a serious or significant
offense arising out of an arrest involving a non-includable offense,
the non-includable offense will also appear in the arrest segment of
the III System record.
Sec. 20.33(a)(3). This paragraph incorporates provisions cited
in 28 CFR 50.12 regarding dissemination of identification records
outside the federal government for noncriminal justice purposes.
Sec. 20.33(a)(6). Noncriminal justice governmental agencies are
sometimes tasked to perform criminal justice dispatching functions
or data processing/information services for criminal justice
agencies as part, albeit not a principal part, of their
responsibilities. Although such inter-governmental delegated tasks
involve the administration of criminal justice, performance of those
tasks does not convert an otherwise non-criminal justice agency to a
criminal justice agency. This regulation authorizes this type of
delegation if it is effected pursuant to executive order, statute,
regulation, or interagency agreement. In this context, the
noncriminal justice agency is servicing the criminal justice agency
by performing an administration of criminal justice function and is
permitted access to criminal history record information to
accomplish that limited function. An example of such delegation
would be the Pennsylvania Department of Administration's Bureau of
Consolidated Computer Services, which performs data processing for
several state agencies, including the Pennsylvania State Police.
Privatization of the data processing/information services or
dispatching function by the noncriminal justice governmental agency
can be accomplished pursuant to Sec. 20.33(a)(7) of this part.
Sec. 20.34. The procedures by which an individual may obtain a
copy of his manual identification record are set forth in 28 CFR
16.30-16.34.
The procedures by which an individual may obtain a copy of his
III System record are as follows: If an individual has a criminal
record supported by fingerprints and that record has been entered in
the III System, it is available to that individual for review, upon
presentation of appropriate identification, and in accordance with
applicable state and federal administrative and statutory
regulations. Appropriate identification includes being fingerprinted
for the purpose of insuring that he is the individual that he
purports to be. The record on file will then be verified as his
through comparison of fingerprints.
Procedure. 1. All requests for review must be made by the
subject of the record through a law enforcement agency which has
access to the III System. That agency within statutory or regulatory
limits can require additional identification to assist in securing a
positive identification.
2. If the cooperating law enforcement agency can make an
identification with fingerprints previously taken which are on file
locally and if the FBI identification number of the individual's
record is available to that agency, it can make an on-line inquiry
through NCIC to obtain his III System record or, if it does not have
suitable equipment to obtain an on-line response, obtain the record
from Clarksburg, West Virginia, by mail. The individual will then be
afforded the opportunity to see that record.
3. Should the cooperating law enforcement agency not have the
individual's fingerprints on file locally, it is necessary for that
agency to relate his prints to an existing record by having his
identification prints compared with those already on file in the
FBI, or, possibly, in the state's central identification agency.
4. The subject of the requested record shall request the
appropriate arresting agency, court, or correctional agency to
initiate action necessary to correct any stated inaccuracy in his
record or provide the information needed to make the record
complete.
Sec. 20.36. This section refers to the requirements for
obtaining direct access to the III System.
Sec. 20.37. The 120-day requirement in this section allows 30
days more than the similar provision in subpart B in order to allow
for processing time that may be needed by the states before
forwarding the disposition to the FBI.
PART 50--STATEMENTS OF POLICY
15. The authority citation for part 50 continues to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; and 42 U.S.C. 1921
et seq., 1973c.
16. Section 50.12 is revised to read as follows:
Sec. 50.12 Exchange of FBI identification records.
(a) The Federal Bureau of Investigation, hereinafter referred to as
the FBI, is authorized to expend funds for the exchange of
identification records with officials of federally chartered or insured
banking institutions to promote or maintain the security of those
institutions and, if authorized by state statute and approved by the
Director of the FBI, acting on behalf of the Attorney General, with
officials of state and local governments for purposes of employment and
licensing, pursuant to section 201 of Public Law 92-544, 86 Stat. 1115.
Also, pursuant to 15 U.S.C. 78q, 7 U.S.C. 21 (b)(4)(E), and 42 U.S.C.
2169, respectively, such records can be exchanged with certain segments
of the securities industry, with registered futures associations, and
with nuclear power plants. The records also may be exchanged in other
instances as authorized by federal law.
(b) The FBI Director is authorized by 28 CFR 0.85(j) to approve
procedures relating to the exchange of identification
[[Page 52230]]
records. Under this authority, effective September 6, 1990, the FBI
Criminal Justice Information Services (CJIS) Division has made all data
on identification records available for such purposes. Records obtained
under this authority may be used solely for the purpose requested and
cannot be disseminated outside the receiving departments, related
agencies, or other authorized entities. Officials at the governmental
institutions and other entities authorized to submit fingerprints and
receive FBI identification records under this authority must notify the
individuals fingerprinted that the fingerprints will be used to check
the criminal history records of the FBI. The officials making the
determination of suitability for licensing or employment shall provide
the applicants the opportunity to complete, or challenge the accuracy
of, the information contained in the FBI identification record. These
officials also must advise the applicants that procedures for obtaining
a change, correction, or updating of an FBI identification record are
set forth in 28 CFR 16.34. Officials making such determinations should
not deny the license or employment based on information in the record
until the applicant has been afforded a reasonable time to correct or
complete the record, or has declined to do so. A statement
incorporating these use-and-challenge requirements will be placed on
all records disseminated under this program. This policy is intended to
ensure that all relevant criminal record information is made available
to provide for the public safety and, further, to protect the interests
of the prospective employee/licensee who may be affected by the
information or lack of information in an identification record.
Dated: September 16, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-24988 Filed 9-27-99; 8:45 am]
BILLING CODE 4410-02-p
