E7-150. Carriage of Concealed Weapons Pursuant to Public Law 108-277; the Law Enforcement Officers Safety Act of 2003

AGENCY:

Federal Bureau of Investigation (FBI), Department of Justice.

ACTION:

Notice of proposed rulemaking with request for comments.

SUMMARY:

The Department of Justice (the Department) is amending Title 28 of the Code of Federal Regulations to authorize access to FBI-maintained criminal justice information systems for the conduct of background checks for the purpose of issuing identification documents to retired law enforcement officers.

DATES:

Written comments must be received on or before March 26, 2007.

ADDRESSES:

All comments may be submitted to Assistant General Counsel Harold M. Sklar, Federal Bureau of Investigation, CJIS Division, 1000 Custer Hollow Road, Module E-3, Clarksburg, West Virginia, 26306, or by telefacsimile to [phone]. To ensure proper handling, please reference FBI Docket No. 113 on your correspondence. You may view an electronic version of this proposed rule at www.regulations.gov. You may also comment via electronic mail at [e-mail] or by using the www.regulations.gov comment form for this regulation. When submitting comments electronically you must include FBI Docket No. [2855-2007] in the subject box.

FOR FURTHER INFORMATION CONTACT:

Assistant General Counsel Harold M. Sklar, telephone number [phone].

SUPPLEMENTARY INFORMATION:

Background

The Department is amending part 20 of Title 28, “Criminal Justice Information Systems,” to authorize criminal justice agencies to access FBI criminal history record information appearing in the National Crime Information Center (NCIC) Interstate Identification Index (III) and the Fingerprint Identification Record System (FIRS) to support implementation of Public Law 108-277.

On July 22, 2004, the Law Enforcement Officers Safety Act of 2003 (Pub. L. 108-277) became law. Public Law 108-277 amended Title 18, United States Code, to exempt “qualified” current and retired law enforcement officers (LEOs) from State laws prohibiting the carrying of concealed firearms (except when state law restricts the possession of concealed firearms on public property or permits private property owners to restrict the possession of concealed firearms on their property). Under the new 18 U.S.C. 926C(d), retired LEOs seeking to exercise this privilege are required to possess photographic identification issued by the criminal justice agency (CJA) from which they retired from service.

On January 31, 2005, the Attorney General issued guidance on Public Law 108-277 mandating that Department of Justice (DOJ) Criminal Justice Components issue photographic identification (ID cards) to its eligible retired LEOs that identify their status as “retired law enforcement officers” and provide the date of retirement. Additionally, various CJAs have asked the FBI whether they may access the III database to screen their retired LEOs prior to issuing ID cards under the Act.

Section 534 of title 28, United States Code, generally permits the dissemination of III and FIRS information to CJAs for “official use.” Section 534 is implemented in this regard by 28 CFR part 20. Since 1974, access to and dissemination of III information under part 20 has been largely restricted to “criminal justice agencies for criminal justice purposes, which purposes include the screening of employees or applicants for employment hired by criminal justice agencies * * *.” 28 CFR 20.33(a)(1).

Although the term “criminal justice purpose” referenced in § 20.33(a)(1) is not specifically defined in the regulations, it has traditionally been considered to include activities within the definition of “administration of criminal justice” in § 20.3(b): “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.” Taken together, these regulations currently do not clearly support access to III and FIRS for the purpose of issuing identification documents for retired LEOs.

As a result, the FBI sought and obtained the concurrence of the Criminal Justice Information Services Advisory Policy Board (CJIS APB) (a body created pursuant to the Federal Advisory Committee Act, § 2, 5 U.S.C. App. 2) to amend the definition of “administration of criminal justice” to include background checks conducted for the purpose of issuing identification documents to retired LEOs pursuant to section 926C(d) of Public Law 108-277. To provide regulatory consistency, we also propose to relocate the reference in § 20.33(a)(1) to “the screening of employees or applicants for employment hired by criminal justice agencies” to the definition of “administration of criminal justice” appearing at § 20.3(b). We are also making clear in section 20.3(b) that the term “criminal justice purpose” includes activities defined as the “administration of criminal justice.”

This amendment will expressly authorize access to the III and the FIRS by Federal, state, and local CJAs for the purpose of issuing identification documents to eligible retired LEOs pursuant to Public Law 108-277. Further, inasmuch as the definitions appearing in 28 CFR 20.3 apply to both 28 CFR subparts B and C, this change resolves any ambiguity about the existing authority to access state criminal justice systems (in the absence of contrary state authority) to screen CJA applicants and employees.

Applicable Administrative Procedures and Executive Orders

Executive Order 12866—Regulatory Planning and Review

The proposed rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Department has determined that this rule is a significant regulatory action under section 3(f) of Executive Order 12866.

Executive Order 13132—Federalism

This rule will not have a substantial, direct effect 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 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988—Civil Justice Reform

The rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), has reviewed this rule and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities (5 U.S.C. 605(b)). This rule imposes minimal costs on businesses, organizations, or governmental jurisdictions (whether large or small).

Unfunded Mandates Reform Act of 1995

This 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 rule is not a “major rule” as defined by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804(2). This proposed rule will not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or have 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

The 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.

List of Subjects in 28 CFR Part 20

• Classified information
• Crime
• Intergovernmental relations
• Investigations
• Law enforcement
• Privacy

Accordingly, part 20 of title 28 of the Code of Federal Regulations is proposed to be amended as follows:

PART 20—CRIMINAL JUSTICE INFORMATION SYSTEMS

1. 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; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

2. Section 20.3 is amended by revising paragraph (b) to read as follows:

§ 20.3

Definitions.

As used in these regulations:

* * * * *

(b) Administration of criminal justice means the 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 term “criminal justice purpose” in 20 CFR 20.33(a)(1) includes activities defined as the “administration of criminal justice.” The administration of criminal justice also includes

(i) Criminal identification activities and the collection, storage, and dissemination of criminal history record information;

(ii) The screening of employees or applicants for employment hired by criminal justice agencies; and

(iii) The issuance of identification documents to current and retired law enforcement officers pursuant to Public Law 108-277.

* * * * *

3. Section § 20.33 is amended by revising paragraphs (a) introductory text and (a)(1) to read as follows:

§ 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;

* * * * *

Dated: January 2, 2007.

Alberto R. Gonzales,

Attorney General.