05-3041. Criminal History Record Screening for Authorized Noncriminal Justice Purposes

AGENCY:

National Crime Prevention and Privacy Compact Council.

ACTION:

Proposed rule, with request for comments.

SUMMARY:

The Compact Council, established pursuant to the National Crime Prevention and Privacy Compact (Compact), is publishing a rule proposing to establish criminal history record screening standards for criminal history record information received from the Interstate Identification Index (III) for authorized noncriminal justice purposes.

DATES:

Submit comments on or before March 21, 2005.

ADDRESSES:

Send all written comments concerning this proposed rule to the Compact Council Office, 1000 Custer Hollow Road, Module C3, Clarksburg, WV 26306; Attention: Todd C. Commodore. Comments may also be submitted by fax at [phone]. To ensure proper handling, please reference “Record Screening Procedures Docket No. 108” on your correspondence. You may view an electronic version of this proposed rule at http://www.regulations.gov. You may also comment via electronic mail at [e-mail] or by using the http://www.regulations.gov comment form for this regulation. When submitting comments electronically you must include NCPPC Docket No. 108 in the subject box.

FOR FURTHER INFORMATION CONTACT:

Ms. Donna M. Uzzell, Compact Council Chairman, Florida Department of Law Enforcement, PO Box 1489, Tallahassee, FL 32302, telephone number [phone].

SUPPLEMENTARY INFORMATION:

The National Crime Prevention and Privacy Compact, 42 U.S.C. 14611-16, establishes uniform standards and processes for the interstate and Federal-state exchange of criminal history records for noncriminal justice purposes. The Compact was approved by the Congress on October 9, 1998, (Pub. L. 105-251) and became effective on April 28, 1999, when ratified by the second state.

Article VI of the Compact establishes a Compact Council “which shall have the authority to promulgate rules and procedures governing the use of the III system for noncriminal justice purposes, not to conflict with FBI administration of the III system for criminal justice purposes”. The Council is proposing this rule under the authority of Compact Article VI.

The Compact requires that each Party State appoint a Compact officer to regulate the in-state use of records received by means of the III system from the FBI or from other Party States. Since January 2003, Nonparty States may sign a memorandum of understanding (MOU) with the Compact Council voluntarily binding the Signatory Nonparty States to the Council's rules, procedures, and standards for the noncriminal justice use of the III System. The MOUs between Nonparty States and the Compact Council are one mechanism to ensure system policy compliance until the states become Compact signatories. In order to implement Article IV(c), which provides inter alia that records obtained under the Compact by the requesting jurisdiction may only be used for the purpose requested and that the receiving jurisdiction must delete entries that may not legally be used for a particular noncriminal justice purpose, the Compact Council is proposing this rule to ensure that only legally authorized records are used for particular noncriminal justice purposes. This proposed rule will also facilitate national uniformity in criminal history record screening and editing practices applicable to information received via the III System for noncriminal justice purposes.

Administrative Procedures and Executive Orders

Administrative Procedure Act

This rule is published by the Compact Council as authorized by the National Crime Prevention and Privacy Compact (Compact), an interstate/Federal compact which was approved and enacted into law by Congress pursuant to Pub. L. 105-251. The Compact Council is composed of 15 members (with 11 state and local governmental representatives). The Compact specifically provides that the Council shall prescribe rules and procedures for the effective and proper use of the III System for noncriminal justice purposes, and mandates that such rules, procedures, or standards established by the Council shall be published in the Federal Register. See 42 U.S.C. 14616, Articles II(4), VI(a)(1), and VI(e). This publication complies with those requirements.

Executive Order 12866

The Compact Council is not an executive department or independent regulatory agency as defined in 44 U.S.C. 3502; accordingly, Executive Order 12866 is not applicable.

Executive Order 13132

The Compact Council is not an executive department or independent regulatory agency as defined in 44 U.S.C. 3502; accordingly, Executive Order 13132 is not applicable. Nonetheless, this Rule fully complies with the intent that the national government should be deferential to the States when taking action that affects the policymaking discretion of the States.

Executive Order 12988

The Compact Council is not an executive agency or independent establishment as defined in 5 U.S.C. 105; accordingly, Executive Order 12988 is not applicable.

Unfunded Mandates Reform Act

Approximately 75 percent of the Compact Council members are representatives of state and local governments; accordingly, rules prescribed by the Compact Council are not Federal mandates. Accordingly, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

The Small Business Regulatory Enforcement Fairness Act (Title 5, U.S.C. 801-804) is not applicable to the Council's rule because the Compact Council is not a “Federal agency” as defined by 5 U.S.C. 804(1). Likewise, the reporting requirement of the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act) does not apply. See 5 U.S.C. 804.

List of Subjects in 28 CFR Part 904

• Crime
• Health
• Privacy

Accordingly, title 28 of the Code of Federal Regulations, chapter IX is proposed to be amended by adding part 904 to read as follows:

PART 904—STATE CRIMINAL HISTORY RECORD SCREENING STANDARDS

904.1

Purpose and authority.

904.2

Interpretation of the criminal history record screening requirement.

904.3

State criminal history record screening standards.

Authority: 42 U.S.C. 14616.

§ 904.1

Purpose and authority.

Pursuant to the National Crime Prevention and Privacy Compact (Compact), title 42, U.S.C., chapter 140, subchapter II, section 14616, Article IV (c), the Compact Council hereby establishes record screening standards for criminal history record information received by means of the III System for noncriminal justice purposes.

§ 904.2

Interpretation of the criminal history record screening requirement.

Compact Article IV(c) provides that “Any record obtained under this Compact may be used only for the official purposes for which the record was requested.” Further, Article III(b)(1)(C) requires that each Party State appoint a Compact officer who shall “regulate the in-State use of records received by means of the III System from the FBI or from other Party States.” To ensure compliance with this requirement, Compact Officers receiving records from the FBI or other Party States are specifically required to “ensure that record entries that may not legally be used for a particular noncriminal justice purpose are deleted from the response and, if no information authorized for release remains, an appropriate 'no record' response is communicated to the requesting official.” Compact Article IV(c)(3).

§ 904.3

State criminal history record screening standards.

The following record screening standards relate to criminal history record information received for noncriminal justice purposes as a result of a national search subject to the Compact utilizing the III System.

(a) The State Criminal History Record Repository or an authorized agency in the receiving state will complete the record screening required under § 904.2 for all noncriminal justice purposes.

(b) Authorized officials performing record screening under § 904.3(a) shall screen the record to determine what information may legally be disseminated for the authorized purpose for which the record was requested. Such record screening will be conducted pursuant to the receiving state's applicable statute, executive order, regulation, formal determination or directive of the state attorney general, or other applicable legal authority.

(c) If the state receiving the record has no law, regulation, executive order, state attorney general directive, or other legal authority providing guidance on the screening of criminal history record information received from the FBI or another state as a result of a national search, then the record screening under § 904.3(a) shall be performed in the same manner in which the state screens its own records for noncriminal justice purposes.

Dated: January 29, 2005.

Donna M. Uzzell,

Compact Council Chairman.