[Federal Register Volume 68, Number 228 (Wednesday, November 26, 2003)]
[Rules and Regulations]
[Pages 66340-66342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29568]


=======================================================================
-----------------------------------------------------------------------

NATIONAL CRIME PREVENTION AND PRIVACY COMPACT COUNCIL

28 CFR Part 902

[NCPPC 106]


Dispute Adjudication Procedures

AGENCY: National Crime Prevention and Privacy Compact Council.

ACTION: Final rule.

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

SUMMARY: The Compact Council established pursuant to the National Crime 
Prevention and Privacy Compact (Compact) is publishing this rule to 
establish Dispute Adjudication Procedures. These procedures support 
Article XI of the Compact.

EFFECTIVE DATE: This final rule is effective on December 26, 2003.

FOR FURTHER INFORMATION CONTACT: Lt. Col. Jeffrey D. Harmon, Compact 
Council Chairman, Maine State Police, 36 Hospital Street, Augusta, 
Maine 04333-0042, telephone number (207) 624-7060.

SUPPLEMENTARY INFORMATION: This document finalizes the Compact Council 
rule proposed in the Federal Register on November 25, 2002, (67 FR 
70567). The Compact Council accepted comments on the proposed rule from 
interested parties until December 26, 2002, and is finalizing the rule 
with certain changes in response to the comments.

Significant Comments or Changes

    Two comments from the same party questioned the Council's reference 
in the Supplementary Information that ``the Compact eliminates barriers 
to the sharing of criminal history record information among Compact 
parties for noncriminal justice purposes'', asking if the Compact 
encompassed all noncriminal justice purposes or only those criminal 
history record information requests supported by fingerprint 
submissions. The Council's response was that the Compact encompasses 
all noncriminal justice purposes. The second comment asked for 
verification of the quoted statement in the Supplementary Information 
that ``Article VI of the Compact provides for a Compact Council that 
has the authority to promulgate rules and procedures governing the use 
of the Interstate Identification Index (III) System for noncriminal 
justice purposes, not to conflict with the FBI administration of the 
III System for criminal justice purposes.'' The Council's response was 
that this is a direct quote from the Compact, 28 CFR 14616, Article VI.
    Nine comments referencing particular subsections of the proposed 
rule were received from a second party. The first comment referenced 
the use of and subsequent referral to the term ``directly aggrieved'' 
(Sec.  902.2, paragraphs (a) and (b)). To eliminate what was 
interpreted as a ``circular'' reference, the Council is revising 
paragraph (a) to state,
    ``Cognizable disputes may be based upon:
* * * * *'',

while paragraph (b) is left unchanged.
    A second comment asked the following questions about section 
902.3(a): What if the dispute also poses a conflict of interest for the 
Chair? Could a deputy name the substitute member? The Council's 
original intent was that any Committee member with a conflict of 
interest would excuse him/herself from the hearing on that topic. 
Clarifying language is being added to 902.3 paragraph (a):

    In the case when the Compact Council Chair is the committee 
member with the conflict, the Chair shall take appropriate steps to 
appoint a replacement that resolves the conflict.

    Comment 3, on section 902.3(c), labeled the use of the phrase 
``lean toward'' as vague. The Council is modifying paragraph (c) to 
indicate that the dispute resolution committee shall recommend hearings 
to all disputants who raise issues that are not clearly frivolous or 
without merit, and that the committee will give written explanation

[[Page 66341]]

when a hearing is not recommended. Section 902.3(c) is being amended 
accordingly.
    Another comment expressed a concern that subsection 902.4(b) seemed 
to allow only the Federal Bureau of Investigation or a Party State to 
appeal to the U.S. Attorney General when a hearing was denied. The 
Council modified this subsection to allow any disputant to appeal to 
the Attorney General and provide that the Attorney General has the 
discretion to consider the appeal and grant a hearing.
    Comment 5 referred to 902.5, Hearing Procedures, asking if 
disputants would be allowed to cross-examine witnesses and introduce 
evidence at a hearing, if there was any way to compel the attendance of 
witnesses or production of documents, and if there are any restrictions 
on a disputant acting as his/her own attorney? The Council agreed to 
modify subsection (c)(4) to state, ``Call and cross-examine 
witnesses.'' Council discussion acknowledged there is no way to compel 
the attendance of witnesses or production of documents or to restrict a 
disputant acting as his/her own attorney.
    Comment 6 referenced 902.5(e), asking if the intent of the Council 
was to allow a Council member who raised a dispute to participate fully 
in the hearing and vote on the final Council decision, as this could be 
construed as a conflict of interest. Based on input from the Department 
of Justice, the Council decided to leave the original language intact.
    When Congress passed the National Crime Prevention and Privacy 
Compact Act of 1998, it set forth specific language regarding the 
composition of the Compact Council, with a particular number of members 
representing the states, federal agencies, and criminal/noncriminal 
justice constituencies, each seat representing a vote on issues--
including the adjudication of disputes. Requiring a member to recuse 
himself from a dispute hearing might result in removing a particular 
constituency's vote, contravening the intent of Congress.
    Another comment questioned the language in section 902.5(h), asking 
if recording and transcription of a hearing might not always be 
necessary. The Council agreed to modify the language as follows:

    The proceedings of the hearing will be recorded and, as 
necessary, transcribed. A transcript of the hearing shall be made 
and forwarded to the Attorney General if an appeal is filed pursuant 
to section (c) of Article XI of the Compact.

    The next comment asked what defined a majority vote of Council 
members. According to Compact Article VI and the Council's Bylaws, 
section 8.8, a quorum of Council members or any Committee of the 
Council is defined as a simple majority. No vote shall be taken without 
a quorum. The Council is revising 902.5(i) to add the references to 
Article VI and the Bylaws.
    A final comment questioned if the rule was modeled after any 
existing precedents. The Council responded that the rule was structured 
according to current administrative procedures, but was not modeled 
after an existing precedent.

Administrative Procedures and Executive Orders

Administrative Procedures Act

    This rule is published by the Compact Council as authorized by the 
National Crime Prevention and Privacy Compact (Compact), an interstate/
federal state compact which was approved and enacted into legislation 
by Congress pursuant to Pub. L. 105-251. The Compact Council is 
composed of 15 members (with 11 state and local governmental 
representatives), and is authorized by the Compact to promulgate rules 
and procedures for the effective and proper use of the Interstate 
Identification Index (III) System for noncriminal justice purposes. 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 U.S. 42 .C.16, 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 in 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 902

    Administrative Practice and Procedure.

0
Accordingly, Chapter IX of Title 28 Code of Federal Regulations is 
amended by adding Part 902 to read as follows:

PART 902--DISPUTE ADJUDICATION PROCEDURES

Sec.
902.1 Purpose and authority.
902.2 Raising disputes.
902.3 Referral to Dispute Resolution Committee.
902.4 Action by Council Chairman.
902.5 Hearing procedures.
902.6 Appeal to the Attorney General.
902.7 Court action.

    Authority: 42 U.S.C. 14616.


Sec.  902.1  Purpose and authority.

    The purpose of Part 902 is to establish protocols and procedures 
for the adjudication of disputes by the Compact Council. The Compact 
Council is established pursuant to the National Crime Prevention and 
Privacy Compact (Compact), Title 42, U.S.C., Chapter 140, Subchapter 
II, Section 14616.


Sec.  902.2  Raising disputes.

    (a) Cognizable disputes may be based upon:
    (1) A claim that the Council has misinterpreted the Compact or one 
of the Council's rules or standards established under Article VI of the 
Compact;
    (2) A claim that the Council has exceeded its authority under the 
Compact;

[[Page 66342]]

    (3) A claim that in establishing a rule or standard or in taking 
other action, the Council has failed to comply with its bylaws or other 
applicable procedures established by the Council; or the rule, standard 
or action is not otherwise in accordance with applicable law; or
    (4) A claim by a Compact Party that another Compact Party has 
failed to comply with a provision of the Compact or with any rule or 
standard established by the Council.
    (b) Only a Party State, the FBI, or a person, organization, or 
government entity directly aggrieved by the Council's interpretation of 
the Compact or any rule or standard established by the Council pursuant 
to the Compact, or in connection with a matter covered under Section 
902.2(a)(4), may raise a cognizable dispute. Such disputants may 
request a hearing on a dispute by contacting the Compact Council 
Chairman in writing at the Compact Council Office, Module C3, 1000 
Custer Hollow Road, Clarksburg, West Virginia 26306.
    (c) The Chairman may ask the requester for more particulars, 
supporting documentation or materials as the circumstances warrant.
    (d) A dispute may not be based solely upon a disagreement with the 
merits (substantive wisdom or advisability) of a rule or standard 
validly established by the Council within the scope of its authority 
under the Compact. However, nothing in this rule prohibits further 
discussion of the merits of a rule or standard at any regularly 
scheduled Council meeting.


Sec.  902.3  Referral to Dispute Resolution Committee.

    (a) The five person Dispute Resolution Committee membership shall 
be determined according to Compact Article VI (g). Should a dispute 
arise with an apparent conflict of interest between the disputant and a 
Committee member, the Committee member shall recuse himself/herself and 
the Compact Council Chairman shall determine an appropriate substitute 
for that particular dispute. In the case when the Compact Council 
Chairman is the committee member with the conflict, the Chairman shall 
take appropriate steps to appoint a replacement that resolves the 
conflict.
    (b) The Compact Council Chairman shall refer the dispute, together 
with all supporting documents and materials, to the Council's Dispute 
Resolution Committee.
    (c) The Dispute Resolution Committee shall recommend hearings to 
all disputants who raise issues that are not clearly frivolous or 
without merit. If the Committee recommends denying a hearing, it must 
articulate its reason or reasons for doing so in writing.
    (d) The Dispute Resolution Committee shall consider the matter and:
    (1) Refer it to the Council for a hearing;
    (2) Recommend that the Council deny a hearing if the Committee 
concludes that the matter does not constitute a cognizable dispute 
under Sec.  902.2(a); or
    (3) Request more information from the person or organization 
raising the dispute or from other persons or organizations.


Sec.  902.4  Action by Council Chairman.

    (a) The Chairman shall communicate the decision of the Dispute 
Resolution Committee to the person or organization that raised the 
dispute.
    (b) If a hearing is not granted, the disputant may appeal this 
decision to the Attorney General. If the Attorney General believes the 
disputant has raised an issue that is not frivolous or without merit, 
the Attorney General may order the Compact Council Chairman to grant a 
hearing.
    (c) If a hearing is granted, the Chairman shall:
    (1) Include the dispute on the agenda of a scheduled meeting of the 
Council or, at the Chairman's discretion, schedule a special Council 
meeting;
    (2) Notify the person or organization raising the dispute as to the 
date of the hearing and the rights of disputants under Sec.  902.5 
(Hearing Procedures); and
    (3) Include the matter of the dispute in the prior public notice of 
the Council meeting required by Article VI (d)(1) of the Compact.


Sec.  902.5  Hearing procedures.

    (a) The hearing shall be open to the public pursuant to Article VI 
(d)(1) of the Compact.
    (b) The Council Chairman or his/her designee shall preside over the 
hearing and may limit the number of, and the length of time allowed to, 
presenters or witnesses.
    (c) The person or organization raising the dispute or a Compact 
Party charged under the provisions of Sec.  902.2(a)(4) shall be 
entitled to:
    (1) File additional written materials with the Council at least ten 
days prior to the hearing;
    (2) Appear at the hearing, in person and/or by counsel;
    (3) Make an oral presentation; and
    (4) Call and cross-examine witnesses.
    (d) Subject to the discretion of the Chairman, other persons and 
organizations may be permitted to appear and make oral presentations at 
the hearing or provide written materials to the Council concerning the 
dispute.
    (e) All Council members, including a member or members who raised 
the dispute that is the subject of the hearing shall be entitled to 
participate fully in the hearing and vote on the final Council decision 
concerning the dispute.
    (f) The Council shall, if necessary, continue the hearing to a 
subsequent Council meeting.
    (g) Summary minutes of the hearing shall be made and transcribed 
and shall be available for inspection by any person at the Council 
office within the Federal Bureau of Investigation.
    (h) The proceedings of the hearing shall be recorded and, as 
necessary, transcribed. A transcript of the hearing will be made and 
forwarded to the Attorney General if an appeal is filed pursuant to 
Section (c) of Article XI of the Compact.
    (i) The Council's decision on the dispute shall be based upon a 
majority vote of Council members or their proxies present (as per 
Compact Article VI and Council Bylaws) and voting at the hearing. The 
Council's decision on the dispute shall be published in the Federal 
Register as provided by Section (a)(2) of Article XI and Section (e) of 
Article VI.
    (j) The Council Chairman shall advise Council members and hearing 
participants of the right of appeal provided by Section (c) of Article 
XI of the Compact.


Sec.  902.6  Appeal to the Attorney General.

    (a) The Federal Bureau of Investigation or a Compact Party State 
may appeal the decision of the Council to the U.S. Attorney General 
pursuant to Section (c) of Article XI of the Compact.
    (b) Appeals shall be filed and conducted pursuant to rules and 
procedures that may be established by the Attorney General.
    (c) Appropriate notice of an appeal shall be communicated to the 
Council Chairman by the appealing party.


Sec.  902.7  Court action.

    Pursuant to Section (c) of Article XI of the Compact, a decision by 
the Attorney General on an appeal under Sec.  902.6 may be appealed by 
filing a suit seeking to have the decision reversed in the appropriate 
district court of the United States.

    Dated: November 5, 2003.
Jeffrey D. Harmon,
Compact Council Chairman.
[FR Doc. 03-29568 Filed 11-25-03; 8:45 am]
BILLING CODE 4410-02-P