[Federal Register Volume 68, Number 234 (Friday, December 5, 2003)]
[Proposed Rules]
[Pages 67991-67993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29567]


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NATIONAL CRIME PREVENTION AND PRIVACY COMPACT COUNCIL

28 CFR Part 901

[NCPPC 105]


Proposed Amendments to the Fingerprint Submission Requirements 
Rule

AGENCY: National Crime Prevention and Privacy Compact Council.

ACTION: Proposed amendments to the rule, request for comments.

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SUMMARY: The Compact Council, established pursuant to the National 
Crime Prevention and Privacy Compact (Compact), is amending its 
Fingerprint Submission Requirements Rule which interprets the Compact's 
fingerprint-submission requirements as they relate to the use of the 
Interstate Identification Index (III) System for noncriminal justice 
record checks during an emergency situation when the health and safety 
of a specified group may be endangered. In addition, pursuant to the 
rule, the Compact Council approved an amended proposal from a State 
requesting the delayed submission of fingerprints when conducting 
criminal history records checks in connection with the temporary 
placement of children with temporary custodians during exigent 
circumstances.

DATES: Written comments must be submitted on or before January 5, 2004.

ADDRESSES: Send all written comments concerning the proposed amendments 
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 (304) 625-5388 or by electronic mail at 
[email protected]. To ensure proper handling, please reference ``Amended 
Fingerprint Submission Requirements'' on your correspondence.

FOR FURTHER INFORMATION CONTACT: Lt. Col. Jeffrey D. Harmon, Compact 
Council Chairman, Maine State Police, 36 Hospital Street, Augusta, 
Maine

[[Page 67992]]

04333-0042, telephone number (207) 624-7060.

SUPPLEMENTARY INFORMATION: The National Crime Prevention and Privacy 
Compact (Compact), 42 U.S.C. 14616, establishes uniform standards and 
processes for the interstate and Federal-State exchange of criminal 
history records for noncriminal justice purposes. The Compact 
eliminates barriers to the sharing of criminal history record 
information among the compact parties for noncriminal justice purposes. 
Article VI of the Compact provides for a Compact Council that has the 
authority to promulgate rules and procedures governing the use of the 
III System for noncriminal justice purposes.
    The Compact requires that subject's fingerprints or other approved 
forms of positive identification ``shall be submitted with all requests 
for criminal history record checks for noncriminal justice purposes.'' 
See 42 U.S.C. 14616, Article V(a). The Compact Council recognizes the 
extreme reliability of fingerprint-based identifications and believes 
that the above quoted provision requires that, whenever feasible, 
fingerprints should be submitted contemporaneously with search 
requests. In promulgating the Fingerprint Submission Requirements Rule 
(28 CFR Part 901), however, the Council acknowledged that there are 
exigent circumstances in which time is a critical factor in decision 
making and in which the immediate fingerprinting of the subject is not 
feasible. In such emergency circumstances, the Council interpreted the 
Compact to permit preliminary name searches of the III System for 
noncriminal justice purposes, provided that fingerprints are obtained 
and submitted within a time frame specified by the Council. This 
procedure allows access to criminal history record information in a 
timely manner in exigent circumstances with follow-up positive 
identification assured by fingerprint submissions.
    Part 901 authorizes state criminal history record repositories and 
the FBI, upon approval by the Compact Council, to grant access to the 
III System in emergency situations on a delayed fingerprint submission 
basis, predicated upon a statute approved by the U.S. Attorney General 
pursuant to Public Law 92-544 and Article III (c) of the Compact. 
Access authorized by part 901 must adhere to both the Criminal Justice 
Information Services Security Policy and applicable state security 
policies.
    Subsequent to the publication of Part 901, states that were 
authorized to conduct the name-based checks articulated varying 
interpretations of the fingerprint submission time frame. In order to 
eliminate these disparate interpretations, the Compact Council is 
amending the rule to define the term ``time frame'' by adding a 
sentence at the end of Subsection 901.3(b).
    Section 901.3 is also amended by adding paragraph (d) to clarify 
that part 901 is also applicable to Federal agencies authorized to 
access criminal history records pursuant to Federal statute or 
Executive Order for noncriminal justice purposes. The original rule 
identified only state agencies, and per the Compact's definition of 
``state'', an amendment to the rule is necessary. See 42 U.S.C. 14616, 
Article I(22).
    Recently, the FBI CJIS Division expanded its Audit Unit programs to 
include reviews of noncriminal justice agencies with direct access to 
the III System for emergency placement of children. Though the 
Background section of the original Federal Register publication 
establishing part 901 included verbiage addressing audits and 
sanctions, no such language was included in the Rule. The Compact 
Council has now approved the addition of language in the rule 
addressing audits and sanctions in order to reduce the potential for 
misinterpretation. Section 901.4 identifies the State Compact Officer 
or, in nonparty states, the Chief Administrator of the Criminal History 
Record Repository, as the responsible party to ensure that audits are 
conducted of approved state agencies, and the responsible Federal 
Service Coordinator will ensure that similar audits are conducted of 
authorized Federal agencies. The audits will verify adherence to the 
provisions of part 901 and the FBI Criminal Justice Information 
Services Security Policy. Section 901.4 also includes the details of 
records an authorized agency must maintain related to this III access 
under part 901 and requires that mechanisms to calculate the specified 
time frame for fingerprint submissions be included in the audit and 
compliance reviews.
    Sanctions for noncompliance as related to the audit methodology 
spelled out in section 901.4 are addressed in section 901.5. This 
section states that the Compact Council, or the FBI in consultation 
with the Compact Council, may impose sanctions according to rules, 
procedures, or standards established by the Council. Approved access to 
criminal history record information systems is subject to cancellation 
for violation of the National Crime Prevention and Privacy Compact Act 
or for failure to comply with part 901 or the FBI Criminal Justice 
Information Services Security Policy. The state's Compact Officer, the 
Chief Administrator of the Criminal History Record Repository in a 
nonparty state, or the Federal Service Coordinator may take similar 
actions, as applicable, against a State or Federal agency for failure 
to comply with applicable security policies.

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 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), 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 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.

[[Page 67993]]

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 901

    Crime, Health, Privacy, Safety.

    Accordingly, the Compact Council proposes to amend part 901 as 
follows:

PART 901--FINGERPRINT SUBMISSION REQUIREMENTS

    1. The authority citation for part 901 continues to read as 
follows;

    Authority: 42 U.S.C. 14616.

    2. Amend Sec.  901.3 as follows;
    a. By redesignationg paragraph (c) as paragraph (d);
    b. By designating the text following paragraph (b) as new paragraph 
(c) and adding a sentence to the end of the paragraph;
    c. By adding a new paragraph (e).
    The added text reads as follows:


Sec.  901.3  Approval of delayed fingerprint submission request.

* * * * *
    (c) * * * For the purposes of this rule, ``time frame'' means the 
number of days that elapse between the date on which the name search 
was conducted and the date on which the state repository either 
positively identifies the fingerprint subject or forwards the 
fingerprints to the FBI or the date a Federal agency forwards the 
fingerprints to the FBI.
* * * * *
    (e) Part 901 is also applicable to any federal agency authorized to 
access criminal history records pursuant to Federal statute or 
Executive Order for noncriminal justice purposes.
    3. Amend part 901 by adding Sec. Sec.  901.4 and 901.5 to read as 
follows:


Sec.  901.4  Audits.

    (a) Audits of authorized State agencies that access the III System 
shall be conducted by the State's Compact Officer or, in absence of a 
Compact Officer, the chief administrator for the criminal history 
record repository. The responsible Federal service coordinator shall 
ensure that similar audits are conducted of authorized Federal 
agencies. Such audits shall be conducted to verify adherence to the 
provisions of part 901 and the FBI's Criminal Justice Information 
Services (CJIS) Security Policy.
    (b) Authorized agencies shall cause to be collected an appropriate 
record of each instance of III System access through a manual or 
electronic log. The log shall be maintained for a minimum one-year 
period to facilitate the audits and compliance reviews. Such records 
shall be maintained in accordance with the CJIS Security Policy. (For 
information on this security policy, contact your State Control 
Terminal Officer or Federal Service Coordinator.)
    (c) The audit and compliance reviews must include mechanisms to 
determine whether fingerprints were submitted within the time frame 
specified by the Compact Council.
    (d) In addition to the audits as stated above, the FBI CJIS Audit 
staff shall also conduct routine systematic compliance reviews of State 
repositories, Federal agencies, and as necessary other authorized III 
System user agencies.


Sec.  901.5  Sanction for noncompliance.

    The Compact Council, or the FBI in consultation with the Compact 
Council, may impose sanctions in accordance with rules, procedures, or 
standards as established by the Council. The approval for access to 
criminal history record information systems for noncriminal justice 
purposes is subject to cancellation or discontinuance for violation of 
the National Crime Prevention and Privacy Compact Act, failure to 
comply with the provisions of part 901, or failure to comply with the 
FBI Criminal Justice Information Services Security Policy (See Sec.  
901.4(b)). The State's Compact Officer, the chief administrator of the 
criminal history record repository or the Federal Service Coordinator 
may take similar actions, as applicable, against a State or Federal 
agency for failure to comply with applicable security policies.

    Dated: November 5, 2003.
Jeffrey D. Harmon,
Compact Council Chairman.
[FR Doc. 03-29567 Filed 12-4-03; 8:45 am]
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