[Federal Register Volume 70, Number 119 (Wednesday, June 22, 2005)]
[Rules and Regulations]
[Pages 36025-36027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12326]


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

NATIONAL CRIME PREVENTION AND PRIVACY COMPACT COUNCIL

28 CFR Part 901

[NCPPC 110]


Fingerprint Submission Requirements

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) Act of 1998, is 
finalizing a rule amending part 901, which codified the Compact 
Council's interpretation of the Compact's fingerprint-submission 
requirements as it relates to the use of the Interstate Identification 
Index (III) for noncriminal justice record checks during an emergency 
situation when the health and safety of a specified group may be 
endangered.

DATES: Effective Date: This final rule is effective on June 22, 2005.

FOR FURTHER INFORMATION CONTACT: Ms. Donna M. Uzzell, Compact Council 
Chairman, P.O. Box 1489, Tallahassee, FL 32302, telephone number (850) 
410-7100.

SUPPLEMENTARY INFORMATION: This document finalizes the Compact 
Council's proposed amendments to part 901 published in the Federal 
Register on December 5, 2003, (68 FR 67991). The Compact Council 
received no written comments on the proposed amendments and is 
finalizing the amended rule as proposed except for minor edits and 
clarifications.

Background

    The Compact provides that ``Subjects 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 requires 
that fingerprints be submitted contemporaneously with search

[[Page 36026]]

requests whenever feasible. However, in promulgating the Fingerprint 
Submission Requirements Rule (28 CFR part 901, published May 21, 2001), 
the Council acknowledged that exigent circumstances may exist where 
time is a critical factor in decision making and the immediate 
fingerprinting of the subject is not feasible. In such emergency 
circumstances, the Council interprets the Compact to permit preliminary 
name-based searches of the III System for noncriminal justice purposes 
provided that fingerprints are submitted within a time frame specified 
by the Council. This procedure allows immediate access to criminal 
history record information during exigent circumstances followed 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 (1) a statute approved by the U.S. Attorney 
General pursuant to Public Law 92-544 or (2) a Federal statute or 
Executive Order. Access authorized by the rule shall adhere to (1) the 
Compact, (2) the Criminal Justice Information Services (CJIS) Security 
Policy, and (3) applicable state security policies. A State or Federal 
noncriminal justice agency granted access to the III pursuant to part 
901 must also adhere to applicable State or Federal audit protocols.
    Proposals requesting delayed fingerprint submission authority 
pursuant to this rule should be sent to the Compact Council Chairman at 
the address set out above. Such proposals should include information 
sufficient to fully describe the emergency nature of the situation in 
which delayed submission authority is being sought, the risk to the 
health or safety of the individuals involved, and the reasons why the 
submission of fingerprints contemporaneously with the search request is 
not feasible.
    Section 901.3(d) of the rule provides that other states or 
authorized Federal agencies may apply for delayed submission authority 
consistent with a Compact Council-approved proposal through application 
to the FBI Compact Officer, FBI CJIS Division, 1000 Custer Hollow Road, 
Module C3, Clarksburg, WV 26306. For example, a Florida proposal for 
delayed submission authority involving the emergency placement of 
children was approved by the Council and published as a notice in the 
September 19, 2003, Federal Register. States and Federal agencies 
seeking similar access may submit an application to the FBI's Compact 
Officer rather than to the Council Chairman.
    Subsequent to publication of part 901, states authorized to conduct 
name-based checks articulated varying interpretations of the 
fingerprint submission time frame requirement. In order to eliminate 
these disparate interpretations, the Compact Council is amending the 
rule to define ``time frame'' by adding a sentence at the end of 
Subsection 901.3(c).
    Section 901.3 is also amended by adding paragraph (e) 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 FBI CJIS Division recently expanded its Audit Unit programs to 
include reviews of noncriminal justice agencies with direct access to 
the III System. The Council added Section 901.4 to address audits, 
identifying the State Compact Officer or the Chief Administrator of the 
Criminal History Record Repository in nonparty states as the 
responsible party to ensure that audits are conducted of approved state 
agencies. The responsible federal CJIS System Officer (formerly known 
as the Service Coordinator) will ensure that similar audits are 
conducted of authorized Federal agencies. The audit will verify 
adherence to the provisions of part 901 and the FBI CJIS Security 
Policy.
    When the amended proposed Fingerprint Submission Requirements rule 
was published on December 5, 2003, section 901.5 addressed compliance 
and sanctions related to use of this rule only. Subsequent to 
publication of the proposed amendments, the Compact Council published a 
proposed rule entitled ``Compact Council Procedures for Compliant 
Conduct and Responsible Use of the Interstate Identification Index 
(III) System for Noncriminal Justice Purposes'' (Sanctions Rule) on 
February 17, 2005. The Sanctions Rule establishes procedures to be used 
in determining compliant conduct and responsible use of III System 
records for any noncriminal justice purpose, including the purpose 
addressed in the Fingerprint Submission Requirements rule. Therefore, 
section 901.5 is removed from this final rule.

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) Act. (See Pub. 
L. 105-251.) The Compact Council, composed of 15 members including 11 
State and local governmental representatives, is authorized to 
promulgate rules, procedures, and standards for the effective and 
proper use of the Interstate Identification Index (III) System for 
noncriminal justice purposes. The Compact mandates that such rules, 
procedures, or standards 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.

[[Page 36027]]

List of Subjects in 28 CFR Part 901

    Crime, Health, Privacy, Safety.


0
Accordingly, part 901 of title 28 of the Code of Federal Regulations is 
revised to read as follows:

PART 901--FINGERPRINT SUBMISSION REQUIREMENTS

Sec.
901.1 Purpose and authority.
901.2 Interpretation of fingerprint submission requirements.
901.3 Approval of delayed fingerprint submission requests.
901.4 Audits.

    Authority: 42 U.S.C. 14616.


Sec.  901.1  Purpose and authority.

    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. The purpose of these provisions is 
to interpret the Compact, as it applies to the required submission of 
fingerprints, along with requests for Interstate Identification Index 
(III) records, by agencies authorized to access and receive criminal 
history records under Public Law 92-544, and to establish protocols and 
procedures applicable to the III and its use for noncriminal justice 
purposes.


Sec.  901.2  Interpretation of fingerprint submission requirements.

    (a) Article V of the Compact requires the submission of 
fingerprints or other approved forms of positive identification with 
requests for criminal history record checks for noncriminal justice 
purposes. The requirement for the submission of fingerprints may be 
satisfied in two ways:
    (1) The fingerprints should be submitted contemporaneously with the 
request for criminal history information, or
    (2) For purposes approved by the Compact Council, a delayed 
submission of fingerprints may be permissible under exigent 
circumstances.
    (b) A preliminary III name based check may be made pending the 
receipt of the delayed submission of the fingerprints. The state 
repository may authorize terminal access to authorized agencies 
designated by the state, to enable them to conduct such checks. Such 
access must be made pursuant to the security policy set forth by the 
state's Criminal Justice Information Services (CJIS) Systems Agency 
(formerly known as the Control Terminal Agency).


Sec.  901.3  Approval of delayed fingerprint submission requests.

    (a) A state may, based upon exigent circumstances, apply for 
delayed submission of fingerprints supporting requests for III records 
by agencies authorized to access and receive criminal history records 
under Public Law 92-544. Such applications must be sent to the Compact 
Council Chairman and include information sufficient to fully describe 
the emergency nature of the situation in which delayed submission 
authority is being sought, the risk to health and safety of the 
individuals involved, and the reasons why the submission of 
fingerprints contemporaneously with the search request is not feasible.
    (b) In evaluating requests for delayed submissions, the Compact 
Council must utilize the following criteria:
    (1) The risk to health and safety; and
    (2) The emergency nature of the request.
    (c) Upon approval of the application by the Compact Council, the 
authorized agency may conduct a III name check pending submission of 
the fingerprints. The fingerprints must be submitted within the time 
frame specified by the Compact Council. For the purposes of this part, 
``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.
    (d) Once a specific proposal has been approved by the Compact 
Council, another state may apply for delayed fingerprint submission 
consistent with the approved proposal, provided that the state has a 
related Public Law 92-544 approved state statute, by submitting the 
application to the FBI Compact Officer, 1000 Custer Hollow Road, Module 
C-3, Clarksburg, WV 26306-0001.
    (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.


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 the absence of 
a Compact Officer, the chief administrator for the criminal history 
record repository. The responsible Federal CJIS Systems Officer 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 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 CJIS Systems 
Officer.)
    (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.

    Dated: May 12, 2005.
Donna M. Uzzell,
Compact Council Chairman.
[FR Doc. 05-12326 Filed 6-21-05; 8:45 am]
BILLING CODE 4410-02-P