[Federal Register Volume 70, Number 222 (Friday, November 18, 2005)]
[Rules and Regulations]
[Pages 69897-69900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22850]


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NATIONAL CRIME PREVENTION AND PRIVACY COMPACT COUNCIL

28 CFR Part 907

[NCPPC 112]


Compact Council Procedures for Compliant Conduct and Responsible 
Use of the Interstate Identification Index (III) System for Noncriminal 
Justice Purposes

AGENCY: National Crime Prevention and Privacy Compact Council.

ACTION: Final rule.

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SUMMARY: The Compact Council, established pursuant to the National 
Crime Prevention and Privacy Compact (Compact), is publishing a rule 
that establishes procedures for ensuring compliant conduct and 
responsible use of the Interstate Identification Index (III) System for 
noncriminal justice purposes as authorized by Article VI of the 
Compact.

EFFECTIVE DATE: This rule is effective on December 19, 2005.

FOR FURTHER INFORMATION CONTACT: Ms. Donna M. Uzzell, Compact Council 
Chairman, Florida Department of Law Enforcement, 2331 Philips Road, 
Tallahassee, Florida 32308-5333, telephone number (850) 410-7100.

SUPPLEMENTARY INFORMATION: This document finalizes the Compact Council 
rule proposed in the Federal Register on February 17, 2005 (70 FR 
8050). The Compact Council requested that comments on the proposed rule 
be provided by March 21, 2005. Comments were not submitted; however, 
the Council made editorial changes.

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 
and 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).
    The Compact Council is not a federal agency as defined in the 
Administrative Procedure Act. Accordingly, rulemaking by the Compact 
Council pursuant to the Compact is not subject to the Act. However, the 
Compact specifically provides that the Compact Council shall prescribe 
rules and procedures for the effective and proper use of the Interstate 
Identification Index (III) System for noncriminal justice purposes, and

[[Page 69898]]

mandates that such rules, procedures, or standards established by the 
Compact Council 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. 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 Compact 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 907

    Privacy, Accounting, Auditing.

0
The National Crime Prevention and Privacy Compact Council is adding 
part 907 to chapter IX of title 28 Code of Federal Regulations to read 
as follows:

PART 907--COMPACT COUNCIL PROCEDURES FOR COMPLIANT CONDUCT AND 
RESPONSIBLE USE OF THE INTERSTATE IDENTIFICATION INDEX (III) SYSTEM 
FOR NONCRIMINAL JUSTICE PURPOSES

Sec.
907.1 Purpose and authority.
907.2 Applicability.
907.3 Assessing compliance.
907.4 Methodology for resolving noncompliance.
907.5 Sanction adjudication.

    Authority: 42 U.S.C. 14616.


Sec.  907.1  Purpose and authority.

    Part 907 establishes policies and procedures to ensure that use of 
the III System for noncriminal justice purposes complies with the 
National Crime Prevention and Privacy Compact (Compact) and with rules, 
standards, and procedures established by the Compact Council regarding 
application and response procedures, record dissemination and use, 
response times, data quality, system security, accuracy, privacy 
protection, and other aspects of III System operation for noncriminal 
justice purposes. The rule is established pursuant to Article VI of the 
Compact, which authorizes the Compact Council to promulgate rules, 
procedures, and standards governing the use of the III System for 
noncriminal justice purposes. The rule requires responsible authorized 
access to the System and proper use of records that are obtained from 
the System. The rule provides comprehensive procedures for a 
coordinated compliance effort among the Compact Council, the FBI, and 
local, State and Federal government agencies, and encourages the 
cooperation of all affected parties.


Sec.  907.2  Applicability.

    This rule applies to III System access for noncriminal justice 
purposes as covered by the Compact, see 42 U.S.C. 14614 and 14616, and 
use of information obtained by means of the System for such purposes. 
The rule establishes procedures for ensuring that the FBI's and Compact 
Party States' criminal history record repositories carry out their 
responsibilities under the Compact, as set out in the National 
Fingerprint File (NFF) Qualification Requirements, and that local, 
State and Federal government agencies using the III System for 
noncriminal justice purposes comply with the Compact and with 
applicable Compact Council rules.


Sec.  907.3  Assessing compliance.

    (a) The FBI CJIS Division staff regularly conducts systematic 
compliance reviews of state repositories. These reviews may include, as 
necessary, reviews of III System user agencies, including governmental 
and nongovernmental noncriminal justice entities that submit 
fingerprints to the State repositories and criminal justice and 
noncriminal justice agencies with direct access to the III System. 
These reviews may include, as necessary, the governmental and 
nongovernmental noncriminal justice entities authorized to submit 
fingerprints directly to the FBI. The reviews may consist of systematic 
analyses and evaluations, including on-site investigations, and shall 
be as comprehensive as necessary to adequately ensure compliance with 
the Compact and Compact Council rules. Violations may also be reported 
or detected independently of a review.
    (b) The FBI CJIS Division staff or the audit team established to 
review the FBI's noncriminal justice use of the III System shall 
prepare a draft report describing the nature and results of each review 
and set out all findings of compliance and noncompliance, including any 
reasons for noncompliance and the circumstances surrounding the 
noncompliance. If the agency under review is the FBI or another Federal 
agency, the draft report shall be forwarded to the FBI Compact Officer. 
If the agency under review is a State or local agency in a Party State, 
the draft report shall be forwarded to the State Compact Officer. If 
the agency under review is a State or local agency in a Nonparty State, 
the draft report shall be forwarded to the chief administrator of the 
State repository.
    (c) The Compact Officer of the FBI or a Party State or the chief 
administrator of the State repository in a Nonparty State shall be 
afforded the opportunity to forward comments and supporting materials 
to the FBI CJIS Division staff or to the audit team.
    (d) The FBI CJIS Division staff or the audit team shall review any 
comments and materials received and shall incorporate applicable 
revisions into a final report. The final report shall be provided to 
the Compact Officer of the FBI or a Party State or the chief 
administrator of the State repository in a Nonparty State to whom the 
draft report was sent. If the agency under review is a State or local 
agency, a copy of the report shall be provided to the FBI Compact 
Officer. If the agency under review is being reviewed for the first 
time, the letter transmitting the report shall provide that sanctions 
will not be imposed regarding any deficiencies set out in the report. 
The letter shall also advise, however, that the deficiencies must be 
remedied and failure to do so before the agency is

[[Page 69899]]

reviewed again will result in the initiation of remedial action 
pursuant to Sec.  907.4.


Sec.  907.4  Methodology for resolving noncompliance.

    (a) Subsequent to each compliance review that is not a first-time 
agency review, the final report shall be forwarded to the Compact 
Council Sanctions Committee (Sanctions Committee). The Sanctions 
Committee shall review the report and if it concludes that no 
violations occurred or no violations occurred that are serious enough 
to require further action, it shall forward its conclusions and 
recommendations to the Compact Council Chairman. If the Compact Council 
Chairman approves the Sanctions Committee's recommendations, the 
Compact Council Chairman shall send a letter to this effect to the FBI 
or Party State Compact Officer or the chief administrator of the state 
repository in a Nonparty State that has executed a Memorandum of 
Understanding. For all remaining states, the Compact Council Chairman 
shall forward the recommendations to the FBI Director or Designee who, 
upon approval of the recommendations, shall send a letter to this 
effect to the chief administrator of the state repository. If the 
agency under review is a state or local agency, a copy of the Compact 
Council Chairman's or FBI Director's or Designee's letter shall be 
provided to the FBI Compact Officer.
    (b) Should the Sanctions Committee conclude that a violation has 
occurred that is serious enough to require redress, the Sanctions 
Committee shall recommend to the Compact Council a course of action 
necessary to bring the offending agency into compliance and require the 
offending agency to provide assurances that subsequent violations will 
not occur. In making its recommendation, the Sanctions Committee shall 
consider the minimal action necessary to ensure compliance or shall 
explain why corrective action is not required. This may include, but 
not be limited to, requiring a plan of action by the offending agency 
to achieve compliance, with benchmarks and performance measures, and/or 
requiring the agency to seek technical assistance to identify sources 
of the problem and proposed resolutions. If the Compact Council or, 
when applicable, the FBI Director or Designee approves the Sanctions 
Committee's recommendations, progressive actions shall be initiated as 
set forth below. The letters referred to in this paragraph (907.4(b)) 
shall be from the Compact Council Chairman when the offending agency is 
the FBI or another federal agency, a state or local agency in a Party 
State, or a state or local agency in a Nonparty State that has executed 
a Memorandum of Understanding. The documentation and written responses 
from the aforementioned agencies to such letters shall be sent to the 
Compact Council Chairman. For all remaining states, the Compact Council 
Chairman shall forward the Compact Council's recommendations to the FBI 
Director or Designee who, upon approval of the recommendations, shall 
send the letters; accordingly, all documentation and written responses 
relating to the FBI Director's or Designee's letters shall be sent to 
the FBI Director or Designee who shall make such letters available to 
the Compact Council Chairman. If the offending agency is an agency 
other than the FBI or a state repository, any response letters from the 
offending agency shall be sent to the Compact Officer of the FBI or 
Party State or the chief administrator of the state repository in a 
Nonparty State and shall outline the course of action the offending 
agency will undertake to correct the deficiencies and provide 
assurances that subsequent violations will not recur.
    (1) As noted above, a letter shall be sent to the Compact Officer 
of the FBI or Party State or the chief administrator of the state 
repository in a Nonparty State identifying the violations and setting 
out the actions necessary to come into compliance. The letter shall 
provide that if compliance is not achieved and assurances provided that 
minimize the probability that subsequent violations will occur, and 
non-compliance is not excused, the Compact Council may authorize the 
FBI to refuse to process requests for criminal history record checks 
for noncriminal justice purposes from the offending agency and, if the 
offending agency is a criminal justice agency, may request the Director 
of the FBI to take appropriate action against the offending agency 
consistent with the recommendations of the Compact Council. The letter 
shall direct the Compact Officer of the FBI or Party State or the chief 
administrator of the state repository in a Nonparty State to submit a 
written response within 30 calendar days from the date of the letter, 
unless a more expeditious response is required. If the offending agency 
is a state or local agency, a copy of the Compact Council Chairman's or 
FBI Director's or Designee's letter shall be provided to the FBI 
Compact Officer. The Compact Council Chairman shall refer the response 
letter to the Sanctions Committee for appropriate action.
    (2) If the Sanctions Committee deems the response letter under 
paragraph (b)(1) of this section to be insufficient, or if no response 
is received within the allotted time, the Sanctions Committee shall 
report its finding to the Compact Council. If the Compact Council 
agrees with the Sanctions Committee's finding, a letter shall be sent 
to the Director of the FBI (if the offending agency is the FBI or 
another federal agency) or to the head of the state agency in which the 
state repository resides (if the offending agency is a state or local 
agency), requesting assistance in correcting the deficiencies. The 
letter shall provide that the offending agency is being placed on 
probationary status. A copy of the letter shall be sent to the Compact 
Officer of the FBI or Party State or the chief administrator of the 
state repository in a Nonparty State. If the offending agency is a 
state or local agency, a copy of the Compact Council Chairman's or FBI 
Director's or Designee's letter shall be provided to the FBI Compact 
Officer. A written response to the letter shall be required within 20 
calendar days from the date of the letter unless a more expeditious 
response is required. The Compact Council Chairman shall refer the 
response letter to the Sanctions Committee for appropriate action.
    (3) If the Sanctions Committee deems the response letter under 
paragraph (b)(2) of this section to be insufficient, or if no response 
is received within the allotted time, the Sanctions Committee shall 
report its finding to the Compact Council. If the Compact Council 
agrees with the Sanctions Committee's finding, a letter shall be sent 
to the U. S. Attorney General (if the offending agency is the FBI or 
another federal agency) or to the elected/appointed state official who 
has oversight of the department in which the state repository resides 
(if the offending agency is a state or local agency), requesting 
assistance in correcting the deficiencies. If the state official is not 
the Governor, a copy of the letter shall be sent to the Governor. A 
copy of the letter shall also be sent to the FBI Compact Officer and 
(if the offending agency is a state or local agency) to the State 
Compact Officer or the chief administrator of the state repository in a 
Nonparty State. The letter shall provide that a written response is 
required within 20 calendar days of the date of the letter, and that if 
a sufficient response is not received within that time, sanctions may 
be imposed that could result in suspension of the offending agency's 
access to the III System for noncriminal justice

[[Page 69900]]

purposes. The Compact Council Chairman shall refer the response letter 
to the Sanctions Committee for appropriate action.
    (4) If no response letter is received under paragraph (b)(3) of 
this section within the allotted time, or if the Sanctions Committee 
deems the response to be insufficient, the Sanctions Committee shall 
report its finding to the Compact Council. If the Compact Council 
agrees with the Sanctions Committee's finding, the Compact Council 
Chairman or the FBI Director or Designee shall direct the FBI Compact 
Officer to take appropriate action to suspend noncriminal justice 
access to the III System by the offending agency. If the offending 
agency is a criminal justice agency, the Compact Council Chairman shall 
request the Director of the FBI to take appropriate action to suspend 
noncriminal justice access to the III System by the offending agency.
    (5) Reinstatement of full service by the FBI shall occur after the 
Compact Officer of the FBI or a Party State or the chief administrator 
of the state repository in a Nonparty State provides satisfactory 
documentation that the deficiencies have been corrected or a process 
has been initiated to correct the deficiencies. Upon approval of the 
documentation by the Sanctions Committee in consultation with the 
Compact Council Chairman, the Compact Council Chairman or the FBI 
Director or Designee shall request the FBI Compact Officer to take 
appropriate action to reinstate full service. Letters to this effect 
shall be sent to all persons who have previously received letters 
relating to the deficiencies and resulting suspension of service. The 
decision to reinstate full service shall be considered for ratification 
by the Compact Council at its next regularly scheduled meeting.
    (c) For good cause, the Compact Council Chairman and the FBI 
Director or Designee shall be authorized to extend the number of days 
allowed for the response letters required by paragraphs (b)(1) through 
(3) of this section.


Sec.  907.5  Sanction adjudication.

    (a) A Compact Officer of the FBI or a Party State or the chief 
administrator of the state repository in a Nonparty State may dispute a 
sanction under this Part by asking the Compact Council Chairman for an 
opportunity to address the Compact Council.
    (b) Unresolved disputes based on the Compact Council's issuance of 
sanctions under this Part may be referred to the Compact Council 
Dispute Adjudication Committee when pertaining to disputes described 
under ARTICLE XI(a) of the Compact.
    (c) Nothing prohibits the Compact Council from requesting the FBI 
to exercise immediate and necessary action to preserve the integrity of 
the III System pursuant to Article XI(b) of the Compact.

    Dated: November 1, 2005.
Donna M. Uzzell,
Compact Council Chairman.
[FR Doc. 05-22850 Filed 11-17-05; 8:45 am]
BILLING CODE 4410-02-P