[Federal Register Volume 71, Number 171 (Tuesday, September 5, 2006)]
[Proposed Rules]
[Pages 52302-52305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14605]


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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

28 CFR Part 20

[Docket No. FBI 111P; AG Order No. 2833-2006]
RIN 1110-AA25


Inclusion of Nonserious Offense Identification Records

AGENCY: Federal Bureau of Investigation, Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice (the Department) proposes to amend 
part 20 of its regulations appearing at title 28 of the Code of Federal 
Regulations (CFR) pertaining to criminal justice information systems 
and the appendix to that part. The amendment will permit the retention 
and exchange of criminal history record information (CHRI) and 
fingerprint submissions relating to nonserious offenses (NSOs) in the 
Federal Bureau of Investigation's

[[Page 52303]]

(FBI's) Fingerprint Identification Records System (FIRS) and the 
Interstate Identification Index (III) when provided by a criminal 
justice agency for retention by the FBI.

DATES: Written comments must be received on or before November 6, 2006.

ADDRESSES: All comments concerning this proposed rule should be mailed 
to: Assistant General Counsel Harold M. Sklar, Federal Bureau of 
Investigation, CJIS Division, Module E-3, 1000 Custer Hollow Road, 
Clarksburg, West Virginia 26306. To ensure proper handling, please 
reference FBI Docket No. 111P on your correspondence. You may view an 
electronic version of this proposed rule at http://www.regulations.gov. 
You may also comment via the Internet to the FBI at [email protected] or 
by using the http://www.regulations.gov comment form for this 
regulation. When submitting comments electronically, you must include 
FBI Docket No. 111P in the subject box.

FOR FURTHER INFORMATION CONTACT: Assistant General Counsel Harold M. 
Sklar, telephone number (304) 625-2000.

SUPPLEMENTARY INFORMATION: The Department proposes to amend section 
20.32 of part 20 of its regulations, and the Appendix thereto, defining 
the offenses that may serve as the basis for maintaining fingerprints 
and CHRI in its criminal history record information systems. The 
relevant FBI information systems include the FIRS, which maintains 
fingerprints records, and the III System, which maintains fingerprint-
supported CHRI. The amendment broadens the definition of includable 
offenses to permit the retention of information relating to currently 
excluded NSOs as well as information relating to ``serious and/or 
significant adult or juvenile offenses.'' The revised regulation will 
permit the retention and exchange of fingerprints and CHRI relating to 
NSOs when provided by the criminal justice agency, as defined in 28 CFR 
20.3(g), for retention by the FBI. Such NSO information is currently 
maintained only at the state and local levels. The proposed change will 
allow for the more uniform collection of CHRI at the Federal level. It 
will establish more uniform sharing of such information among the 
States by allowing States to make NSO information available for 
national criminal history record searches for both criminal justice and 
non-criminal justice purposes by submitting such information for 
retention by the FBI.
    The general authority for the FBI to collect and exchange CHRI is 
found in 28 U.S.C. 534(a), which states in pertinent part that the 
Attorney General shall ``acquire, collect, classify, and preserve 
identification, criminal identification, crime, and other records'' and 
``exchange such records and information with, and for the official use 
of, authorized officials of the Federal Government, including the 
United States Sentencing Commission, the States, cities, and penal and 
other institutions.''
    The term ``criminal history record information'' is defined in the 
regulations as follows:

* * * information collected by criminal justice agencies on 
individuals consisting of identifiable descriptions and notations of 
arrests, detentions, indictments, information, or other formal 
criminal charges, and any disposition arising therefrom, including 
acquittal, sentencing, correctional supervision, and release. The 
term does not include identification information such as fingerprint 
records if such information does not indicate the individual's 
involvement with the criminal justice system.

28 CFR 20.3(d)

    In 1974, the FBI implemented a policy limiting the acquisition and 
retention of NSOs, primarily based upon processing capacity concerns in 
a manual record keeping environment, i.e., before advances in 
technology made feasible the automated and digital storage and 
processing of much larger numbers of such records. See 39 FR 5636 (Feb. 
14, 1974). At that time, the Department promulgated a rule, published 
at 28 CFR 20.32 (Includable offenses), which states that CHRI 
maintained in the III and the FIRS shall include ``serious and/or 
significant adult and juvenile offenses,'' but exclude arrests and 
court actions concerning ``nonserious offenses'' that are not 
accompanied by a serious or significant offense. Examples given in the 
regulation of NSOs include ``drunkenness, vagrancy, disturbing the 
peace, curfew violation, loitering, false fire alarm, non-specific 
charges of suspicion or investigation, and traffic violations (except 
data will be included on arrests for vehicular manslaughter, driving 
under the influence of drugs or liquor, and hit and run).'' 28 CFR 
20.32(b).
    In Tarlton v. Saxbe, 407 F. Supp. 1083 (D.D.C. 1976), upon reversal 
and remand from Tarlton v. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974), the 
District Court for the District of Columbia interpreted this rule in a 
situation involving a plaintiff seeking to enjoin the dissemination of 
entries reflecting ``non-serious offenses'' in the FBI's system of 
records. The Tarlton court found that the language in 28 CFR 20.32(b) 
reflected the then-existing FBI policy, which excluded NSOs from the 
system [id. at 1087 n.15] and directed that NSOs ``are to be deleted 
from all FBI criminal records--upon request for dissemination for all 
individuals over age 35, and upon conversion to computerized files for 
all other individuals * * *.'' Id. at 1089. This decision was based on 
the content of the existing regulation rather than any other legal 
requirement. As a result of the District Court's decision, the FBI 
destroyed previously-retained NSOs that were unaccompanied by serious 
offenses.
    Since the 1970s, however, several events have prompted 
reconsideration of the language of section 20.32(b). First, definitions 
of ``serious'' or ``significant'' offenses and NSOs vary significantly 
among the States. Therefore, numerous states have requested exceptions 
from the FBI's regulatory restriction on submitting NSOs so that the 
FBI's repository of criminal history records would more closely mirror 
state-maintained criminal history repositories. Revising the FBI's 
policy to allow for retention of NSOs in the FBI's records systems also 
will help create a more uniform policy for collecting CHRI. This will 
increase the likelihood that law enforcement agencies in one state 
requesting criminal history searches for a criminal justice purpose 
will have the same information available to law enforcement agencies in 
the state where the records originate.
    Additionally, with the significant increase in requests for CHRI to 
conduct criminal background checks for noncriminal justice employment 
and licensing purposes, some NSOs have acquired greater significance. 
For example, a state school bus driver applicant in one state with a 
history of certain traffic offenses in another jurisdiction may be 
disqualified from employment based upon those traffic offenses under 
the law of his or her state of residence. However, if those traffic 
offenses from another state are NSOs and are not included in the FBI's 
systems of records, a check of the FBI's records would result in a 
response to the inquiring agency that no prior record was located. As a 
result, individuals with potentially disqualifying criminal records may 
gain employment in positions from which they would otherwise be 
prohibited. Therefore, permitting the FBI to retain and to exchange 
NSOs will assist in producing more complete and uniform background 
checks. At the same time, inclusion of NSOs in the FBI information 
systems will not affect the enforcement of state laws that require the 
filtering out or redaction of specified offenses, such as certain 
significant or

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non-significant offenses, in connection with licensing or employment 
checks. These restrictions on record dissemination are applied by the 
recipient or agency that has the authority to request the CHRI from the 
FBI.
    As originally promulgated, the rule served an administrative 
purpose to alleviate the workload in the 1970s when the FBI manually 
collected and stored fingerprint cards. By adopting the policy of not 
accepting fingerprint cards relating to NSOs, the FBI was then able to 
significantly reduce the number of fingerprint cards processed. In 
1999, however, the FBI initiated the Integrated Automated Fingerprint 
Identification System (IAFIS), an automated system for storing and 
searching digitized fingerprint images. Digitized fingerprint images 
require far less storage space than fingerprint cards; thus, IAFIS 
solved the legacy system's capacity problem. Furthermore, the 
introduction of IAFIS has resulted in more timely identifications 
predicated upon latent fingerprint submissions, including latent 
fingerprints obtained from crime scenes. Hence, retaining NSOs will 
increase law enforcement's latent fingerprint search capability by 
increasing the universe of criminal history record fingerprint 
submissions retained by the FBI against which a latent fingerprint 
search can be made.
    Based on the above considerations, we are proposing to amend 28 CFR 
20.32 to remove the existing distinction between ``serious and/or 
significant'' offenses and NSOs and to state more generally that 
``[t]he III System and the FIRS shall maintain all fingerprints and 
CHRI relating to adult and juvenile offenses submitted by criminal 
justice agencies for retention, consistent with the FBI's capacity to 
collect and exchange such information.''
    The NSOs will be acquired, collected, classified and preserved with 
all other CHRI. The procedures by which an individual may obtain a copy 
of his or her identification record from the FBI to review and to 
request any change, correction, or update are set forth in 28 CFR 20.34 
and Sec. Sec.  16.30-16.34.

Applicable Administrative Procedures and Executive Orders

Executive Order 12866

    The proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this proposed rule is a significant 
regulatory action under section 3(f) of Executive Order 12866, and 
accordingly this proposed rule has been reviewed by the Office of 
Management and Budget. The Department has also assessed the costs and 
benefits of this rule. As stated more fully in the Regulatory 
Flexibility Act section below, this rule imposes no costs on entities 
requesting information from the FBI because the request for information 
is entirely optional on the part of the requesting entity. In addition, 
the regulation imposes no cost on entities providing information to the 
FBI, as the new requirement is entirely dependent on what information 
those entities, in their discretion, choose to submit. The FBI 
anticipates that its costs for processing the additional information 
that this rule proposes to make available will be covered by its 
current and future appropriations. Further, the FBI believes that this 
rule provides substantial, but difficult to quantify, benefits by 
enhancing the reliability of background checks for noncriminal justice 
employment and licensing purposes and providing greater opportunity for 
latent fingerprint searches.

Executive Order 13132--Federalism

    This proposed regulation will not have a substantial, direct effect 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. While it provides that States may 
submit additional fingerprints, it does not require their submission.
    In drafting this proposed rule the FBI consulted the FBI's Criminal 
Justice Information Services (CJIS) Advisory Policy Board (APB). The 
CJIS APB is an advisory committee established pursuant to the Federal 
Advisory Committee Act, 5 U.S.C. App. 2. It consists of representatives 
of numerous Federal, State and local criminal justice agencies across 
the United States. It recommends general policy to the FBI Director 
regarding the philosophy, concept, and operational principles of the 
IAFIS, Law Enforcement Online, National Crime Information Center, 
National Instant Criminal Background Check System, Uniform Crime 
Reporting, and other systems and programs administered by the FBI's 
CJIS Division. Therefore, in accordance with Executive Order 13132, it 
is determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988--Civil Justice Reform

    The proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this proposed regulation and, by 
approving it, certifies that this regulation will not have a 
significant economic impact on a substantial number of small entities. 
This rule imposes no costs on businesses, organizations, or 
governmental jurisdictions (whether large or small). On the contrary, 
it proposes changes to Department regulations that will allow the FBI 
to respond more fully to requests for CHRI by including NSO 
information, thereby enhancing the utility of latent fingerprint 
searches and the reliability of background checks for noncriminal 
justice employment and licensing purposes.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by the Small 
Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. 
This proposed rule will not result in an annual effect on the economy 
of $100 million or more, a major increase in costs or prices, or have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Paperwork Reduction Act of 1995

    The proposed rule does not contain collection of information 
requirements. Therefore, clearance by the Office of Management and 
Budget under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is 
not required.

List of Subjects in 28 CFR Part 20

    Classified information, Crime, Intergovernmental relations, 
Investigations, Law enforcement, Privacy.

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    Accordingly, part 20 of title 28 of the Code of Federal Regulations 
is proposed to be amended as follows:

PART 20--CRIMINAL JUSTICE INFORMATION SYSTEMS

    1. Revise the authority citation for part 20 to read as follows:

    Authority: 28 U.S.C. 534; 42 U.S.C. 14614(c), 42 U.S.C. 14615; 
Pub. L. 92-544, 86 Stat. 1115; 42 U.S.C. 3711, et seq.; Pub. L. 99-
169, 99 Stat. 1002, 1008-1011, as amended by Pub. L. 99-569, 100 
Stat. 3190, 3196; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. 
L. 104-134, 110 Stat. 1321.
    2. Revise Sec.  20.32 to read as follows:


Sec.  20.32  Includable offenses.

    The III System and the FIRS shall maintain fingerprints and 
criminal history record information relating to adult and juvenile 
offenses submitted by criminal justice agencies for retention, 
consistent with the FBI's capacity to collect and exchange such 
information, except where non-retention of such fingerprints is 
specified by the submitting agency.
    3. In the appendix to part 20 revise the discussion of Sec.  20.32 
to read as follows:

Appendix to Part 20--Commentary on Selected Sections of the Regulations 
on Criminal History Record Information Systems

* * * * *
    Sec.  20.32. This section requires the FBI to retain all 
fingerprints and criminal history record information relating to 
adult or juvenile serious offenses submitted for retention by a 
criminal justice agency and enables the FBI to retain all 
fingerprints and criminal history record information relating to 
adult or juvenile nonserious offenses submitted for retention by a 
contributing agency, consistent with the FBI's authority to collect 
and exchange such information, as set out at 28 U.S.C. 534, except 
where non-retention of such fingerprints is specified by the 
submitting agency. The FBI is to implement this requirement 
consistent with the FBI's capacity to collect and exchange such 
information.

    Dated: August 28, 2006.
Paul J. McNulty,
Acting Attorney General.

[FR Doc. E6-14605 Filed 9-1-06; 8:45 am]
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