[Federal Register Volume 72, Number 14 (Tuesday, January 23, 2007)]
[Proposed Rules]
[Pages 2817-2819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-150]


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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

28 CFR Part 20

[Docket No. FBI 113; AG Order No. 2855-2007]
RIN 1110-AA24


Carriage of Concealed Weapons Pursuant to Public Law 108-277; the 
Law Enforcement Officers Safety Act of 2003

AGENCY: Federal Bureau of Investigation (FBI), Department of Justice.

ACTION: Notice of proposed rulemaking with request for comments.

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SUMMARY: The Department of Justice (the Department) is amending Title 
28 of the Code of Federal Regulations to authorize access to FBI-
maintained criminal justice information systems for

[[Page 2818]]

the conduct of background checks for the purpose of issuing 
identification documents to retired law enforcement officers.

DATES: Written comments must be received on or before March 26, 2007.

ADDRESSES: All comments may be submitted to Assistant General Counsel 
Harold M. Sklar, Federal Bureau of Investigation, CJIS Division, 1000 
Custer Hollow Road, Module E-3, Clarksburg, West Virginia, 26306, or by 
telefacsimile to (304) 625-3944. To ensure proper handling, please 
reference FBI Docket No. 113 on your correspondence. You may view an 
electronic version of this proposed rule at www.regulations.gov. You 
may also comment via electronic mail at [email protected] or by using the 
www.regulations.gov comment form for this regulation. When submitting 
comments electronically you must include FBI Docket No. [2855-2007] in 
the subject box.

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

SUPPLEMENTARY INFORMATION:

Background

    The Department is amending part 20 of Title 28, ``Criminal Justice 
Information Systems,'' to authorize criminal justice agencies to access 
FBI criminal history record information appearing in the National Crime 
Information Center (NCIC) Interstate Identification Index (III) and the 
Fingerprint Identification Record System (FIRS) to support 
implementation of Public Law 108-277.
    On July 22, 2004, the Law Enforcement Officers Safety Act of 2003 
(Pub. L. 108-277) became law. Public Law 108-277 amended Title 18, 
United States Code, to exempt ``qualified'' current and retired law 
enforcement officers (LEOs) from State laws prohibiting the carrying of 
concealed firearms (except when state law restricts the possession of 
concealed firearms on public property or permits private property 
owners to restrict the possession of concealed firearms on their 
property). Under the new 18 U.S.C. 926C(d), retired LEOs seeking to 
exercise this privilege are required to possess photographic 
identification issued by the criminal justice agency (CJA) from which 
they retired from service.
    On January 31, 2005, the Attorney General issued guidance on Public 
Law 108-277 mandating that Department of Justice (DOJ) Criminal Justice 
Components issue photographic identification (ID cards) to its eligible 
retired LEOs that identify their status as ``retired law enforcement 
officers'' and provide the date of retirement. Additionally, various 
CJAs have asked the FBI whether they may access the III database to 
screen their retired LEOs prior to issuing ID cards under the Act.
    Section 534 of title 28, United States Code, generally permits the 
dissemination of III and FIRS information to CJAs for ``official use.'' 
Section 534 is implemented in this regard by 28 CFR part 20. Since 
1974, access to and dissemination of III information under part 20 has 
been largely restricted to ``criminal justice agencies for criminal 
justice purposes, which purposes include the screening of employees or 
applicants for employment hired by criminal justice agencies * * *.'' 
28 CFR 20.33(a)(1).
    Although the term ``criminal justice purpose'' referenced in Sec.  
20.33(a)(1) is not specifically defined in the regulations, it has 
traditionally been considered to include activities within the 
definition of ``administration of criminal justice'' in Sec.  20.3(b): 
``performance of any of the following activities: Detection, 
apprehension, detention, pretrial release, post-trial release, 
prosecution, adjudication, correctional supervision, or rehabilitation 
of accused persons or criminal offenders.'' Taken together, these 
regulations currently do not clearly support access to III and FIRS for 
the purpose of issuing identification documents for retired LEOs.
    As a result, the FBI sought and obtained the concurrence of the 
Criminal Justice Information Services Advisory Policy Board (CJIS APB) 
(a body created pursuant to the Federal Advisory Committee Act, Sec.  
2, 5 U.S.C. App. 2) to amend the definition of ``administration of 
criminal justice'' to include background checks conducted for the 
purpose of issuing identification documents to retired LEOs pursuant to 
section 926C(d) of Public Law 108-277. To provide regulatory 
consistency, we also propose to relocate the reference in Sec.  
20.33(a)(1) to ``the screening of employees or applicants for 
employment hired by criminal justice agencies'' to the definition of 
``administration of criminal justice'' appearing at Sec.  20.3(b). We 
are also making clear in section 20.3(b) that the term ``criminal 
justice purpose'' includes activities defined as the ``administration 
of criminal justice.''
    This amendment will expressly authorize access to the III and the 
FIRS by Federal, state, and local CJAs for the purpose of issuing 
identification documents to eligible retired LEOs pursuant to Public 
Law 108-277. Further, inasmuch as the definitions appearing in 28 CFR 
20.3 apply to both 28 CFR subparts B and C, this change resolves any 
ambiguity about the existing authority to access state criminal justice 
systems (in the absence of contrary state authority) to screen CJA 
applicants and employees.

Applicable Administrative Procedures and Executive Orders

Executive Order 12866--Regulatory Planning and Review

    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 rule is a significant regulatory 
action under section 3(f) of Executive Order 12866.

Executive Order 13132--Federalism

    This rule 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. 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 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. 601 et seq.), has reviewed this rule and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities (5 U.S.C. 605(b)). 
This rule imposes minimal costs on businesses, organizations, or 
governmental jurisdictions (whether large or small).

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.

[[Page 2819]]

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a ``major rule'' as defined by the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804(2). 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 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.

    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. The authority citation for part 20 continues to read as follows:

    Authority: 28 U.S.C. 534; 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. Section 20.3 is amended by revising paragraph (b) to read as 
follows:


Sec.  20.3  Definitions.

    As used in these regulations:
* * * * *
    (b) Administration of criminal justice means the performance of any 
of the following activities: Detection, apprehension, detention, 
pretrial release, post-trial release, prosecution, adjudication, 
correctional supervision, or rehabilitation of accused persons or 
criminal offenders. The term ``criminal justice purpose'' in 20 CFR 
20.33(a)(1) includes activities defined as the ``administration of 
criminal justice.'' The administration of criminal justice also 
includes
    (i) Criminal identification activities and the collection, storage, 
and dissemination of criminal history record information;
    (ii) The screening of employees or applicants for employment hired 
by criminal justice agencies; and
    (iii) The issuance of identification documents to current and 
retired law enforcement officers pursuant to Public Law 108-277.
* * * * *
    3. Section Sec.  20.33 is amended by revising paragraphs (a) 
introductory text and (a)(1) to read as follows:


Sec.  20.33  Dissemination of criminal history record information.

    (a) Criminal history record information contained in the III System 
and the FIRS may be made available:
    (1) To criminal justice agencies for criminal justice purposes;
* * * * *

    Dated: January 2, 2007.
Alberto R. Gonzales,
Attorney General.
 [FR Doc. E7-150 Filed 1-22-07; 8:45 am]
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