[Federal Register: November 25, 2002 (Volume 67, Number 227)]
[Proposed Rules]
[Page 70567-70569]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25no02-24]
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NATIONAL CRIME PREVENTION AND PRIVACY COMPACT COUNCIL
28 CFR Part 902
[NCPPC 102]
Dispute Adjudication Procedures
AGENCY: National Crime Prevention and Privacy Compact Council.
ACTION: Proposed rule.
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SUMMARY: The Compact Council established pursuant to the National Crime
Prevention and Privacy Compact (Compact) is publishing a rule proposing
to establish Dispute Adjudication Procedures. These procedures support
Article XI of the Compact.
DATE: Submit comments on or before December 26, 2002.
ADDRESSES: Send all written comments concerning this proposed rule to
the Compact Council Office, 1000 Custer Hollow Road, Module C3,
Clarksburg, WV 26306; Attention: Cathy L. Morrison. Comments may also
be submitted by fax at (304)625-5388 or by electronic mail at
cmorriso@leo.gov. To ensure proper handling, please reference ``Dispute
Adjudication'' on your correspondence.
FOR FURTHER INFORMATION CONTACT: Mr. Wilbur Rehmann, Compact Council
Chairman, Montana Department of Justice, 303 North Roberts, 4th Floor,
Post Office Box 201406, Helena, Montana 59620-1406, telephone number
(406) 444-6194.
SUPPLEMENTARY INFORMATION: The National Crime Prevention and Privacy
Compact, 42 U.S.C. 14611-14616, establishes uniform standards and
processes for the interstate and federal-state exchange of criminal
history records for noncriminal justice purposes. The Compact was
signed into law on October 9, 1998, (Pub. L. 105-251) and became
effective on April 28, 1999, when ratified by the second state. 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
Interstate Identification Index (III) System for noncriminal justice
purposes, not to conflict with FBI administration of the III System for
criminal justice purposes.
This proposed rule establishes Dispute Adjudication Procedures
authorized under Article XI of the Compact. Article XI provides
generally for the adjudication of disputes relating to the Compact and
this rule provides a structured framework for the Council to
efficiently and effectively implement the adjudication process.
Section 902.2(a) of the proposed rule provides that cognizable
disputes may only be raised by a person or organization directly
aggrieved by: (1) The Council's interpretation of the Compact; (2) any
rule or standard established by the Council pursuant to the Compact; or
(3) failure of a Compact Party to comply with a provision of the
Compact or with any rule or standard established by the Council.
Limiting disputes to those who are ``directly aggrieved'' by Council or
Compact Party actions ensures that Council resources are devoted to
reviewing substantive matters relating to direct Council or Compact
Party actions and that standing is provided only to a person or
organization substantially impacted by relevant actions of the Compact
Council or a Compact Party.
Section 902.2(d) of the proposed rule provides that a dispute may
not be based solely upon a disagreement with the merits of a rule or
standard established by the Council. If a rule has been established by
the Council, the Council has provided an opportunity for comments
through the publishing of a proposed rule, has debated the merits and
wisdom of the rule at meetings open to the public, and has determined
that the rule should be enacted. Prior public notice is given in the
Federal Register of each Council meeting, including the matters to be
addressed at the meeting. Therefore, the public will have prior notice
of the proposed rules to be discussed by the Council and will have an
opportunity to comment on the merits of the proposed rules.
Accordingly, prohibiting disputes based on the merits or wisdom of a
Council rule ensures that Council time and resources are not spent
adjudicating disputes in matters in which the Council has already
invested significant time and effort and on which interested parties
have had ample opportunity to comment. However, while a formal dispute
on the merits of a rule may not be raised under these procedures,
nothing prevents further discussion of the merits of the rule or
efforts seeking its revocation at regularly scheduled Council meetings.
Section 902.3 of the proposed rule provides that disputes are
preliminarily referred to the Council's Dispute Resolution Committee
for a recommendation to the Council Chairman regarding whether a
hearing should be held on the matter. Creating and utilizing a Dispute
Resolution Committee enhances efficiency by having a small group assess
pertinent information and make recommendations to the Chairman and full
Council.
The hearing procedures provided for in the proposed rule ensure
that disputants, as well as Compact Parties charged with violating
Council rules, are given a full and fair opportunity to present matters
to the Council both orally and in writing. Due to the Council's
historically busy agenda and the costs involved in assembling the 15-
member Council and its administrative support, the Council Chairman may
limit the number of and the length of time allowed to presenters or
witnesses. The Chairman also maintains the discretion to limit input,
both orally and in writing, of other persons or organizations who may
wish to participate in an adjudication proceeding.
Given the affected interests of the Compact Council, the proposed
rule requires that appropriate notice of an appeal under Article XI be
communicated to the Council Chairman by the appealing party to ensure
that timely notice is provided to Council members and other appropriate
individuals.
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 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), 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.
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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.
List of Subjects in 28 CFR Part 902
Administrative practice and procedure, National Crime Prevention
and Privacy Compact Council.
Accordingly, chapter IX of title 28 Code of Federal Regulations is
amended by adding part 902 to read as follows:
PART 902--DISPUTE ADJUDICATION PROCEDURES
Sec.
902.1 Purpose and authority.
902.2 Raising disputes.
902.3 Referral to Dispute Resolution Committee.
902.4 Action by Council Chairman.
902.5 Hearing procedures.
902.6 Appeal to the Attorney General.
902.7 Court action.
Authority: 42 U.S.C. 14616.
Sec. 902.1 Purpose and authority.
The purpose of this part 902 is to establish protocols and
procedures for the adjudication of disputes by the Compact Council. 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.
Sec. 902.2 Raising disputes.
(a) Cognizable disputes must be raised by a Party State, the FBI,
or a person, organization, or government entity directly aggrieved
within the meaning of paragraph (b) of this section and may be based
upon:
(1) A claim that the Council has misinterpreted the Compact or one
of the Council's rules or standards established under Article VI of the
Compact;
(2) A claim that the Council has exceeded its authority under the
Compact;
(3) A claim that in establishing a rule or standard or in taking
other action, the Council has failed to comply with its bylaws or other
applicable procedures established by the Council; or the rule, standard
or action is not otherwise in accordance with applicable law; or
(4) A claim by a Compact Party that another Compact Party has
failed to comply with a provision of the Compact or with any rule or
standard established by the Council.
(b) A Party State, the FBI, or a person, organization, or
government entity directly aggrieved by the Council's interpretation of
the Compact or any rule or standard established by the Council pursuant
to the Compact, or in connection with a matter covered under Sec.
902.2(a)(4), may request a hearing on a dispute by contacting the
Compact Council Chairman in writing at the Compact Council Office,
Module C3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306.
(c) The Chairman may ask the requester for more particulars,
supporting documentation or materials as the circumstances warrant.
(d) A dispute may not be based solely upon a disagreement with the
merits (substantive wisdom or advisability) of a rule or standard
validly established by the Council within the scope of its authority
under the Compact. However, nothing in this rule prohibits further
discussion of the merits of a rule or standard at any regularly
scheduled Council meeting.
Sec. 902.3 Referral to Dispute Resolution Committee.
(a) The five person Dispute Resolution Committee membership shall
be determined according to Compact Article VI (g). Should a dispute
arise with an apparent conflict of interest between the disputant and a
Committee member, the Committee member shall recuse himself/herself and
the Compact Council Chairman shall determine an appropriate substitute
for that particular dispute.
(b) The Compact Council Chairman shall refer the dispute, together
with all supporting documents and materials, to the Council's Dispute
Resolution Committee.
(c) In making a decision as to whether to recommend a hearing, the
Dispute Resolution Committee shall lean toward recommending hearings to
all disputants who raise issues that are not clearly frivolous or
without merit.
(d) The Dispute Resolution Committee shall consider the matter and:
(1) Refer it to the Council for a hearing;
(2) Recommend that the Council deny a hearing if the Committee
concludes that the matter does not constitute a cognizable dispute
under Sec. 902.2(a); or
(3) Request more information from the person or organization
raising the dispute or from other persons or organizations.
Sec. 902.4 Action by Council Chairman.
(a) The Chairman shall communicate the decision of the Dispute
Resolution Committee to the person or organization that raised the
dispute.
(b) If a hearing is not granted, the Federal Bureau of
Investigation or a Party State may appeal this decision to the Attorney
General pursuant to Section (c) of Article XI of the Compact (see Sec.
902.6).
(c) If a hearing is granted, the Chairman shall:
(1) Include the dispute on the agenda of a scheduled meeting of the
Council or, at the Chairman's discretion, schedule a special Council
meeting;
(2) Notify the person or organization raising the dispute as to the
date of the hearing and the rights of disputants under Sec. 902.5
(Hearing Procedures); and
(3) Include the matter of the dispute in the prior public notice of
the Council meeting required by Article VI (d)(1) of the Compact.
Sec. 902.5 Hearing procedures.
(a) The hearing shall be open to the public pursuant to Article VI
(d)(1) of the Compact.
(b) The Council Chairman or his/her designee shall preside over the
hearing and may limit the number of, and the length of time allowed to,
presenters or witnesses.
(c) The person or organization raising the dispute or a Compact
Party charged under the provisions of Sec. 902.2(a)(4) shall be
entitled to:
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(1) File additional written materials with the Council at least ten
days prior to the hearing;
(2) Appear at the hearing, in person and/or by counsel;
(3) Make an oral presentation; and
(4) Call witnesses.
(d) Subject to the discretion of the Chairman, other persons and
organizations may be permitted to appear and make oral presentations at
the hearing or provide written materials to the Council concerning the
dispute.
(e) All Council members, including a member or members who raised
the dispute that is the subject of the hearing, shall be entitled to
participate fully in the hearing and vote on the final Council decision
concerning the dispute.
(f) The Council shall, if necessary, continue the hearing to a
subsequent Council meeting.
(g) Summary minutes of the hearing shall be made and transcribed
and shall be available for inspection by any person at the Council
office within the Federal Bureau of Investigation.
(h) The proceedings of the hearing shall be recorded and shall be
transcribed, as necessary. A record of the proceedings will be made and
provided to the Attorney General if an appeal is filed pursuant to
section (c) of Article XI of the Compact.
(i) The Council's decision on the dispute shall be based upon a
majority vote of Council members or their proxies present and voting at
the hearing. The Council's decision on the dispute shall be published
in the Federal Register as provided by section (a)(2) of Article XI and
section (e) of Article VI.
(j) The Council Chairman shall advise Council members and hearing
participants of the right of appeal provided by section (c) of Article
XI of the Compact.
Sec. 902.6 Appeal to the Attorney General.
(a) The Federal Bureau of Investigation or a Compact Party State
may appeal the decision of the Council to the U.S. Attorney General
pursuant to section (c) of Article XI of the Compact.
(b) Appeals shall be filed and conducted pursuant to rules and
procedures that may be established by the Attorney General.
(c) Appropriate notice of an appeal shall be communicated to the
Council Chairman by the appealing party.
Sec. 902.7 Court action.
Pursuant to section (c) of Article XI of the Compact, a decision by
the Attorney General on an appeal under Sec. 902.6 may be appealed by
filing a suit seeking to have the decision reversed in the appropriate
district court of the United States.
Dated: November 1, 2002.
Wilbur Rehmann,
Compact Council Chairman.
[FR Doc. 02-29709 Filed 11-22-02; 8:45 am]
BILLING CODE 4410-02-P