[Federal Register: November 26, 2003 (Volume 68, Number 228)]
[Rules and Regulations]
[Page 66340-66342]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no03-4]
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NATIONAL CRIME PREVENTION AND PRIVACY COMPACT COUNCIL
28 CFR Part 902
[NCPPC 106]
Dispute Adjudication Procedures
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 this rule to
establish Dispute Adjudication Procedures. These procedures support
Article XI of the Compact.
EFFECTIVE DATE: This final rule is effective on December 26, 2003.
FOR FURTHER INFORMATION CONTACT: Lt. Col. Jeffrey D. Harmon, Compact
Council Chairman, Maine State Police, 36 Hospital Street, Augusta,
Maine 04333-0042, telephone number (207) 624-7060.
SUPPLEMENTARY INFORMATION: This document finalizes the Compact Council
rule proposed in the Federal Register on November 25, 2002, (67 FR
70567). The Compact Council accepted comments on the proposed rule from
interested parties until December 26, 2002, and is finalizing the rule
with certain changes in response to the comments.
Significant Comments or Changes
Two comments from the same party questioned the Council's reference
in the Supplementary Information that ``the Compact eliminates barriers
to the sharing of criminal history record information among Compact
parties for noncriminal justice purposes'', asking if the Compact
encompassed all noncriminal justice purposes or only those criminal
history record information requests supported by fingerprint
submissions. The Council's response was that the Compact encompasses
all noncriminal justice purposes. The second comment asked for
verification of the quoted statement in the Supplementary Information
that ``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 the FBI administration of the
III System for criminal justice purposes.'' The Council's response was
that this is a direct quote from the Compact, 28 CFR 14616, Article VI.
Nine comments referencing particular subsections of the proposed
rule were received from a second party. The first comment referenced
the use of and subsequent referral to the term ``directly aggrieved''
(Sec. 902.2, paragraphs (a) and (b)). To eliminate what was
interpreted as a ``circular'' reference, the Council is revising
paragraph (a) to state,
``Cognizable disputes may be based upon:
* * * * *'',
while paragraph (b) is left unchanged.
A second comment asked the following questions about section
902.3(a): What if the dispute also poses a conflict of interest for the
Chair? Could a deputy name the substitute member? The Council's
original intent was that any Committee member with a conflict of
interest would excuse him/herself from the hearing on that topic.
Clarifying language is being added to 902.3 paragraph (a):
In the case when the Compact Council Chair is the committee
member with the conflict, the Chair shall take appropriate steps to
appoint a replacement that resolves the conflict.
Comment 3, on section 902.3(c), labeled the use of the phrase
``lean toward'' as vague. The Council is modifying paragraph (c) to
indicate that the dispute resolution committee shall recommend hearings
to all disputants who raise issues that are not clearly frivolous or
without merit, and that the committee will give written explanation
[[Page 66341]]
when a hearing is not recommended. Section 902.3(c) is being amended
accordingly.
Another comment expressed a concern that subsection 902.4(b) seemed
to allow only the Federal Bureau of Investigation or a Party State to
appeal to the U.S. Attorney General when a hearing was denied. The
Council modified this subsection to allow any disputant to appeal to
the Attorney General and provide that the Attorney General has the
discretion to consider the appeal and grant a hearing.
Comment 5 referred to 902.5, Hearing Procedures, asking if
disputants would be allowed to cross-examine witnesses and introduce
evidence at a hearing, if there was any way to compel the attendance of
witnesses or production of documents, and if there are any restrictions
on a disputant acting as his/her own attorney? The Council agreed to
modify subsection (c)(4) to state, ``Call and cross-examine
witnesses.'' Council discussion acknowledged there is no way to compel
the attendance of witnesses or production of documents or to restrict a
disputant acting as his/her own attorney.
Comment 6 referenced 902.5(e), asking if the intent of the Council
was to allow a Council member who raised a dispute to participate fully
in the hearing and vote on the final Council decision, as this could be
construed as a conflict of interest. Based on input from the Department
of Justice, the Council decided to leave the original language intact.
When Congress passed the National Crime Prevention and Privacy
Compact Act of 1998, it set forth specific language regarding the
composition of the Compact Council, with a particular number of members
representing the states, federal agencies, and criminal/noncriminal
justice constituencies, each seat representing a vote on issues--
including the adjudication of disputes. Requiring a member to recuse
himself from a dispute hearing might result in removing a particular
constituency's vote, contravening the intent of Congress.
Another comment questioned the language in section 902.5(h), asking
if recording and transcription of a hearing might not always be
necessary. The Council agreed to modify the language as follows:
The proceedings of the hearing will be recorded and, as
necessary, transcribed. A transcript of the hearing shall be made
and forwarded to the Attorney General if an appeal is filed pursuant
to section (c) of Article XI of the Compact.
The next comment asked what defined a majority vote of Council
members. According to Compact Article VI and the Council's Bylaws,
section 8.8, a quorum of Council members or any Committee of the
Council is defined as a simple majority. No vote shall be taken without
a quorum. The Council is revising 902.5(i) to add the references to
Article VI and the Bylaws.
A final comment questioned if the rule was modeled after any
existing precedents. The Council responded that the rule was structured
according to current administrative procedures, but was not modeled
after an existing precedent.
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 U.S. 42 .C.16, 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 in 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.
List of Subjects in 28 CFR Part 902
Administrative Practice and Procedure.
0
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 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 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;
[[Page 66342]]
(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) Only 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 Section
902.2(a)(4), may raise a cognizable dispute. Such disputants 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. In the case when the Compact Council
Chairman is the committee member with the conflict, the Chairman shall
take appropriate steps to appoint a replacement that resolves the
conflict.
(b) The Compact Council Chairman shall refer the dispute, together
with all supporting documents and materials, to the Council's Dispute
Resolution Committee.
(c) The Dispute Resolution Committee shall recommend hearings to
all disputants who raise issues that are not clearly frivolous or
without merit. If the Committee recommends denying a hearing, it must
articulate its reason or reasons for doing so in writing.
(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 disputant may appeal this
decision to the Attorney General. If the Attorney General believes the
disputant has raised an issue that is not frivolous or without merit,
the Attorney General may order the Compact Council Chairman to grant a
hearing.
(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:
(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 and cross-examine 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, as
necessary, transcribed. A transcript of the hearing will be made and
forwarded 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 (as per
Compact Article VI and Council Bylaws) 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 5, 2003.
Jeffrey D. Harmon,
Compact Council Chairman.
[FR Doc. 03-29568 Filed 11-25-03; 8:45 am]
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