[Federal Register: September 5, 2006 (Volume 71, Number 171)]
[Proposed Rules]
[Page 52302-52305]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se06-9]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 enexreg@leo.gov. 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
[[Page 52304]]
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.
[[Page 52305]]
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]
BILLING CODE 4410-02-P