National Instant Criminal Background Check System, 5757-5760 [2013-01529]
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Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules
20 CFR Part 416
PART 416—SUPPLEMENTAL
SECURITY INCOME FOR THE AGED,
BLIND, AND DISABLED
Administrative practice and
procedure, Medicaid, Reporting and
recordkeeping requirements,
Supplemental Security Income (SSI).
Subpart F—Representative Payment
6. The authority citation for subpart F
of part 416 continues to read as follows:
■
Dated: January 18, 2013.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set out in the
preamble, we propose to amend 20 CFR
chapter III as follows:
Authority: Secs. 702(a)(5), 1613(a)(2) and
(d)(1) of the Social Security Act (42 U.S.C.
902(a)(5) and 1383(a)(2) and (d)(1)).
§ 416.645
[Amended]
7. Amend the example in § 416.645(a)
by removing the words ‘‘mentally
retarded children’’ and adding in their
place ‘‘children with intellectual
disability’’.
■
PART 404—FEDERAL OLD–AGE,
SURVIVORS, AND DISABILITY
INSURANCE
Subpart P—Determining Disability and
Blindness
1. The authority citation for subpart P
of part 404 continues to read as follows:
■
Authority: Secs. 202, 205(a)–(b) and (d)–
(h), 216(i), 221(a), (i), and (j), 222(c), 223,
225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a)–(b) and (d)–(h), 416(i),
421(a), (i), and (j), 422(c), 423, 425, and
902(a)(5)); sec. 211(b), Pub. L. 104–193, 110
Stat. 2105, 2189, sec 202, Pub. L. 108–203,
118 Stat. 509 (42 U.S.C. 902 note).
§ 404.1513
[Amended]
2. Amend § 404.1513(a)(2) by
removing the words ‘‘mental
retardation’’ and adding in their place
‘‘intellectual disability’’.
■
Appendix 1 to Subpart P of Part 404
[Amended]
Subpart I—Determining Disability and
Blindness
8. The authority citation for subpart I
of part 416 continues to read as follows:
■
Authority: Secs. 221(m), 702(a)(5), 1611,
1614, 1619, 1631(a), (c), (d)(1), and (p), and
1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h,
1383(a), (c), (d)(1), and (p), and 1383b); secs.
4(c) and 5, 6(c)–(e), 14(a), and 15, Pub. L. 98–
460, 98 Stat. 1794, 1801, 1802, and 1808 (42
U.S.C. 421 note, 423 note, and 1382h note).
§ 416.913
[Amended]
9. Amend § 416.913(a)(2) by removing
the words ‘‘mental retardation’’ and
adding in their place ‘‘intellectual
disability’’.
■
[FR Doc. 2013–01522 Filed 1–25–13; 8:45 am]
BILLING CODE 4191–02–P
3. Amend Appendix 1 to subpart P of
part 404 by:
■ a. Removing the words ‘‘mental
retardation’’ and adding in their place
‘‘intellectual disability’’ wherever they
occur;
■ b. Removing the words ‘‘Mental
retardation’’ and adding in their place
‘‘Intellectual disability’’ wherever they
occur; and
■ c. Removing the words ‘‘Mental
Retardation’’ and adding in their place
‘‘Intellectual Disability’’ wherever they
occur.
■
Subpart U—Representative Payment
4. The authority citation for subpart U
of part 404 continues to read as follows:
■
Authority: Secs. 205(a), (j), and (k), and
702(a)(5) of the Social Security Act (42 U.S.C.
405(a), (j), and (k), and 902(a)(5)).
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§ 404.2045
[Amended]
5. Amend the example in
§ 404.2045(a) by removing the words
‘‘mentally retarded children’’ and
adding in their place ‘‘children with
intellectual disability’’.
■
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DEPARTMENT OF JUSTICE
28 CFR Part 25
[Docket No. FBI 152: AG Order No. 3362–
2013]
RIN 1110–AA27
National Instant Criminal Background
Check System
Federal Bureau of Investigation
(FBI), Department of Justice.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Department of Justice
(the Department) proposes three
amendments to part 25 of title 28 of the
Code of Federal Regulations. These
proposed changes are intended to
promote public safety, to enhance the
efficiency of the National Instant
Criminal Background Check System
(NICS) operations, and to resolve
difficulties created by unforeseen
processing conflicts within the system.
The proposed amendments are for the
following purposes: to add tribal
criminal justice agencies to those
SUMMARY:
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entities authorized to receive
information in connection with the
issuance of a firearm-related permit or
license; to authorize access for criminal
justice agencies to the FBI-maintained
NICS Index to permit background
checks for the purpose of disposing of
firearms in the possession of those
agencies; and to permit NICS to retain
in a separate database its Audit Log
records relating to denied transactions
beyond 10 years, rather than transferring
them to a Federal Records Center for
storage.
Written comments must be
postmarked and electronic comments
must be submitted on or before March
29, 2013. Commenters should be aware
that the electronic Federal Docket
Management System will not accept
comments after Midnight Eastern Time
on the last day of the comment period.
ADDRESSES: You may submit comments,
identified by Docket No. FBI 152, by
either of the following methods:
• Federal Regulations Web site: You
may review this regulation on https://
www.regulations.gov and use the
comment form for this regulation to
submit your comments. You must
include Docket No. FBI 152 in the
subject box of your message.
• Mail: You may use the U.S. Postal
Service or other commercial delivery
services to submit written comments to
Section Chief Paul Wysopal, Federal
Bureau of Investigation, Criminal Justice
Information Services (CJIS) Division,
NICS Section, Module A3, 1000 Custer
Hollow Road, Clarksburg, West Virginia
26306 or by facsimile to (304) 625–0550.
To ensure proper handling, please
reference Docket No. FBI 152 on your
correspondence. You may view an
electronic version of this proposed rule
at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Patricia Traxler, NICS Strategy and
Systems Unit, Federal Bureau of
Investigation, Criminal Justice
Information Services (CJIS) Division,
NICS Section, Module A3, 1000 Custer
Hollow Road, Clarksburg, West Virginia
26306, telephone number (304) 625–
7372.
DATES:
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
II. Background
III. Regulatory Proposals
Proposal #1: Accessing Records in the
System (28 CFR 25.6(j)(1))
Proposal #2: Accessing Records in the
System (28 CFR 25.6(j)(3))
Proposal #3: Storage Location of NICS
Audit Log records relating to denied
transactions (28 CFR 25.9(b)(1)(i))
IV. Regulatory Certifications
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Federal Register / Vol. 78, No. 18 / Monday, January 28, 2013 / Proposed Rules
I. Posting of Public Comments
Please note that all comments on the
proposed rules are considered part of
the public record and are made
available for public inspection online at
https://www.regulations.gov. Such
information includes personal
identifying information (such as your
name, address, etc.) voluntarily
submitted by the commenter.
If you want to submit personally
identifying information (such as your
name, address, etc.) as part of your
comment but do not want it to be posted
online, you must include the phrase
‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You must also locate
all the personal identifying information
you do not want posted online in the
first paragraph of your comment and
identify what information you want
redacted.
If you want to submit confidential
business information as part of your
comment but do not want it to be posted
online, you must include the phrase
‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You must also
prominently identify confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, all or part of that comment
may not be posted on https://
www.regulations.gov.
Personal identifying information
identified and located as set forth above
will be placed in the agency’s public
docket file but not posted online.
Confidential business information
identified and located as set forth above
will not be placed in the agency’s public
docket file. If you wish to inspect the
agency’s public docket file in person by
appointment, please see the ‘‘For
Additional Information’’ paragraph.
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II. Background
The Brady Handgun Violence
Prevention Act (Brady Act) of 1993,
Public Law 103–159, mandated
background checks pursuant to 18
U.S.C. 922(t)(1) and (3) for any firearm
transfer from a federal firearms licensee
(FFL) to any unlicensed person.
Access to the NICS Index for purposes
unrelated to the Brady Act NICS
background checks is currently limited
by 28 CFR 25.6(j) to the following two
purposes:
(1) Providing information to Federal,
state, or local criminal justice agencies
in connection with the issuance of a
firearm-related or explosives-related
permit or license, including permits or
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licenses to possess, acquire, or transfer
a firearm, or to carry a concealed
firearm, or to import, manufacture, deal
in, or purchase explosives; or
(2) Responding to an inquiry from the
ATF (Bureau of Alcohol, Tobacco,
Firearms, and Explosives) in connection
with a civil or criminal law enforcement
activity relating to the Gun Control Act
(18 U.S.C. chapter 44) or the National
Firearms Act (26 U.S.C. chapter 53).
III. Regulatory Proposals
The Department is publishing three
proposed changes to the NICS
regulations for public comment. In
addition, the Department is amending
the definitional provision in section
25.2 referring to ATF to reflect the
transfer of that agency out of the
Department of the Treasury with a new
name pursuant to the Homeland
Security Act of 2002 (Pub. L. 107–296).
Proposal #1: Accessing Records in the
System (28 CFR 25.6(j)(1))
The first proposal would amend 28
CFR 25.6(j)(1) to add tribal criminal
justice agencies to those entities
authorized to receive information in
connection with the issuance of a
firearm-related permit or license. Under
the current regulation such information
may be provided only ‘‘to Federal, state,
or local criminal justice agencies.’’
Tribal criminal justice agencies are part
of the governing authority of ‘‘domestic
dependent nations’’ recognized by the
United States. The tribes have
concurrent criminal jurisdiction within
the borders of their respective
reservations and may issue firearmsrelated permits and licenses. Given that
state and local criminal justice agencies
can access the NICS Index in the course
of issuing a permit or license, tribal
criminal justice agencies should also be
permitted to conduct NICS background
checks to support their issuance of
firearms related permits and licenses.
Proposal #2: Accessing Records in the
System (28 CFR 25.6(j)(3))
The second proposal would amend 28
CFR 25.6(j) to authorize access to the
FBI-maintained NICS Index to permit
background checks for the purpose of
disposing of firearms in the possession
of a criminal justice agency.
Under the current regulation, criminal
justice agencies are not authorized to
access the NICS in order to conduct
background checks on individuals to
whom they intend to transfer firearms in
the agency’s possession that have been
recovered, confiscated, or seized. In
order to ensure that the person to whom
the firearm will be transferred is not
prohibited from possessing a firearm,
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the Department proposes to amend 28
CFR 25.6(j) to authorize criminal justice
agencies to access the NICS in order to
conduct background checks on
individuals to whom they intend to
transfer possession of firearms in the
agency’s possession. To this end, the
FBI sought and obtained the
concurrence of the CJIS Division
Advisory Policy Board (APB) (a body
created pursuant to the Federal
Advisory Committee Act, 5 U.S.C. App.
2) to this proposed amendment of 28
CFR 25.6(j).
If a state is currently acting as a Point
of Contact (POC) state as defined under
28 CFR 25.2, the checks for criminal
justice agencies within such a state, for
the purpose of returning stolen or
confiscated firearms in the possession of
criminal justice agencies, would also be
conducted through the POC state as the
firearm and firearm-related permit
checks are currently conducted. If the
FBI currently conducts firearm
background checks for the state, such
checks may be conducted through the
FBI.
Proposal #3. Storage Location of NICS
Audit Log Records Relating to Denied
Transactions (28 CFR 25.9(b)(1)(i))
The Department is also proposing to
amend 28 CFR 25.9(b)(1)(i) to authorize
the NICS to retain records relating to
denied transactions in a separate FBI
database beyond 10 years, rather than
transferring them to a Federal Records
Center for storage. When the NICS was
established, the Department planned for
NICS records to be stored by the
National Archives and Records
Administration (NARA) in a Federal
Records Center. In particular, the
original regulation governing NICS, at
28 CFR 25.9(b)(1)(i), provided that
records relating to denied transactions
in the Audit Log would be transferred
to a Federal Records Center after
reaching ten years of age. But current
technology allows NICS to readily retain
such records on site, and the FBI has
therefore determined that for NICS’ own
internal business operations, litigation
and prosecution purposes, and proper
administration of the system, NICS shall
retain denied transaction records on
site. As is currently the case, these
records will be maintained in
accordance with the applicable
document retention requirements of
NARA and the FBI. NICS business
practices have changed dramatically
since its inception and, with some
exceptions, its business records are no
longer retained in hard copy format or,
in special circumstances, are retained in
hard copy only for short periods of time.
As soon as practicable after receipt,
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NICS transfers its records to an
appropriate electronic format (e.g.,
conversion to either pdf or tif files).
These electronic formats permit the
NICS to retain all of its operations
records in readily accessible formats in
an electronic database for the full
retention period authorized by NARA
and in conformance with the retention
period of other CJIS Division records.
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IV. Regulatory Certifications
Executive Order 12866 and 13563—
Regulatory Review
This regulation has been drafted and
reviewed in accordance with Executive
Order 12866, ‘‘Regulatory Planning and
Review,’’ section 1(b), Principles of
Regulation, and in accordance with
Executive Order 13563, ‘‘Improving
Regulation and Regulatory Review,’’
section 1(b), General Principles of
Regulation.
The Department of Justice has
determined that this proposed rule is a
‘‘significant regulatory action’’ under
Executive Order 12866, section 3(f), and
accordingly, this rule has been reviewed
by the Office of Management and
Budget.
Further, both Executive Orders 12866
and 13563 direct agencies to assess all
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility.
The Department of Justice has
assessed the costs and benefits of this
rule and believes that the regulatory
approach selected maximizes net
benefits. The benefits of this proposed
rule are enhanced access to the NICS for
tribal criminal justice agencies that
issue firearms-related licenses or
permits. This access, while
discretionary, will assist the tribes in
evaluating any legal prohibitions or
public safety risks associated with
issuing a particular firearm permit or
license. Similarly, state, tribal, and local
criminal justice agencies in the
possession of firearms will benefit by
being able to ensure that persons to
whom they transfer recovered, seized, or
confiscated firearms are legally
permitted to receive and possess those
firearms. In both cases, such actions by
criminal justice agencies will help to
improve public safety by reducing the
risk that firearms will be possessed and
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used by persons who are prohibited by
law from doing so. Finally, the retention
of denied transaction information at
CJIS for the full period of time
authorized by law will enhance the
efficiency and operational capability of
the NICS.
The costs of this rule stem from
staffing and funding required by state
agencies or the NICS Section to conduct
additional background checks for the
disposition of firearms in the possession
of criminal justice agencies, or in
connection with the issuance of
firearms-related licenses or permits by
tribal criminal justice agencies. The full
impact of the increase in background
checks resulting from these changes
cannot be projected due to uncertainty
about the number of firearms that
currently are in, or regularly come into,
the possession of criminal justice
agencies, and the number of such
firearms that ultimately are appropriate
for transfer to an unlicensed recipient.
Similarly, the FBI cannot predict how
often tribal criminal justice agencies are
likely to access the NICS in connection
with firearms license or permit
decisions. Because these uses of the
NICS are discretionary with state and
tribal criminal justice agencies, the FBI
is unable to estimate the extent to which
the states will use these capabilities
and, therefore, cannot estimate either
the impact on the states or the NICS.
The FBI invites public comments on
both the costs and benefits of this
proposed rule.
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 criminal justice agencies that are
authorized users of the NICS with
access to the National Crime
Information Center (NCIC) will be
authorized to conduct Disposition of
Firearm background checks of the NICS
Index, such background checks are not
mandatory.
In drafting this proposed rule, the FBI
consulted the FBI’s CJIS Division APB,
which consists of representatives from
numerous federal, state, tribal, 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 FBI’s Integrated
Automated Fingerprint Identification
System, Law Enforcement Online, the
NCIC, the NICS, Uniform Crime
Reporting, and other systems and
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programs administered by the FBI’s CJIS
Division. In accordance with Executive
Order 13132, this rule does not have
sufficient federalism implications to
warrant the preparation of a Federalism
Assessment.
Regulatory Flexibility Act
The Department, 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).
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 action was
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 section 251 of 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 collection of information
contained in this notice of proposed
rulemaking will be submitted to the
Office of Management and Budget for
review in accordance with the
Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)).
If criminal justice agencies choose to
conduct background checks through
NICS for disposition of firearms in their
possession, then they are required to
complete a Firearms Disposition
Transaction Record Form. Criminal
justice agencies must also verify the
identity of a person applying for the
return of a firearm by examining an
identification document presented by
the prospective transferee. The Firearms
Disposition Transaction Record Form
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will include certain mandatory
descriptive information as well as
optional information about the
prospective transferee, such as the
person’s Social Security number and
alien registration number. The estimated
average burden associated with this
collection is 25 minutes per respondent
or record keeper, depending on
individual circumstances. The Firearms
Disposition Transaction Record Form
must be retained for at least five years.
If the transfer of a firearm is denied or
cancelled by the NICS, or for any reason
the transfer is not completed (delayed or
unresolved) after a NICS check is
initiated, the criminal justice agency
must retain the Firearms Disposition
Transaction Record Form for at least
five years. The estimated total annual
recordkeeping burden associated with
this requirement is unknown at this
time due to the uncertainty of the
number of firearms that are currently in
the possession of criminal justice
agencies. The FBI invites the public to
comment on this proposed collection of
information to help it
(i) Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
(ii) evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
(iii) enhance the quality, utility, and
clarity of the information to be
collected; and
(iv) minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Comments on the proposed
information collection should be sent to
the Office of Information and Regulatory
Affairs of OMB, Attention: Desk Officer
for the Department of Justice and
include the RIN for this proposed rule
and the title of the collection. OMB
encourages commenters to submit their
comments via email to
oira_submissions@omb.eop.gov, by fax
to (202) 395–7285, or by physical mail
to 725 17th Street NW., Room 10104,
Washington, DC 20038.
List of Subjects in 28 CFR Part 25
Administrative practice and
procedure, Computer technology,
Courts, Firearms, Law enforcement,
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Penalties, Privacy, Reporting and
recordkeeping requirements, Security
measures, Telecommunications.
Authority and Issuance
which time they will be transferred to
an appropriate electronic database
maintained by the FBI.
*
*
*
*
*
Accordingly, part 25 of title 28 of the
Code of Federal Regulations is proposed
to be amended as follows:
Dated: January 17, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2013–01529 Filed 1–25–13; 8:45 am]
PART 25—DEPARTMENT OF JUSTICE
INFORMATION SYSTEMS
BILLING CODE 4410–02–P
1. The authority citation for part 25
continues to read as follows:
DEPARTMENT OF DEFENSE
■
Authority: Pub. L. 103–159, 107 Stat. 1536,
49 U.S.C. 30501–30505; Pub. L. 101–410, 104
Stat. 890, as amended by Pub. L. 104–134,
110 Stat. 1321.
Department of the Army, Corps of
Engineers
2. In § 25.2, revise the definition of
‘‘ATF’’ to read as follows:
RIN 0710–AA66
§ 25.2
Civil Monetary Penalty Inflation
Adjustment
■
Definitions.
*
*
*
*
*
ATF means the Bureau of Alcohol,
Tobacco, Firearms, and Explosives.
*
*
*
*
*
■ 3. Revise § 25.6, paragraph (j) to read
as follows:
§ 25.6
Accessing records in the system.
*
*
*
*
*
(j) Access to the NICS Index for
purposes unrelated to NICS background
checks required by the Brady Act.
Access to the NICS Index for purposes
unrelated to NICS background checks
pursuant to 18 U.S.C. 922(t) shall be
limited to uses for the purposes of:
(1) Providing information to Federal,
state, tribal, or local criminal justice
agencies in connection with the
issuance of a firearm-related or
explosives-related permit or license,
including permits or licenses to possess,
acquire, or transfer a firearm, or to carry
a concealed firearm, or to import,
manufacture, deal in, or purchase
explosives;
(2) Responding to an inquiry from the
ATF in connection with a civil or
criminal law enforcement activity
relating to the Gun Control Act (18
U.S.C. Chapter 44) or the National
Firearms Act (26 U.S.C. Chapter 53); or,
(3) Disposing of firearms in the
possession of a Federal, state, tribal, or
local criminal justice agency.
■ 3. In § 25.9, revise paragraph (b)(1)(i)
to read as follows:
§ 25.9 Retention and destruction of
records in the system.
*
*
*
*
*
(b) * * *
(1) * * *
(i) NICS denied transaction records
obtained or created in the course of the
operation of the system will be retained
in the Audit Log for ten years, after
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33 CFR Part 326
AGENCY:
U.S. Army Corps of Engineers,
DoD.
ACTION:
Proposed rule.
The U.S. Army Corps of
Engineers (Corps) is proposing to amend
its regulations to adjust its Class I civil
penalties under the Clean Water Act and
the National Fishing Enhancement Act
to account for inflation. The adjustment
of civil penalties to account for inflation
is required by the Federal Civil
Penalties Inflation Adjustment Act of
1990, as amended. Since we have not
made any adjustments to our Class I
penalties to account for inflation since
2004, we are proposing to make a
second round of penalty adjustments to
account for inflation. Using the
adjustment criteria provided in the
statute, the Class I civil penalty under
the Clean Water Act would remain at
$11,000 per violation, but the maximum
civil penalty would increase to $32,500.
Under the National Fishing
Enhancement Act, the Class I civil
penalty would remain at $11,000 per
violation. Increasing the maximum
amount of the Class I civil penalty
under the Clean Water Act to account
for inflation will maintain the deterrent
effects of the penalty.
DATES: Comments must be received by
February 27, 2013.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson at 202–761–4922 or by
email at david.b.olson@usace.army.mil
or access the U.S. Army Corps of
Engineers Regulatory Home Page at
https://www.usace.army.mil/Missions/
CivilWorks/
RegulatoryProgramandPermits.aspx.
SUMMARY:
This
document concerns the adjustment of
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SUPPLEMENTARY INFORMATION:
E:\FR\FM\28JAP1.SGM
28JAP1
Agencies
[Federal Register Volume 78, Number 18 (Monday, January 28, 2013)]
[Proposed Rules]
[Pages 5757-5760]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01529]
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DEPARTMENT OF JUSTICE
28 CFR Part 25
[Docket No. FBI 152: AG Order No. 3362-2013]
RIN 1110-AA27
National Instant Criminal Background Check System
AGENCY: Federal Bureau of Investigation (FBI), Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice (the Department) proposes three
amendments to part 25 of title 28 of the Code of Federal Regulations.
These proposed changes are intended to promote public safety, to
enhance the efficiency of the National Instant Criminal Background
Check System (NICS) operations, and to resolve difficulties created by
unforeseen processing conflicts within the system. The proposed
amendments are for the following purposes: to add tribal criminal
justice agencies to those entities authorized to receive information in
connection with the issuance of a firearm-related permit or license; to
authorize access for criminal justice agencies to the FBI-maintained
NICS Index to permit background checks for the purpose of disposing of
firearms in the possession of those agencies; and to permit NICS to
retain in a separate database its Audit Log records relating to denied
transactions beyond 10 years, rather than transferring them to a
Federal Records Center for storage.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before March 29, 2013. Commenters should be aware
that the electronic Federal Docket Management System will not accept
comments after Midnight Eastern Time on the last day of the comment
period.
ADDRESSES: You may submit comments, identified by Docket No. FBI 152,
by either of the following methods:
Federal Regulations Web site: You may review this
regulation on https://www.regulations.gov and use the comment form for
this regulation to submit your comments. You must include Docket No.
FBI 152 in the subject box of your message.
Mail: You may use the U.S. Postal Service or other
commercial delivery services to submit written comments to Section
Chief Paul Wysopal, Federal Bureau of Investigation, Criminal Justice
Information Services (CJIS) Division, NICS Section, Module A3, 1000
Custer Hollow Road, Clarksburg, West Virginia 26306 or by facsimile to
(304) 625-0550. To ensure proper handling, please reference Docket No.
FBI 152 on your correspondence. You may view an electronic version of
this proposed rule at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Patricia Traxler, NICS Strategy and
Systems Unit, Federal Bureau of Investigation, Criminal Justice
Information Services (CJIS) Division, NICS Section, Module A3, 1000
Custer Hollow Road, Clarksburg, West Virginia 26306, telephone number
(304) 625-7372.
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
II. Background
III. Regulatory Proposals
Proposal 1: Accessing Records in the System (28 CFR
25.6(j)(1))
Proposal 2: Accessing Records in the System (28 CFR
25.6(j)(3))
Proposal 3: Storage Location of NICS Audit Log records
relating to denied transactions (28 CFR 25.9(b)(1)(i))
IV. Regulatory Certifications
[[Page 5758]]
I. Posting of Public Comments
Please note that all comments on the proposed rules are considered
part of the public record and are made available for public inspection
online at https://www.regulations.gov. Such information includes
personal identifying information (such as your name, address, etc.)
voluntarily submitted by the commenter.
If you want to submit personally identifying information (such as
your name, address, etc.) as part of your comment but do not want it to
be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You must also
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
https://www.regulations.gov.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the agency's public docket
file. If you wish to inspect the agency's public docket file in person
by appointment, please see the ``For Additional Information''
paragraph.
II. Background
The Brady Handgun Violence Prevention Act (Brady Act) of 1993,
Public Law 103-159, mandated background checks pursuant to 18 U.S.C.
922(t)(1) and (3) for any firearm transfer from a federal firearms
licensee (FFL) to any unlicensed person.
Access to the NICS Index for purposes unrelated to the Brady Act
NICS background checks is currently limited by 28 CFR 25.6(j) to the
following two purposes:
(1) Providing information to Federal, state, or local criminal
justice agencies in connection with the issuance of a firearm-related
or explosives-related permit or license, including permits or licenses
to possess, acquire, or transfer a firearm, or to carry a concealed
firearm, or to import, manufacture, deal in, or purchase explosives; or
(2) Responding to an inquiry from the ATF (Bureau of Alcohol,
Tobacco, Firearms, and Explosives) in connection with a civil or
criminal law enforcement activity relating to the Gun Control Act (18
U.S.C. chapter 44) or the National Firearms Act (26 U.S.C. chapter 53).
III. Regulatory Proposals
The Department is publishing three proposed changes to the NICS
regulations for public comment. In addition, the Department is amending
the definitional provision in section 25.2 referring to ATF to reflect
the transfer of that agency out of the Department of the Treasury with
a new name pursuant to the Homeland Security Act of 2002 (Pub. L. 107-
296).
Proposal 1: Accessing Records in the System (28 CFR
25.6(j)(1))
The first proposal would amend 28 CFR 25.6(j)(1) to add tribal
criminal justice agencies to those entities authorized to receive
information in connection with the issuance of a firearm-related permit
or license. Under the current regulation such information may be
provided only ``to Federal, state, or local criminal justice
agencies.'' Tribal criminal justice agencies are part of the governing
authority of ``domestic dependent nations'' recognized by the United
States. The tribes have concurrent criminal jurisdiction within the
borders of their respective reservations and may issue firearms-related
permits and licenses. Given that state and local criminal justice
agencies can access the NICS Index in the course of issuing a permit or
license, tribal criminal justice agencies should also be permitted to
conduct NICS background checks to support their issuance of firearms
related permits and licenses.
Proposal 2: Accessing Records in the System (28 CFR
25.6(j)(3))
The second proposal would amend 28 CFR 25.6(j) to authorize access
to the FBI-maintained NICS Index to permit background checks for the
purpose of disposing of firearms in the possession of a criminal
justice agency.
Under the current regulation, criminal justice agencies are not
authorized to access the NICS in order to conduct background checks on
individuals to whom they intend to transfer firearms in the agency's
possession that have been recovered, confiscated, or seized. In order
to ensure that the person to whom the firearm will be transferred is
not prohibited from possessing a firearm, the Department proposes to
amend 28 CFR 25.6(j) to authorize criminal justice agencies to access
the NICS in order to conduct background checks on individuals to whom
they intend to transfer possession of firearms in the agency's
possession. To this end, the FBI sought and obtained the concurrence of
the CJIS Division Advisory Policy Board (APB) (a body created pursuant
to the Federal Advisory Committee Act, 5 U.S.C. App. 2) to this
proposed amendment of 28 CFR 25.6(j).
If a state is currently acting as a Point of Contact (POC) state as
defined under 28 CFR 25.2, the checks for criminal justice agencies
within such a state, for the purpose of returning stolen or confiscated
firearms in the possession of criminal justice agencies, would also be
conducted through the POC state as the firearm and firearm-related
permit checks are currently conducted. If the FBI currently conducts
firearm background checks for the state, such checks may be conducted
through the FBI.
Proposal 3. Storage Location of NICS Audit Log Records
Relating to Denied Transactions (28 CFR 25.9(b)(1)(i))
The Department is also proposing to amend 28 CFR 25.9(b)(1)(i) to
authorize the NICS to retain records relating to denied transactions in
a separate FBI database beyond 10 years, rather than transferring them
to a Federal Records Center for storage. When the NICS was established,
the Department planned for NICS records to be stored by the National
Archives and Records Administration (NARA) in a Federal Records Center.
In particular, the original regulation governing NICS, at 28 CFR
25.9(b)(1)(i), provided that records relating to denied transactions in
the Audit Log would be transferred to a Federal Records Center after
reaching ten years of age. But current technology allows NICS to
readily retain such records on site, and the FBI has therefore
determined that for NICS' own internal business operations, litigation
and prosecution purposes, and proper administration of the system, NICS
shall retain denied transaction records on site. As is currently the
case, these records will be maintained in accordance with the
applicable document retention requirements of NARA and the FBI. NICS
business practices have changed dramatically since its inception and,
with some exceptions, its business records are no longer retained in
hard copy format or, in special circumstances, are retained in hard
copy only for short periods of time. As soon as practicable after
receipt,
[[Page 5759]]
NICS transfers its records to an appropriate electronic format (e.g.,
conversion to either pdf or tif files). These electronic formats permit
the NICS to retain all of its operations records in readily accessible
formats in an electronic database for the full retention period
authorized by NARA and in conformance with the retention period of
other CJIS Division records.
IV. Regulatory Certifications
Executive Order 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation, and in accordance with Executive Order
13563, ``Improving Regulation and Regulatory Review,'' section 1(b),
General Principles of Regulation.
The Department of Justice has determined that this proposed rule is
a ``significant regulatory action'' under Executive Order 12866,
section 3(f), and accordingly, this rule has been reviewed by the
Office of Management and Budget.
Further, both Executive Orders 12866 and 13563 direct agencies to
assess all costs and benefits of available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility.
The Department of Justice has assessed the costs and benefits of
this rule and believes that the regulatory approach selected maximizes
net benefits. The benefits of this proposed rule are enhanced access to
the NICS for tribal criminal justice agencies that issue firearms-
related licenses or permits. This access, while discretionary, will
assist the tribes in evaluating any legal prohibitions or public safety
risks associated with issuing a particular firearm permit or license.
Similarly, state, tribal, and local criminal justice agencies in the
possession of firearms will benefit by being able to ensure that
persons to whom they transfer recovered, seized, or confiscated
firearms are legally permitted to receive and possess those firearms.
In both cases, such actions by criminal justice agencies will help to
improve public safety by reducing the risk that firearms will be
possessed and used by persons who are prohibited by law from doing so.
Finally, the retention of denied transaction information at CJIS for
the full period of time authorized by law will enhance the efficiency
and operational capability of the NICS.
The costs of this rule stem from staffing and funding required by
state agencies or the NICS Section to conduct additional background
checks for the disposition of firearms in the possession of criminal
justice agencies, or in connection with the issuance of firearms-
related licenses or permits by tribal criminal justice agencies. The
full impact of the increase in background checks resulting from these
changes cannot be projected due to uncertainty about the number of
firearms that currently are in, or regularly come into, the possession
of criminal justice agencies, and the number of such firearms that
ultimately are appropriate for transfer to an unlicensed recipient.
Similarly, the FBI cannot predict how often tribal criminal justice
agencies are likely to access the NICS in connection with firearms
license or permit decisions. Because these uses of the NICS are
discretionary with state and tribal criminal justice agencies, the FBI
is unable to estimate the extent to which the states will use these
capabilities and, therefore, cannot estimate either the impact on the
states or the NICS. The FBI invites public comments on both the costs
and benefits of this proposed rule.
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 criminal
justice agencies that are authorized users of the NICS with access to
the National Crime Information Center (NCIC) will be authorized to
conduct Disposition of Firearm background checks of the NICS Index,
such background checks are not mandatory.
In drafting this proposed rule, the FBI consulted the FBI's CJIS
Division APB, which consists of representatives from numerous federal,
state, tribal, 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 FBI's Integrated
Automated Fingerprint Identification System, Law Enforcement Online,
the NCIC, the NICS, Uniform Crime Reporting, and other systems and
programs administered by the FBI's CJIS Division. In accordance with
Executive Order 13132, this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Department, 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).
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 action was 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 section 251 of
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 collection of information contained in this notice of proposed
rulemaking will be submitted to the Office of Management and Budget for
review in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)).
If criminal justice agencies choose to conduct background checks
through NICS for disposition of firearms in their possession, then they
are required to complete a Firearms Disposition Transaction Record
Form. Criminal justice agencies must also verify the identity of a
person applying for the return of a firearm by examining an
identification document presented by the prospective transferee. The
Firearms Disposition Transaction Record Form
[[Page 5760]]
will include certain mandatory descriptive information as well as
optional information about the prospective transferee, such as the
person's Social Security number and alien registration number. The
estimated average burden associated with this collection is 25 minutes
per respondent or record keeper, depending on individual circumstances.
The Firearms Disposition Transaction Record Form must be retained for
at least five years. If the transfer of a firearm is denied or
cancelled by the NICS, or for any reason the transfer is not completed
(delayed or unresolved) after a NICS check is initiated, the criminal
justice agency must retain the Firearms Disposition Transaction Record
Form for at least five years. The estimated total annual recordkeeping
burden associated with this requirement is unknown at this time due to
the uncertainty of the number of firearms that are currently in the
possession of criminal justice agencies. The FBI invites the public to
comment on this proposed collection of information to help it
(i) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(ii) evaluate the accuracy of the agency's estimate of the burden
of the proposed collection of information, including the validity of
the methodology and assumptions used;
(iii) enhance the quality, utility, and clarity of the information
to be collected; and
(iv) minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Comments on the proposed information collection should be sent to
the Office of Information and Regulatory Affairs of OMB, Attention:
Desk Officer for the Department of Justice and include the RIN for this
proposed rule and the title of the collection. OMB encourages
commenters to submit their comments via email to oira_submissions@omb.eop.gov, by fax to (202) 395-7285, or by physical mail
to 725 17th Street NW., Room 10104, Washington, DC 20038.
List of Subjects in 28 CFR Part 25
Administrative practice and procedure, Computer technology, Courts,
Firearms, Law enforcement, Penalties, Privacy, Reporting and
recordkeeping requirements, Security measures, Telecommunications.
Authority and Issuance
Accordingly, part 25 of title 28 of the Code of Federal Regulations
is proposed to be amended as follows:
PART 25--DEPARTMENT OF JUSTICE INFORMATION SYSTEMS
0
1. The authority citation for part 25 continues to read as follows:
Authority: Pub. L. 103-159, 107 Stat. 1536, 49 U.S.C. 30501-
30505; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-
134, 110 Stat. 1321.
0
2. In Sec. 25.2, revise the definition of ``ATF'' to read as follows:
Sec. 25.2 Definitions.
* * * * *
ATF means the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
* * * * *
0
3. Revise Sec. 25.6, paragraph (j) to read as follows:
Sec. 25.6 Accessing records in the system.
* * * * *
(j) Access to the NICS Index for purposes unrelated to NICS
background checks required by the Brady Act. Access to the NICS Index
for purposes unrelated to NICS background checks pursuant to 18 U.S.C.
922(t) shall be limited to uses for the purposes of:
(1) Providing information to Federal, state, tribal, or local
criminal justice agencies in connection with the issuance of a firearm-
related or explosives-related permit or license, including permits or
licenses to possess, acquire, or transfer a firearm, or to carry a
concealed firearm, or to import, manufacture, deal in, or purchase
explosives;
(2) Responding to an inquiry from the ATF in connection with a
civil or criminal law enforcement activity relating to the Gun Control
Act (18 U.S.C. Chapter 44) or the National Firearms Act (26 U.S.C.
Chapter 53); or,
(3) Disposing of firearms in the possession of a Federal, state,
tribal, or local criminal justice agency.
0
3. In Sec. 25.9, revise paragraph (b)(1)(i) to read as follows:
Sec. 25.9 Retention and destruction of records in the system.
* * * * *
(b) * * *
(1) * * *
(i) NICS denied transaction records obtained or created in the
course of the operation of the system will be retained in the Audit Log
for ten years, after which time they will be transferred to an
appropriate electronic database maintained by the FBI.
* * * * *
Dated: January 17, 2013.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2013-01529 Filed 1-25-13; 8:45 am]
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