Rule 11C-6.004, F.A.C. changes are requested to be consistent with statutory language and to update forms promulgated in rule for Volunteer and Employee Background Checks (VECHS) qualified entities requesting criminal history record checks under the ...

 

DEPARTMENT OF LAW ENFORCEMENT

Division of Criminal Justice Information Systems

RULE NOS.:RULE TITLES:

11C-6.004Procedures for Requesting Criminal History Records

11C-6.009Sale and Delivery of Firearms

11C-6.010Retention of Applicant Fingerprints

PURPOSE AND EFFECT: Rule 11C-6.004, F.A.C. changes are requested to be consistent with statutory language and to update forms promulgated in rule for Volunteer and Employee Background Checks (VECHS) qualified entities requesting criminal history record checks under the National Child Protection Act.

Rule 11C-6.009, F.A.C. is amended to be consistent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rules for licensing firearms dealers. Changes also include removing reference to form number FDLE 40-019 since the form is not used and no longer exists and extending appeal timeframes from 21 calendar days to 60 calendar days as a direct benefit to the public, and to update references to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form F-4473.

Rule 11C-6.010, F.A.C. is amended to move existing rule language in subsection 11C-6.010(8), F.A.C. to subsection 11C-6.010(2), F.A.C.. Replacing references to Automated Fingerprint Identification System (AFIS) to Biometric Identification System (BIS). Adding reference to the Care Provider Clearinghouse retained applicants in subsection 11C-6.010(7), F.A.C.. Correcting statutory reference in subsection 11C-6.010(1), F.A.C..

SUMMARY: Rule 11C-6.004, F.A.C. is amended make grammatical changes to be consistent with statute and to reflect that fingerprints must be submitted electronically in accordance with the Federal Bureau of Investigation requirements. The amendments also reflect changes to the Volunteer and Employee Background Checks (VECHS) Qualified Entity Application and the VECHS Dissemination Log.

Rule 11C-6.009, F.A.C. is amended to be consistent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rules for licensing firearms dealers. Changes also include removing reference to form number FDLE 40-019 since the form is not used and no longer exists and extending appeal time frames from 21 calendar days to 60 calendar days as a direct benefit to the public and to update references to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form F-4473.

Rule 11C-6.010, F.A.C. is amended to move existing rule language in subsection 11C-6.010(8), F.A.C. to subsection 11C-6.010(2), F.A.C.. Replacing references to Automated Fingerprint Identification System (AFIS) to Biometric Identification System (BIS). Adding reference to the Care Provider Clearinghouse retained applicants in subsection 11C-6.010(7), F.A.C. Correcting statutory reference in subsection 11C-6.010(1), F.A.C.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The proposed rule is not expected to exceed any of the criteria set forth in Section 120.541(2)(a), F.S., and thus, a legislative ratification is not required under Section 120.541(3), F.S. This determination is based upon the nature of the subject matter of the proposed amendment.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 943.03(4), 943.053(3), 943.0542, 943.056, 790.065, 943.03(4), 943.05(2)(g-h), 1012.32(3), 1012.465, 1012.56, FS.

LAW IMPLEMENTED: 943.0542, 943.056, 790.065 FS., 432.12, 496.4101(3)(c), 550.105(10)(c), 551.107(7)(c), 560.141(1)(c)3, 559.555(2)3, 744.3135(4)(b), 943.13(5), 985.644(3)(c), 1002.395(6)(b)3, 1002.421(3)(a), 1012.32(3), 1012.465, 1012.467, 1012.56, FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: Wednesday, June 29, 2016, 10:00 a.m.

PLACE: Florida Department of Law Enforcement, Criminal Justice Information Services, 2331 Phillips Road, Tallahassee, Florida 32308

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Timothy Giesecke at [phone], or [e-mail], or write to Florida Department of Law Enforcement, Criminal Justice Information Services, 2331 Phillips Road, Tallahassee, Florida 32308. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Bureau Chief Timothy Giesecke at [phone], or [e-mail], or write to Florida Department of Law Enforcement, Criminal Justice Information Services, 2331 Phillips Road, Tallahassee, Florida 32308

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

11C-6.004 Procedures for Requesting Criminal History Records.

(1) through (2) No change.

(3) Fees.

(a) There shall be no charge for conducting record checks under paragraphs (2)(a) through (c).

(b) As provided in Section 943.053(3)(b), F.S., a processing fee of $24 shall be charged for each subject inquired upon under paragraphs (2)(d) through (f), except that a the fee of $8 shall be charged for each subject inquired upon for the guardian ad litem program, and vendors of the Department of Children and Families Family Services, the Department of Juvenile Justice, and the Department of Elderly Affairs; shall be $8 for each name submitted; the fee for a state criminal history provided for application processing as required by law to be performed a fee of $15 shall be charged for each subject inquired upon pursuant to a state criminal history record check required by law to be performed by the Department of Agriculture and Consumer Services; shall be $15 for each name submitted; and the a fee for requests under Section 943.0542, F.S., which implements the of $18 shall be charged for each volunteer subject inquired upon under the National Child Protection Act of 1993, shall be $18 for each volunteer name submitted. The state offices of the Public Defender shall not be assesed a fee for as amended; and no fee shall be charged for Florida criminal history information or wanted person information requested by the state offices of the Public Defender.

(c) through (d) No change.

(4) Entities applying to the Florida Department of Law Enforcement to be qualified to receive criminal history records under the National Child Protection Act of 1993, as amended, must first complete and submit the following documents to the Florida Department of Law Enforcement, in accordance with the instructions provided: VECHS Qualified Entity Application – Volunteer & Employee Criminal History System (NCPA 1; Rev. January 1, 2001 May 2015). Entities that are qualified through the Florida Department of Law Enforcement to receive criminal history records under the National Child Protection Act must submit complete an electronic fingerprints electronically submission for each person and submit it to the Florida Department of Law Enforcement for each request for a criminal history record check. Qualified entities that release to another qualified entity any criminal history record information received pursuant to the National Child Protection Act must complete and maintain the following document, in accordance with the instructions provided: VECHS Dissemination Log – Volunteer & Employee Criminal History System (NCPA 4, Rev. January 1, 2001 May 2015). These forms are incorporated by reference.

Rulemaking Authority 943.03(4), 943.053(3), 943.0542, 943.056 FS. Law Implemented 943.053(3), 943.0542, 943.056 FS. History–New 12-30-76, Amended 11-7-83, Formerly 11C-6.04, Amended 9-1-88, 4-1-93, 7-7-99, 8-22-00, 7-29-01, 12-3-03, 6-9-08, 6-3-10, 5-21-12, 3-13-13, 5-29-14, _____________.

 

11C-6.009 Sale and Delivery of Firearms.

(1) For a federally licensed firearm dealer (including licensed firearm importers, licensed firearm manufacturers and licensed firearm dealers pursuant to Title 27, C.F.R., Part 178) to complete a firearm transaction to another person, other than a licensed importer, licensed manufacturer, licensed dealer or licensed collector, a United States Treasury Department, Bureau of Alcohol, Tobacco and Firearms (ATF) form ATF F-4473 [5300.9] Part 1 (04/12 10/01) (Firearms Transaction Record) incorporated here by reference, must be completed. These forms are available from the ATF Distribution Center, 7943 Angus Court, Springfield, Virginia 22153. The completion of the ATF F-4473 [5300.9] Part 1 (04/12 10/01) form must comply with Title 27, C.F.R. Part 178, Section 178.124, and with Section 790.065, F.S.

(2) Section A of the ATF F-4473 [5300.9] Part 1 (04/12 10/01) form must be completed by the potential buyer or transferee. The dealer must ensure that items 9-13 are completed by the buyer prior to the dealer contacting the Florida Department of Law Enforcement (FDLE). In addition to the above requirements, the social security number of the potential buyer or transferee may be recorded in block number 87 of ATF F-4473 [5300.9] Part 1 (04/12 10/01) form. along with the additional types and dates of identification for any person who is not a United States citizen (i.e., utility bills or lease agreements). The dealer is required to advise the potential buyer that the disclosure of his or her social security number is voluntary, of the authority for the disclosure, and of the use to be made of the number.

(3) All federally licensed importers, licensed manufacturers, and licensed firearm dealers in Florida who intend to sell a firearm to another non-licensed person must provide dealership information to the FDLE and obtain an identification number and a toll-free telephone number. The identification number and toll-free telephone number must be used only by or for the dealer and must be used to obtain an approval number before a firearm can be transferred. The Florida Firearm Dealer Information Form (form number FDLE 40-019, February 1, 1991), incorporated here by reference, may be obtained from:

Florida Department of Law Enforcement

Firearm Purchase Program

Post Office Box 1489

Tallahassee, Florida 32302-1489

Telephone Number: [phone]

(4) No change.

(5) Using the provided toll-free telephone number or by other electronic means in addition to the telephone, the dealer must contact FDLE immediately prior to each transaction involving the transfer of one or more firearms to obtain an approval number to complete the firearm transaction. The dealer will provide the dealer’s identification number and all identification data of the potential buyer/transferee as contained on ATF form F-4473 [5300.9] Part 1 (04/12 10/01) to FDLE.

(6) FDLE will provide an approval, non-approval, conditional approval, conditional non-approval number or pending non-approval to the dealer based on the criminal history record of the potential buyer or transferee. Based on the status of the criminal history record, FDLE will provide an approval or non-approval number to the dealer during the call when possible or by return call or within the specified time frame as contained in Section 790.065, F.S. Unless compliance with the requirements of this section is excused as provided in Section 790.065(10), F.S., if the dealer has not received an approval or non-approval number, conditional or otherwise, from FDLE within the time frame specified, the dealer must contact FDLE to inquire about the status of the request for approval, prior to completing the transaction. If a conditional non-approval number is issued, FDLE will attempt to determine the status of the criminal history record so as to respond to the dealer within the time frame contained in Section 790.065, F.S., with an approval or non-approval number. At the termination of the time period specified in Section 790.065(2)(c)5., F.S., if such a determination is not possible, the conditional non-approval number will become a conditional approval number. The approval number is valid for a single transaction and for a period not to exceed thirty calendar days after receipt of the number. Multiple firearms may be transferred in this transaction.

(7) The dealer will record the approval, non-approval or conditional approval or conditional non-approval number, or pending non-approval decision and number provided by FDLE in box 19b 21b and in the box in the top right corner labeled, Transferor’s Transaction Serial Number of ATF form F-4473 (5300.9) Part 1 (04/12 10/01). When the transaction is approved, the dealer should complete Section B of the ATF form F-4473.

(8) To any potential buyer or transferee intending to formally appeal his a non-approval decision, the dealer will provide a Firearm Purchase Non-Approval Appeal Form (form number FDLE 40-020, January 2002), incorporated herein by reference, and on file with Secretary of State, that must be completed by the dealer and the potential buyer or transferee. The potential buyer or transferee must take the form to a law enforcement agency, be fingerprinted there, and return the Non-approval Appeal form and fingerprints to FDLE within 2160 calendar days. Using the procedures as described in Chapter 11C-8, F.A.C., FDLE will process the formal appeal request. A supply of the appeal forms will be provided by FDLE to dealers upon request. Such requests should be directed to:

Florida Department of Law Enforcement

Firearm Purchase Program

Post Office Box 1489

Tallahassee, Florida 32302-1489

Telephone Number: [phone]

As an alternative to this procedure, the potential buyer or transferee may at any time appeal his non-approval directly to the FBI, as authorized by Title 28, C.F.R., Section 25.10.

(9) through (12) No change.

(13) All records where the transfer was approved must be maintained by dealers for 20 years as required by Title 27, C.F.R., Part 178. All records where the transfer was non-approved must be kept by dealers in a secure area and kept confidential for five (5) years. This would include the dealers’s copy of the ATF Form F-4473 [5300.9] Part 1 (04/12 10/01) where the transfer of a firearm was non-approved. Records must be made available to federal, state, county and municipal law enforcement agencies in connection with their official duties upon request during business hours or other reasonable times if the dealer has no regular business hours.

(14) through (17) No change..

(18) Dealers are required to notify FDLE of any changes in their address, telephone number, or federal license status. Failure to do so will result in the dealer’s identification number being suspended. When the correct address and telephone number can be verified, and all outstanding invoices satisfied, service can be reinstated. Dealers with an expired federal license will not be able to process transactions. Dealers must have a valid active telephone number on file with FDLE that is answered during regular business hours.

(19) FDLE will provide a licensed dealer with a new identification number when the dealer believes that unauthorized use has been or may be made of that dealer’s current identification number. It is the responsibility of the dealer to maintain the confidentiality of the assigned identification number, username, and password and not release the toll-free telephone number.

(20) No change.

Rulemaking Authority 790.065, 943.03(4) FS. Law Implemented 790.065 FS., Title 18, U.S.C., Chapter 44, and Title 27, C.F.R., Part 178. History–New 6-2-91, Amended 7-7-99, 8-22-00, 12-18-00, 11-5-02, _____________.

 

11C-6.010 Retention of Applicant Fingerprints.

(1) Upon official written request from an agency executive director, secretary, or designee, or from a qualified entity under Section 943.0542 943.052, F.S., subject to the conditions specified in Section 943.05(2)(g) and (h), F.S., or as otherwise required by law, the Florida Department of Law Enforcement shall enter and retain in the Automated Fingerprint Identification System (AFIS) Biometric Identification System (BIS) the applicant fingerprints submitted for state and national criminal history checks by such agencies or entities to participate in the Applicant Fingerprint Retention and Notification Program (AFRNP) for current and prospective employees, contractors, volunteers, and persons seeking to be licensed or certified.

(2) Such applicant fingerprints shall be submitted in a digitized an electronic format for entry into AFIS BIS, and shall be retained. in the AFRNP database, in such a manner as to be distinct from the criminal history record database. Without regard to whether an applicant fingerprint entry is retained in the BIS database, data from an applicant fingerprint entry which would improve the quality or clarity of an arrest fingerprint entry will be merged with the arrest fingerprints, and the applicants fingerprints retained. An applicant fingerprint entry which is found to match a latent fingerprint taken from a crime scene will be retained as part of the criminal history database unless an arrest fingerprint offers a match that is at least as demonstrable.

(3) No change.

(4) When the subject of retained fingerprints submitted for retention under this program is identified with fingerprints from an incoming Florida arrest, as confirmed by fingerprint comparison, the Department shall immediately advise the agency which submitted the applicant fingerprints of the arrest in writing. Arrests made in other states or by the federal government will not result in notification, as access to these arrests is restricted by federal law. The information on arrests for these applicants in other states and by the federal government is available only upon a fingerprint submission to the Federal Bureau of Investigation.

(5) The annual fee for participation in the AFRNP shall be $6 per individual record retained. The fee is charged on the annivesary month of the applicant’s initial entry into the program.

(6) The initial entry of an applicant’s fingerprints into the AFRNP BIS database must be accompanied by a state or a state and national criminal history records check. There is no additional fee for the first year of participation in the program. For each succeeding year, the $6 per record annual fee will be charged.

(7) Noninstructional contractors who are subject to criminal history checks and whose fingerprints are retained in the AFRNP for five years under Section 1012.467, F.S. and Section 435.12, F.S., shall pay the prescribed fee for the five year retention period at the initial submission of fingerprints. All other submissions which are retained will be charged this fee annually in advance on the anniversary of the individual applicant’s initial entry into the program.

(8) As a condition of participation in the AFRNP, the agency or qualified entity must inform the Department in writing or electronically and receive written confirmation from the Department of all persons with retained fingerprints who are no longer employed, licensed, certified, or otherwise associated with the agency in order that such persons may be removed from the AFRNP. database. Without regard to whether an applicant fingerprint entry is retained in the AFRNP database, data from an applicant fingerprint entry which would improve the quality or clarity of an arrest fingerprint entry will be merged with the arrest fingerprints, and the applicant print will be retained as part of the criminal history record database. An applicant fingerprint entry which is found to match a latent fingerprint taken from a crime scene will be retained as part of the criminal history database unless an arrest fingerprint offers a match that is at least as demonstrable.

Rulemaking Authority 943.05(2)(g), (h), 1012.32(3), 1012.465, 1012.56 FS. Law Implemented 220.187(6)(b), 432.12, 496.4101(3)(c), 550.105(10)(c), 551.107(7)(c), 560.141(1)(c)3, 559.555(2)3, 744.3135(4)(b), 943.13(5), 985.644(5)(h)(3)(c), 1002.395(6)(b)3, 1002.421(3)(a), 1012.32(3), 1012.465, 1012.467, 1012.56 FS.  History–New 11-30-04, Amended 6-9-08, 9-28-09, 5-21-12, ____________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Bureau Chief Timothy Giesecke

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Governor and Cabinet

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 02, 2016

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: October 30, 2015