2120 L Street, NW, Suite 700 T 202.822.8282 HOBBSSTRAUS.COM Washington, DC 20037 F 202.296.8834 September 15, 2015 GENERAL MEMORANDUM 15-065 BIA Implementation Procedures for the Purpose Code X Program; For Use in Background Checks for Emergency Child Placements The Bureau of Indian Affairs-Office of Justice Services (BIA-OJS) has announced the procedures by which tribes may request to participate in the new BIA-OJS Purpose Code X Program. Under the Purpose Code X Program BIA-OJS dispatch centers will be available 24-7 to perform (at the request of tribal police departments and social service agencies) immediate name-based criminal history checks of persons in a home where an emergency child placement is contemplated. We reported on the development of the Purpose Code X Program in our General Memorandum 15-062 of August 25, 2015, but at that time the implementation procedures were not in place. The BIA procedures include several requirements. For example, the tribe will be responsible for ensuring that each resident in the home of the emergency placement (13 years of age or older) consents to the preliminary name-based background check with the submission of fingerprints, and that the required fingerprints are submitted to the FBI within 15 days of the name-based check. There are several methods for submitting fingerprints: 1) via the state criminal history record repository; 2) via an FBI-approved Channeler; 3) via hard copy fingerprint card submission directly to the FBI; and 4) via Department of Justice Tribal Access Program (TAP). Tribes who wish to participate in the Purpose Code X Program must request to utilize the Fingerprint Submission Requirements Rule. We attach the following: The Dear Tribal Leader Letter from BIA Director Michael Black; The BIA Purpose Code X Implementation Procedures; The draft letter for tribes to use when requesting to utilize the Fingerprint Submission Requirements Rule. The letter from Director Black states that the BIA will be "reviewing the implementation procedures and will continue adding additional tribes based on tribal needs and requests." Let us know if we may provide additional information or assistance regarding the BIA Purpose Code X Program. Inquires may be directed to: Tim Seward (tseward@hobbsstraus.com) Karen Funk (kfunk@hobbsstraus.com) Moriah O'Brien (mobrien@hobbsstraus.com) # # # HOBBS STRAUS DEAN & WALKER, LLP WASHINGTON, DC PORTLAND, OR OKLAHOMACITY, OK SACRAMENTO,CA
BIA Purpose Code X Implementation Procedures Effective May 13, 2015, the Bureau of Indian Affairs, Office of Justice Services (OJS), on behalf of federally-recognized tribes, is authorized under the Fingerprint Submission Requirements Rule (Title 28, Code of Federal Regulations, Sections 901.2 and 901.3) to access the Interstate Identification Index (III) System on a delayed fingerprint submission basis when conducting criminal history record checks of residents with whom children are to be temporarily placed during exigent circumstances. Federally-recognized tribes that receive funds under the Indian Self-Determination and Education Assistance Act ((Title 25, United States Code (U.S.C.), 450, et. seq) or the Tribally Controlled Schools Act (25 U.S.C. 2501, et. seq) are authorized to access criminal history record information (CHRI) pursuant to Public Law (Pub. L.) 101-630 (25 U.S.C., 3205 and 3207). In the absence of state laws and procedures governing such background checks, OJS may facilitate, on behalf of the federally-recognized tribes, access to the III System for the emergency placement of a child into a home. This III System access is for the expressed purpose of screening residents for emergency child placement. To accommodate these requests, OJS has implemented Purpose Code X procedures to be used on requests for CHRI for the emergency placement of children in exigent circumstances. It is important to note that this is the only authorized use of Purpose Code X. Preliminary III name-based checks must be followed by the submission of applicant fingerprints to the FBI within 15 calendar days from the date of the III inquiry. Request Process: 1. Tribal Police Department (PD)/Tribal Social Services Agency (SSA) shall submit a written request to OJS to utilize the Fingerprint Submission Requirements Rule pursuant to the approval. The request must include: a. The official name and address of the authorized agency requesting and receiving CHRI. b. The method in which follow up applicant fingerprints shall be submitted to the FBI. i. Via the state criminal history record repository 1. Include a copy of the tribal/state agreement in place with the state criminal history record repository (i.e. billing agreement, user agreements, etc.) a. May require the assignment of a Z-ending Originating Agency Identifier (ORI). This requirement varies by state. ii. Via an FBI-approved Channeler 1. Include a copy of the contract between the Channeler and the tribal PD or the tribal SSA. (The use of an FBI-approved Channeler must be approved in writing by the FBI Compact Officer.) (A list of FBI-Approved Channelers may be found at https://www.fbi.gov/about-us/cjis/cc/current-initiatives/list-of-fbiapproved-channelers-1 ) iii. Via hard copy fingerprint card submission directly to the FBI 1
BIA Purpose Code X Implementation Procedures 1. Include a copy of the billing agreement between the FBI and the tribe. 2. Requires the assignment of a Z-ending ORI. (An existing Z- ending ORI will be sufficient to fulfill this requirement.) iv. Via the Department of Justice Tribal Access Program: http://www.justice.gov/tribal/tribal-access-program-tap 1. Apply to, and be accepted in, the DOJ TAP program. 2. Tribes participating in TAP will remain responsible to pay for FBI CJIS User Fees associated with checks for noncriminal justice purposes, executing a user fee Memorandum of Understanding with CJIS. 3. May require the assignment of a specific Originating Agency Identifier (ORI). c. A request for the assignment of a T-ending ORI to the tribal SSA (a noncriminal justice agency). 2. OJS shall confirm the tribe is authorized to access CHRI and forward the tribe s request to the FBI Compact Officer and the state CJIS Systems Officer (CSO), if applicable. 3. The FBI shall review the request. If approved, the FBI shall perform the following: a. Assign a T-ending ORI based on the information provided in 1.a. (Responsible Party: NCIC Operations and Policy Unit [NOPU]) b. Based on the method selected for follow up fingerprint submissions: i. Via the state criminal history record repository, assign a Z-ending ORI, if required by the state. (Responsible Party: NOPU) ii. Via an FBI-approved Channeler, ensure channeling approval is on file. (Responsible Party: CHIPU Compact Team) iii. Via hard copy fingerprint card submission directly to the FBI, assign a Z- ending ORI (if not previously assigned). (Responsible Party: NOPU) c. Provide written approval to OJS with a copy to the state CSO, if applicable. (Responsible Party: FBI Compact Officer, or designee) 4. OJS shall provide a copy of the written approval to the tribe. Preliminary III Name-Based Criminal History Record Check Requirement: 1. Each resident, thirteen (13) years of age or older, in a home where the potential emergency placement is to be made must consent to a preliminary III name-based check (includes name, date of birth, and social security number) with the submission of fingerprints to the FBI within 15 calendar days from the date that the name-base check was conducted. Each resident must complete and sign a Criminal History Background Check Request Authorization Form prior to OJS conducting a federal name-based check. For resident under the age of 18, a parent or guardian must also sign the authorization form. 2. The requesting tribal PD/SSA Case Worker must sign a completed authorization form prior to forwarding the request to OJS. 3. Upon receiving a request from a tribal PD/SSA for a federal name-based check, OJS will be responsible for: 2
BIA Purpose Code X Implementation Procedures o Verifying that the authorization form has been signed by both the requestor and the resident and the form has been fully completed. NOTE: OJS will need to maintain a copy of this form for 10 years or until the next noncriminal justice agency audit (whichever is less). This documentation may also be requested during the State s triennial FBI CJIS Audit. o Completing a federal name-based criminal history check on the individual named on the authorization form(s) provided by the tribal PD/SSA. 4. When conducting a Purpose Code X federal name-based check OJS must: o Use the OJS law enforcement ORI and Purpose Code X. o The Reason Field must indicate Emergency Placement o The ATTN Field must include the tribal SSA ORI (T-ending) and the requestor s first and last name the requestor should be the tribal PD/SSA Case Worker. 5. OJS is responsible for providing the results of the federal name-based check to the tribal PD/SSA Case Worker making the request. Do not provide the results of the federal name-based check to the subject. The subject may only receive the results from the fingerprint submission to the FBI after positive identification has been made. o By providing the results to the tribal PD/SSA Case Worker, OJS must document all secondary dissemination in a log. This includes physically providing a copy of the criminal history and verbally providing criminal history information. 6. The requesting tribal PD/SSA Case Worker must notify OJS of the date the subject is fingerprinted and the date fingerprints are sent to the FBI. If fingerprints were not submitted, the reason why. 7. If an emergency placement is denied as a result of the federal name-based check of a resident and the resident contests the denial, the resident may within 15 calendar days of the denial submit fingerprints for a federal background check. Follow-Up Fingerprint Submission Requirement: 1. Fingerprint cards for approved subjects should include the following: a) Is an Applicant Card b) Contains the tribal SSA ORI Number (T-ending) in the ORI Field. If using an FBI-approved Channeler, the T-ending ORI should be placed in the OCA Field. c) Contains Pub. L. 101-630 Emergency Child Placement in the Reason Fingerprinted Field. d) The Employers Address should be the agency assigned the T-ending ORI. 2. Should any resident on whom a federal name-based check was conducted fail to provide fingerprints when requested, the child will not be placed or will be immediately removed from the placement home. 3. The tribal SSA Case Worker must note in the case file the date the follow-up fingerprints were submitted or, if fingerprints were not submitted, the reason why. For example, the case file may indicate: The child was cared for by the grandparents, aunt, uncle, etc. on mm/dd/yyyy; child returned to parent/guardian on mm/dd/yyyy which was prior to the 15 calendar day timeframe requirement. 3
REQUEST LETTER FOR [insert Federally Recognized Tribe s name] TO UTILIZE THE FINGERPRINT SUBMISSION REQUIREMENTS RULE FOR THE EMERGENCY PLACEMENT OF CHILDREN IN EXIGENT CIRCUSMTANCES PURPOSE CODE X [Date] Darren Cruzan, Director Office of Justice Services Headquarters Bureau of Indian Affairs 1849 C Street NW, MS-2603-MIB Washington, DC 20240 Dear Director Cruzan: I am writing to request that the Bureau of Indian Affairs (BIA), on behalf of [Insert Federally Recognized Tribe s name], a federally recognized tribe, apply to utilize the Fingerprint Submission Requirements Rule (Title 28, Code of Federal Regulations, part 901) pursuant to the National Crime Prevention and Privacy Compact Council s (Council) approval granted on May 13, 2015. The authority to access criminal history record information (CHRI) is pursuant to Public Law (Pub. L.) 101-630, the Indian Child Protection and Family Violence Prevention Act (Title 25, United States Code, Sections 3205 and 3207). The approved proposal allows the BIA to conduct preliminary criminal history name check inquiries of the Interstate Identification Index (III) System using Purpose Code X to screen residents with whom children are to be temporarily placed during exigent circumstances. [Insert Federally Recognized Tribe s name] will be responsible for coordinating the submission of follow up fingerprints of each required resident within the required time frame, not to exceed fifteen calendar days from the date of the initial III inquiry. The following implementation information is provided to support this request: 1) The official name, address, and phone number of the authorized agency requesting and receiving CHRI is: Name of Agency: Address: Phone: 2) The official name, address, phone number, and the law enforcement ORI of the authorized law enforcement agency conducting the initial III name-check inquiry is: Name of Agency: Address: Phone: Law Enforcement ORI:
3) The method in which the required follow up fingerprints will be submitted: Via the state criminal history record repository to the FBI. Via an FBI-approved Channeler to the FBI: [insert contractor s name]. Via hard copy fingerprint card submission directly to the FBI. Please note: For applicant fingerprint processing, the tribe must have an FBI Billing Agreement in place with the FBI. 4) Information for the FBI to assign a T-ending Originating Agency Identifier (ORI) to the designated noncriminal justice agency listed below. Name of Agency: Address: Phone: Point of Contact: Further, the [Insert Federally Recognized Tribe s name] understands that this name-based access to the III System is for the express purpose of screening residents for emergency child placement and is the only authorized use of Purpose Code X. Only upon receipt of written approval from the FBI Compact Officer will [Insert Federally Recognized Tribe s name] begin utilizing the Fingerprint Submission Requirements Rule when placing children during exigent circumstances. Sincerely, [insert name] [insert title] [insert phone number] [insert email address] 2