Oregon Bulletin
Rule
Caption: Adopts rules allowing OSP to
gather, access, maintain, and transmit mental health info to NICS.
Adm.
Order No.: OSP 5-2011(Temp)
Filed with Sec. of
State: 12-13-2011
Certified to be
Effective: 12-15-11 thru 6-12-12
Notice Publication
Date:
Rules Adopted: 257-010-0060
Subject: The federal Brady Handgun Violence Prevention Act of
1993 (Brady Act), the United States Attorney General is required to establish
the National Instant Criminal Background Check System (NICS), which allows
federal firearm licensees to instantly contact the Federal Bureau of
Investigation and determine whether a prospective firearm transfer would
violate federal or state law. The federal NICS Improvement Amendment Act of
2007 (NIAA) became effective January 8, 2008 and requires states to transmit to
NICS all state records of individuals who are subject to a federal firearm ban
under 18 USC §922(d) and (g), including those individuals with mental health
issues or state mental health commitments. The NIAA also requires states to
adopt procedures whereby persons with mental health issues or state mental
health commitments and who are prohibited from purchasing, possessing,
transporting or receiving a firearm under 18 USC §922(d)(4) and (g)(4), may
petition to have their federal firearm rights restored. Oregon Laws 2009,
chapter 826 (House Bill 2853) implements the requirements of the NIAA by not
only requiring certain state agencies in possession of records of individuals
with mental health issues or state mental health commitments to transmit
“minimum information” of those persons to the department for maintenance of
that information, but requires the department to transmit that “minimum
information” to NICS. Oregon Laws 2009, chapter 826 (House Bill 2853) further
implements the NIAA by allowing the Psychiatric Security Review Board (PSRB) to
conduct contested case administrative hearings to determine whether a person subject
to either a federal firearm prohibition under 18 USC §922(d)(4) and (g)(4), a
state firearm prohibition under ORS 166.250(1)(c)(D) or (E), or a state firearm
prohibition under ORS 166.470(1)(e) or (f), should be granted relief and their
gun rights restored.
This
administrative rule creates the means and manner by which “minimum information”
of persons prohibited under 18 U.S.C. §922(d)(4) and (g)(4) from purchasing,
possessing, transporting or receiving a firearm is received and maintained, as
well as transmitted to the federal government for inclusion in the NICS
database, by the department. It creates the means and manner by which “minimum
information” of persons prohibited from possessing a firearm under ORS 166.250
(1)(c)(D) or (E), or prohibited from receiving a firearm under ORS 166.470
(1)(e) or (f), is received and maintained by the department. Creates the means
and manner by which the department processes, maintains, updates, and transmits
to the federal government, records of relief from firearm prohibitions granted
by either the Psychiatric Security Review Board or an appellate court.
Specifically defines “designated agencies” for purposes of the rule to mean the
Oregon Department of Human Services (DHS), the Oregon Health Authority (OHA), the
PSRB, and the Oregon Judicial Department (OJD). Defines “minimum information”
to mean only those data elements or identifying information that is minimally
or nominally required under federal law to accurately identify a person
prohibited under 18 U.S.C. §922(d)(4) and (g)(4) from purchasing, possessing,
transporting or receiving a firearm, and includes the person’s name, date of
birth, gender and reference information that identifies the originating agency
or court. Defines “PPF” to mean a Prohibited Persons File created by the
department and to which “minimum information” from designated agencies is
deposited and maintained by the department, and from which “minimum
information” is transmitted to NICS for persons prohibited under 18 U.S.C. §922(d)(4)
and (g)(4) from purchasing, possessing, transporting or receiving a firearm.
Requires designated agencies to send to the department all current and former
client “minimum information” in a single file as required under ORS 181.740 in
order for the department to enter that information into the PPF and transmit
the PPF to NICS. Requires designated agencies to provide subsequent “minimum
information” for their clients to the department immediately to OSP or as soon
as such client “minimum information” becomes available, in an electronic format
approved by the department. Requires the department to transmit subsequent
“minimum information” obtained from designated agencies contained in the PPF to
NICS on a daily basis through a secure electronic message via the Law Enforcement
Message Switch (LEMS). Requires the department to request NICS to send the
department a report every 3 months that details Oregon’s mental health
prohibited person record data located in NICS for comparison with the data
contained in the department’s PPF. Requires the department to refer any
discrepancies between NICS and the PPF back to the agency that originally
created the mental health record of the prohibited person for resolution, and
requires designated agencies to include any updates made to previously
submitted “minimum information” by originating agencies in their subsequent
electronic transmissions of “minimal information” to the department. Requires
the PSRB to send an electronic notification alerting the department to update
the PPF if the PSRB grants relief from the prohibitions under 18 U.S.C. §922(d)(4)
and (g)(4) for the purchase, possession, transportation or receipt of a
firearm, and requires the department to transmit the record of relief to NICS
on the day the department receives the electronic notification, either in its
daily PPF transmission to NICS or in a separate transmission to NICS. Requires
the department to transmit an appellate judgment granting relief from the
prohibitions under 18 U.S.C. §922(d)(4) and (g)(4) for the purchase,
possession, transportation or receipt of a firearm to NICS on the day OSP
receives the appellate judgment, either in its daily PPF transmission to NICS
or in a separate transmission to NICS. Specifies that when the PSRB grants
relief from the prohibitions under 18 U.S.C. §922(d)(4) and (g)(4) for the
purchase, possession, transportation or receipt of a firearm, or grants
additional or alternative relief from either the prohibition on possessing a
firearm under ORS 166.250 (1)(c)(D) or (E), or the prohibition on receiving a
firearm under ORS 166.470 (1)(e) or (f), the PSRB shall send the minimum
information of the person for whom relief is granted electronically to OSP and
that OSP, upon receipt of the minimum information from the PSRB, shall then
update the PPF and transmit the minimum information and notification of relief
to NICS on the same day that OSP receives the minimum information from the
PSRB. Requires that when a person files a petition for judicial review with an
appellate court following a final order of the PSRB that denies relief, and an
appellate court subsequently grants the person relief from the prohibitions
under 18 U.S.C. §922(d)(4) and (g)(4) for the purchase, possession,
transportation or receipt of a firearm, or grants additional or alternative
relief from either the prohibition on possessing a firearm under ORS 166.250
(1)(c)(D) or (E), or the prohibition on receiving a firearm under ORS 166.470
(1)(e) or (f), the Oregon Judicial Department (OJD) shall send the minimum information
of the person for whom relief is granted electronically to OSP and that OSP,
upon receipt of the minimum information from OJD, shall update the PPF and
transmit the minimum information and notification of relief to NICS on the same
day OSP receives the minimum information from OJD. Requires a person granted
relief under the following situations to provide OSP with a certified copy of
either the PSRB written order or appellate judgment granting relief and a copy
of the person’s fingerprint card: a) the person granted relief was found
responsible except for insanity for an act under ORS 419C.411, b) the person
granted relief was found guilty except for insanity of a crime under ORS
161.295 to 161.370 and the person has an existing criminal history, or c) the
person granted relief was found by a court to lack fitness to proceed under ORS
161.370 and the person has an existing criminal history.
Rules Coordinator: Cort Dokken—(503) 934-0228
257-010-0060
Mental Health Information
Reporting to NICS
(1) Definitions. As used in this administrative rule:
(a) “Designated Agencies” means the Oregon Department
of Human Services (DHS), the Oregon Health Authority (OHA), the Psychiatric
Review Board (PSRB), and the Oregon Judicial Department (OJD).
(b) “Minimum Information” means only those data
elements or identifying information that is minimally or nominally necessary to
accurately identify a person listed under ORS 181.740(1) and who is prohibited
under either 18 U.S.C. §922(d)(4) and (g)(4) from purchasing, possessing,
transporting or receiving a firearm, ORS 166.250(1)(c)(D) or (E) from
possessing a firearm, or ORS 166.470(1)(e) or (f) from receiving a firearm.
“Minimum information” includes at least the person’s name, date of birth,
gender and ORI number of the designated agency or originating court that
originally created the underlying record or file of the person. “Minimum
information” does not include any medical, psychiatric or psychological
information, case histories or files of a person, or any record or file of a
designated agency or originating court.
(c) “NICS” means the National Instant Criminal
Background Check System mandated by the Brady Handgun Violence Prevention Act
of 1993 (Pub. L. 103-159, 107 Stat. 1536).
(d) “ORI” means the Law Enforcement Data System (LEDS)
and FBI National Crime Information Center (NCIC) originating agency identifier
code.
(e) “Originating court” means the Oregon county circuit
court that transmits a mental health record to OSP as required under either ORS
426.160 or 427.293.
(f) “Prohibited Persons File” (PPF) means a data table
created by OSP that contains minimum information, as reported to OSP by the
designated agencies or originating courts responsible for maintaining Oregon
mental health records, for individuals that are prohibited under either 18
U.S.C. §922(d)(4) and (g)(4) from purchasing, possessing, transporting or
receiving a firearm, ORS 166.250(1)(c)(D) or (E) from possessing a firearm, or
ORS 166.470(1)(e) or (f) from receiving a firearm. This file will be maintained
by OSP in LEDS. The agencies contributing to the file will be responsible for
ensuring the data is accurate. Information in this file is confidential and not
to be accessed for any purpose other than:
(A) Maintaining the minimum information in the PPF;
(B) Reporting minimum information to NICS as required
by federal and state law;or
(C) Conducting instant firearm criminal history checks
as defined under ORS 166.432.
(2) Transmission of Existing Minimum Information to OSP
and NICS.
(a) As soon as a designated agency is capable of
electronically transmitting existing minimum information to OSP, the designated
agency shall provide OSP with all current and former client minimum information
as required under ORS 181.740.
(b) Each designated agency shall provide all of its
current and former client information to OSP in one single electronic file. The
single electronic file shall contain all minimum information data elements in
an electronic format that is capable of being individually searched and copied.
(c) Notwithstanding subsection (2)(b) of this rule,
designated agencies may provide minimum information to OSP in a non-electronic
format, on a client-by-client basis and only as approved by OSP.
(d) Given the current limitations of the Oregon
Judicial Department’s information systems, OJD shall continue working with OSP
and designated agencies to accomplish reconciliation of its records to those
records of the other designated agencies. OJD shall continue its efforts to
upgrade its information systems in order for OJD to provide minimum information
to OSP as required under ORS 181.740. Upon OJD having the capability of
providing minimum information to OSP from its information systems, OJD shall
provide all of its current and former minimum information to OSP in one single
electronic file, as provided in section (2)(b) of this rule.
(e) Upon receipt of any designated agency’s minimum
information, OSP may search, use, copy, and maintain that minimum information.
OSP shall enter the minimum information into the PPF and electronically
transmit it from the PPF to NICS.
(3) Transmission of Subsequent Minimum Information to
OSP and NICS.
(a) Upon providing OSP with minimum information as
provided under subsection 2 of this rule, designated agencies shall thereafter
provide subsequent client information to OSP in electronic format, in a format
approved by OSP. Designated agencies and originating courts shall
electronically transmit subsequent minimum information to OSP as soon as such
client minimum information becomes available for transmission and inclusion
into the PPF Designated agencies shall not delay in transmitting minimum
information to OSP and shall transmit minimum information to OSP immediately
upon such information becoming available to the designated agency.
(b) Designated agencies shall provide minimum
information data elements to OSP in an electronic format that is capable of
being individually searched and copied.
(c) Upon OJD having the capability of providing minimum
information to OSP from its information systems, OJD shall thereafter provide
subsequent minimum information to OSP, including information from originating
courts, as provided in section (3)(a) of this rule.
(d) Upon receipt of any designated agency’s minimum
information, OSP may search, use, copy, and maintain that minimum information.
OSP shall enter the minimum information into the PPF and electronically
transmit it from the PPF to NICS on a daily basis through a secure electronic
message via the Law Enforcement Message Switch (LEMS).
(e) Notwithstanding subsection (3)(b) of this rule,
designated agencies may provide minimum information to OSP in a non-electronic
format, on a client-by-client basis and only as approved by OSP. In the event
that OSP accepts minimum information from a designated agency in a
non-electronic format, OSP shall electronically enter the minimum information
for that particular person into the PPF, and return the non-electronically
formatted minimum information to the designated agency.
(4) PPF and Minimum Information Maintenance. OSP shall
request a report from NICS every 3 months that details Oregon’s mental health
prohibited person record data located in NICS for comparison with the data in
the PPF. OSP shall send data discrepancies to the submitting designated agency
for resolution. Based on ORI number, designated agencies may further re-direct
challenges to the court of original jurisdiction for resolution. Designated
agencies shall include any changes or amendments to previously submitted
minimum information in their subsequent electronic transmissions of minimum
information to OSP.
(5) Challenges to Minimum Information. All minimum
information and data elements maintained by OSP in the PPF is the minimum
information and data elements directly submitted to OSP by designated agencies.
Any and all challenges to minimum information data elements submitted to OSP by
a designated agency and that are contained or maintained by OSP in the PPF and
transmitted to NICS will be re-directed to the submitting designated agency for
resolution. Based on ORI number, designated agencies may further re-direct
challenges to the court of original jurisdiction for resolution.
(6) Relief Maintenance.
(a) When the PSRB grants relief from the prohibitions
under 18 U.S.C. §922(d)(4) and (g)(4) for the purchase, possession,
transportation or receipt of a firearm, or grants additional or alternative
relief from either the prohibition on possessing a firearm under ORS
166.250(1)(c)(D) or (E), or the prohibition on receiving a firearm under ORS
166.470(1)(e) or (f), the PSRB shall send the minimum information of the person
for whom relief is granted electronically to OSP. Upon receipt of the minimum
information from the PSRB, OSP shall update the PPF and transmit the minimum
information and notification of relief to NICS on the same day OSP receives the
minimum information from the PSRB.
(b) When a person files a petition for judicial review
with an appellate court following a final order of the PSRB that denies relief,
and the appellate court subsequently grants the person relief from the
prohibitions under 18 U.S.C. §922(d)(4) and (g)(4) for the purchase,
possession, transportation or receipt of a firearm, or grants additional or
alternative relief from either the prohibition on possessing a firearm under
ORS 166.250(1)(c)(D) or (E), or the prohibition on receiving a firearm under
ORS 166.470(1)(e) or (f), OJD shall send the minimum information of the person
for whom relief is granted electronically to OSP as provided in subsection 3(b)
of this rule. Upon receipt of the minimum information from OJD, OSP shall
update the PPF and transmit the minimum information and notification of relief
to NICS on the same day OSP receives the minimum information from OJD.
(c) In addition to the requirements set forth in 6 (a),
whenever the PSRB or an appellate court grants relief under the following
circumstances, the person granted relief shall provide a certified copy of
either the PSRB written final order or appellate judgment and the person’s
fingerprint card to OSP for the purposes of updating the petitioner’s
Computerized Criminal History:
(A) The person granted relief was found responsible
except for insanity for an act under ORS 419C.411;
(B) The person granted relief was found guilty except
for insanity of a crime under ORS 161.295 to 161.370 and the person has an
existing criminal history; or
(C) The person granted relief was found by a court to
lack fitness to proceed under ORS 161.370 and the person has an existing
criminal history.
Stat. Auth.: ORS 181.740, 426.130,
426.160, 427.290, 427.293, 161.370, 161.295–161.370, 419C.411, 161.327,
161.336–161.351, & 419C.529–419C.544 & 192.440
Stats. Implemented: ORS 181.740,
OL 2009 Ch 826
Hist.: OSP 5-2011(Temp), f.
12-13-11, cert. ef. 12-15-11 thru 6-12-12
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.
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