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Oregon Bulletin

January 1, 2012

 

Department of Oregon State Police
Chapter 257

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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