Implementation of the Private Security Officer Employment Authorization Act of 2004, 1690-1695 [06-223]

Agencies

• Federal Bureau of Investigation
• Department of Justice

[Federal Register Volume 71, Number 7 (Wednesday, January 11, 2006)]
[Rules and Regulations]
[Pages 1690-1695]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-223]


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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

28 CFR Part 105

[Docket No. FBI 112; AG Order No. 2796-2006]
RIN 1110-AA23


Implementation of the Private Security Officer Employment 
Authorization Act of 2004

AGENCY: Federal Bureau of Investigation (FBI), Department of Justice.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Department of Justice (the Department) hereby amends title 
28 of the Code of Federal Regulations to authorize access to FBI-
maintained criminal justice information systems to effectuate the 
Private Security Officer Employment Authorization Act of 2004, which 
was enacted as section 6402 of the Intelligence Reform and Terrorism 
Prevention Act of 2004. This law authorizes a fingerprint-based check 
of state and national criminal history records to screen prospective 
and current private security officers and requires the Attorney General 
to issue rules to regulate the ``security, confidentiality, accuracy, 
use, submission, dissemination, destruction of information and audits, 
and record keeping'' of the criminal history record information (CHRI) 
and related information; standards for qualifying as an authorized 
employer; and the imposition of fees.

DATES: The rule is effective January 11, 2006. Written comments must be 
received on or before March 13, 2006.

ADDRESSES: All comments may be submitted to Assistant General Counsel 
Harold M. Sklar, Federal Bureau of Investigation, CJIS Division, 1000 
Custer Hollow Road, Module E-3, Clarksburg, West Virginia 26306, or by 
telefacsimile to (304) 625-3944. To ensure proper handling, please 
reference FBI Docket No. 112 on your correspondence. You may view an 
electronic version of this proposed rule at https://www.regulations.gov. 
You may also comment via electronic mail at enexreg@leo.gov or by using 
the https://www.regulations.gov comment form for this regulation. When 
submitting comments electronically you must include RIN 1110-AA23 or 
FBI Docket No 112 in the subject box.

FOR FURTHER INFORMATION CONTACT: Assistant General Counsel Harold M. 
Sklar, telephone number (304) 625-2000.

SUPPLEMENTARY INFORMATION:

Background

    On December 17, 2004, the Intelligence Reform and Terrorism 
Prevention Act of 2004, Public Law 108-458, became law. Section 6402 of 
that Act (The Private Security Officer Employment Authorization Act of 
2004) authorizes a fingerprint-based criminal history check of state 
and national criminal history records to screen prospective and current 
private security officers. Section 6402(d)(2) requires the Attorney 
General to publish an interim final or final regulation within 180 days 
of the statute's enactment to regulate the ``security, confidentiality, 
accuracy, use, submission, dissemination, destruction of information 
and audits, and record keeping'' of the CHRI and related information; 
standards for qualifying an authorized employer; and the imposition of 
fees.
    The FBI maintains several criminal justice information systems, 
notably the Fingerprint Identification Record System (FIRS) and the 
National Crime Information Center (NCIC). Access to the FIRS is 
predicated upon fingerprint submission through the Integrated Automated 
Fingerprint Identification System (IAFIS). Previously enacted federal 
law authorizes similar criminal history record checks for persons 
engaged in other professions and occupations, such as the banking, 
securities, and nursing home industries. In implementing section 6402, 
the interim rule seeks to ensure that the exchange of CHRI and related 
information relating to the employment of private security guards is 
accomplished as fully and effectively as possible, achieving the public 
safety goals of section 6402 and recognizing the sensitive nature of 
the information involved. To that end, the Department is amending title 
28 of the Code of Federal Regulations (CFR) to regulate the exchange of 
CHRI authorized by section 6402.

Additional Information

    The following discussion provides additional information to 
participating States, authorized employers, and prospective and current 
private security officers on the operation of the interim rule.
    a. To initiate a criminal history record check, section 
6402(d)(1)(A) requires the submission of ``fingerprints or other means 
of positive identification * * *.'' The IAFIS presently utilizes ten 
rolled fingerprints (captured or submitted manually or electronically) 
to effectuate a search of the FBI's criminal history repository. 
Effective June 15, 2005,

[[Page 1691]]

IAFIS has begun to also accept ten ``flat'' fingerprint impressions for 
noncriminal justice purposes subject to certain conditions. Other forms 
of positive identification cannot currently be accepted.
    b. Before an authorized employer may request a criminal history 
record check from a participating state, the authorized employer must 
execute a certification to the state, developed by the State 
Identification Bureau (SIB) or the relevant state agency for purposes 
of accepting requests for these background checks, declaring that it is 
an authorized employer that employs private security officers; that all 
fingerprints and requests for criminal history background checks are 
being submitted for private security officers; that it will use the 
information obtained as a result of the state and national criminal 
history record checks solely for the purpose of screening its private 
security officers; and that it will abide by other regulatory 
obligations. To help ensure that only legitimate use is made of this 
authority, the certification shall be executed under penalties of 
perjury, false statement, or other applicable state laws. The 
authorized employer will provide a copy of the certification to the 
appropriate state agency. The FBI will develop a model certification 
form that participating States may use for this purpose.
    c. Section 6402 and the interim rule require that an authorized 
employer obtain the written consent of an employee to submit the 
employee's fingerprints to the SIB to perform a search of the criminal 
records. Such consent should clearly indicate the employee's 
willingness to undergo a fingerprint-based criminal history record 
check for the purpose of employment as a private security officer and 
be provided not more than one year prior to the date the check is 
requested. In light of the triennial auditing cycle maintained by the 
FBI and the States, the authorized employer must retain such consent 
forms for no less than three years from the date when the consent was 
last used as a basis for a records check request.
    d. The Act provides legal authority for a criminal history record 
check--the check is permissive, not mandatory. Subject to any contrary 
requirements of a particular jurisdiction, an employer may forego 
requesting a check or may provide interim employment during the 
pendency of a check. The Act does not compel an adverse or favorable 
employment determination based upon the results of the check. Nor does 
a favorable section 6402 check guarantee employment or provide an 
applicant or an employee any legal right or entitlement.
    e. In States that do not have state standards for a private 
security officer, section 6402(d)(1)(D)(ii)(I)(aa) permits notification 
of the fact of ``conviction'' of certain crimes to an employer. In 
light of the Act's silence as to the impact of post-conviction relief, 
the legal import of the various forms of post-conviction relief shall 
be determined by applying the law of the convicting jurisdiction.
    f. Section 6402(d)(1)(D) contains two periods for considering 
relevant criminal conduct--ten years from convictions for non-felony 
crimes involving ``dishonesty or a false statement'' or ``the use or 
attempted use of physical force,'' and 365 days for a charge for a 
felony that remains unresolved. The statute is silent as to the date 
from which such periods should commence. Although the date of 
submission by an employer or state agency and the date of processing by 
the SIB and FBI may vary for several reasons (including whether the 
submission is in manual or electronic form), the date of fingerprint 
capture is static. Hence, for uniform application of this federal 
statute, these periods should be considered to commence in reference to 
the date the fingerprints were taken.
    Pursuant to section 6402(d)(1)(D), a State that does not have 
``standards for qualifications to be a private officer * * * shall 
notify an authorized employer as to the fact of whether an employee has 
been * * * charged with a criminal felony for which there has been no 
resolution during the preceding 365 days.'' The regulation clarifies 
that an employee shall be considered ``charged with a criminal felony 
for which there has been no resolution during the preceding 365 days'' 
if the individual is the subject of a complaint, indictment, or 
information, issued within 365 days of the date that the fingerprints 
were taken, for a crime punishable by imprisonment for more than one 
year.
    g. Criminal history records maintained by the SIBs and the FBI 
frequently do not include information about the disposition of arrest 
records. In light of this fact, the interim rule provides that if 
relevant CHRI is missing disposition information, the SIB or 
responsible agency will make reasonable efforts to obtain such 
information to promote the accuracy of the record and the integrity of 
the application of the relevant standards. The interim rule also 
provides that if additional time beyond a State's standard response 
time is needed to find relevant disposition information, the SIB or 
responsible agency may notify the authorized employer that additional 
research is necessary before a final response can be provided.
    h. It is the general practice of the FBI and SIBs when processing 
criminal history background checks for licensing and employment 
purposes, such as the checks authorized under Public Law 92-544, to 
have the SIB first determine whether the applicant has a criminal 
history at the state level. By checking records at the state level 
first, a more thorough criminal history check is conducted. If a record 
is found at the state level, the SIB may retrieve the remainder of the 
record by accessing the FBI's Interstate Identification Index. The FBI 
receives fingerprint submissions of individuals who do not have an 
identifiable record at the state level and the results of the FBI check 
are then returned to the authorized agency. This work process is 
reflected in section 105.23(b) of the interim rule.
    i. Section 6402(d)(4) authorizes the imposition of a user fee by 
the FBI ``to process background checks * * *.'' Additionally, section 
6402(d)(4)(C) authorizes a State ``to assess a reasonable fee on an 
authorized employer for the costs to the State of administering this 
Act.'' The interim rule acknowledges this user fee authority.
    j. Section 6402(c)(3)(A) authorizes the Attorney General to exempt 
some services from coverage under the Act if it would serve the public 
interest. In light of the limited period authorized by statute for the 
promulgation of these regulations, the Attorney General has not 
determined what services, if any, should be excluded from coverage. 
Therefore, the authority provided by section 6402(c)(3)(A) has been 
expressly reserved by section 105.27(c) of the regulation.
    k. The FBI diligently attempts to maintain accurate and current 
CHRI and related information. Although the Act does not expressly 
provide a record subject an opportunity to controvert his record, 
nonetheless that opportunity is provided generally by other 
regulations. See 28 CFR 50.12(b). An employee seeking to review the 
CHRI upon which an adverse determination was predicated is authorized 
by federal law to receive his CHRI by the submission of fingerprints 
and a fee to the FBI. 28 CFR 16.32 et seq., implementing Departmental 
Order 556-73. However, inasmuch as the SIB or designated state agency 
is in possession of the employee's CHRI (which was predicated upon 
positive identification), requiring an employee to comply with the 
Departmental Order proceeding is

[[Page 1692]]

unnecessarily expensive and time-consuming. Therefore, a State may 
redisseminate the employee's CHRI to the subject of the record in such 
cases.
    l. Numerous States already have adequate statutory authority under 
the auspices of Public Law 92-544 to perform state and national 
fingerprint-based criminal history record checks of prospective and 
current private security officers, and therefore may elect to opt out 
of participation in this program. Other states may, for other reasons, 
wish not to participate in this program for national background checks 
on private security officers. Congress has therefore provided that a 
State may opt out of the Act by enactment of a law or promulgation of a 
gubernatorial order. Section 6402(d)(5). If a State elects to opt out 
of the Act, these regulations are inapplicable to that State.
    m. Section 6402(d)(1)(A) of the Act provides that an authorized 
employer ``may submit to the state identification bureau of a 
participating State'' a request for a criminal history background check 
of a private security guard employee pursuant to the Act. Although the 
law does not specify to which participating State the authorized 
employer is required to submit the request, it is generally expected 
that an authorized employer will seek background checks on its employee 
in the state of employment. Some States, however, may opt out from 
participating in this background check system even where they have no 
applicable Public Law 92-544 statute authorizing state and national 
fingerprint-based criminal history checks of prospective and current 
private security officers. In addition, some participating states may 
take time to set up a process to accept and process the checks under 
these regulations. To allow for the possibility of checks authorized by 
the Act being done in these circumstances, the interim rule provides 
that if an authorized employer is prevented from submitting an 
employee's fingerprints because the employee's employment is (1) in a 
State that does not have an applicable Public Law 92-544 statute 
authorizing state and national fingerprint-based criminal history 
checks of prospective and current private security officers and that 
has elected to opt out, or (2) in a participating state that does not 
yet have a process for accepting such fingerprint submissions under 
these regulations, then the employer may submit the employee's 
fingerprints to the SIB of another participating State other than the 
state of employment provided it obtains the permission of the 
accommodating state. Such an arrangement would be voluntary, could 
involve the imposition of additional requirements by the alternative 
state as a condition to agreeing to do the out-of-state checks, and 
would discontinue once the State where the private security guard is 
employed makes available a process for doing these checks. Conducting a 
national check through an alternative state where possible may be 
preferable to no check at all. Conducting the check through the state 
of employment is, however, generally preferable inasmuch as such states 
are more likely to have records on a subject not available at the FBI 
than an alternative state with which an employee has had no contact.
    n. Although not required by the statute, States are encouraged to 
explore the beneficial use of (1) electronic/livescan fingerprint 
capture and submission, and (2) channeling agents to transmit 
fingerprints to the FBI and the results of the criminal history checks 
to the States.

Comments Invited

    The Department is seeking comments regarding this interim rule. 
Accordingly, the Department invites interested persons to participate 
in this rulemaking by submitting written comments. The Department may 
change this rule in light of the comments received.

Good Cause Exception

    The Department's implementation of this rule as an immediately 
effective interim rule is based on the ``good cause'' exceptions found 
at 5 U.S.C. 553(b)(3)(B) and (d)(3). The private security guard 
industry is growing rapidly and performing an increasingly vital role 
in protecting the public from violent crime and terrorism. As reflected 
in the Congressional findings for the Private Security Officer 
Employment Authorization Act of 2004, ``private security officers 
protect individuals, property, and proprietary information, and provide 
protection to such diverse operations as banks, hospitals, research and 
development centers, manufacturing facilities, defense and aerospace 
contractors, high technology businesses, nuclear power plants, chemical 
companies, oil and gas refineries, airports, communication facilities 
and operations, office complexes, schools, residential properties, 
apartment complexes, gated communities, and others.'' Many of the areas 
protected by private security guards may be potential targets for 
terrorists or violent criminals. Congress found that the ``threat of 
additional terrorist attacks requires cooperation between public and 
private sectors and demands professional, reliable, and responsible 
security officers for the protection of people, facilities, and 
institutions.''
    Key to preserving the trust placed by the public in private 
security guards performing their protective duties are background 
checks that include the CHRI maintained by the FBI. These checks will 
help States and the private security guard industry assess the 
qualifications of the private security guards performing vital public 
safety and homeland security functions. Any delays in implementing such 
a program will be detrimental to the public's safety.
    Indeed, Congress recognized the need for the rapid implementation 
of this program. Section 6402(d)(2) of the Act requires the Attorney 
General to issue final or interim final regulations within 180 days of 
the law's enactment. The Department believes that the compelling public 
safety and homeland security reasons specified by Congress in the 
findings of the Act provides good cause in accordance with 5 U.S.C. 
553(b)(3)(B) for dispensing with the requirements of prior notice. 
These same reasons also provide good cause in accordance with 5 U.S.C. 
553(d)(3) for making this rule immediately effective on January 11, 
2006.

Applicable Administrative Procedures and Executive Orders

Executive Order 12866--Regulatory Planning and Review

    The proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this rule is a significant regulatory 
action under section 3(f) of Executive Order 12866 and, therefore, it 
has been reviewed by the Office of Management and Budget.

Executive Order 13132--Federalism

    This rule 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. Therefore, in accordance with Executive Order 
13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    The rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

[[Page 1693]]

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this rule and, by approving it, 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities. The FBI charges a user fee in 
compliance with Public Law 101-515. States must submit $22.00 to the 
FBI for each fingerprint forwarded to the FBI in accordance with these 
regulations. State fees for such checks can range from $5.00 to $75.00. 
This rule, however, imposes minimal costs on businesses, organizations, 
or governmental jurisdictions (whether large or small) in that the 
submission of fingerprints for State and national criminal background 
checks is voluntary on the part of both the authorized employer and the 
participating States. Additionally, any costs that may be borne by the 
current or prospective employee are expected to be minimal.

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 actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995. Additionally, the regulation authorizes State governments to 
recoup their costs by collecting a reasonable fee for their services.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business 
Regulatory Enforcement Fairness Act of 1996. See 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. The FBI charges a user fee in compliance with Public 
Law 101-515. States must submit $22.00 to the FBI for each fingerprint 
submitted pursuant to this provision. State fees for such checks can 
range from $5.00 to $75.00. Inasmuch as authorized employers are 
permitted and not mandated to request these background checks, and some 
States may opt out of doing the checks, it is not known how many such 
checks will be requested by the private security guard industry.

Paperwork Reduction Act of 1995

    The rule does not contain collection of information requirements. 
Therefore, clearance by the Office of Management and Budget under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is not required.

List of Subjects in 28 CFR Part 105

    Administrative practice and procedure, Intergovernmental Relations, 
Investigations, Law Enforcement, Privacy.


0
Accordingly, title 28 of the Code of Federal Regulations is amended as 
follows:

PART 105--CRIMINAL HISTORY BACKGROUND CHECKS

0
1. Revise the heading for part 105 to read as set forth above.

0
2. In part 105, insert a new subpart C to read as follows.

Subpart C--Private Security Officer Employment

Sec.
105.21 Purpose and authority.
105.22 Definitions.
105.23 Procedure for requesting criminal history record check.
105.24 Employee's rights.
105.25 Authorized employer's responsibilities.
105.26 State agency's responsibilities.
105.27 Miscellaneous provisions.

    Authority: 18 U.S.C. 534; sec. 6402, Pub. L. 108-458 (18 U.S.C. 
534 note).


Sec.  105.21  Purpose and authority.

    (a) The purpose of this subpart is to regulate the exchange of 
criminal history record information (``CHRI''), as defined in 28 CFR 
20.3(d), and related information authorized by Section 6402 (The 
Private Security Officer Employment Authorization Act of 2004) (Act) of 
Public Law 108-458 (The Intelligence Reform and Terrorism Prevention 
Act of 2004). Section 6402 authorizes a fingerprint-based criminal 
history check of state and national criminal history records to screen 
prospective and current private security officers, and section 
6402(d)(2) requires the Attorney General to publish regulations to 
provide for the ``security, confidentiality, accuracy, use, submission, 
dissemination, destruction of information and audits, and record 
keeping'' of the CHRI and related information, standards for qualifying 
an authorized employer, and the imposition of fees.
    (b) The regulations in this subpart do not displace state licensing 
requirements for private security officers. A State retains the right 
to impose its own licensing requirements upon this industry.


Sec.  105.22  Definitions.

    As used in this subpart:
    (a) Authorized employer means any person that employs private 
security officers and is authorized by the regulations in this subpart 
to request a criminal history record information search of an employee 
through a state identification bureau. An employer is not authorized 
within the meaning of these regulations if it has not executed and 
submitted to the appropriate state agency the certification required in 
Sec.  105.25(g), if its authority to do business in a State has been 
suspended or revoked pursuant to state law, or, in those states that 
regulate private security officers, the employer has been found to be 
out of compliance with any mandatory standards or requirements 
established by the appropriate regulatory agency or entity.
    (b) Employee means both a current employee and an applicant for 
employment as a private security officer.
    (c) Charged, with respect to a criminal felony, means being subject 
to a complaint, indictment, or information.
    (d) Felony means a crime punishable by imprisonment for more than 
one year, regardless of the period of imprisonment actually imposed.
    (e) Participating State means a State that has not elected to opt 
out of participating in the Act by statutory enactment or gubernatorial 
order. A State may decline to participate in the background check 
system authorized by the Act by enacting a law or issuing an order by 
the Governor (if consistent with state law) providing that the State is 
declining to participate. The regulations in this subpart that pertain 
to States apply only to participating states.
    (f) Person means an individual, partnership, firm, company, 
corporation or institution that performs security services, whether for 
a third party for consideration or as an internal, proprietary 
function.
    (g) Private Security Officer means an individual other than an 
employee of a Federal, State, or local government whose primary duty is 
to perform security services, full or part time, for consideration, 
whether armed or unarmed and in uniform or plain clothes, except as may 
be excluded from coverage in these regulations, except that the term 
excludes--

[[Page 1694]]

    (1) Employees whose duties are primarily internal audit or credit 
functions;
    (2) Employees of electronic security system companies acting as 
technicians or monitors; or
    (3) Employees whose duties involve the secure movement of 
prisoners.
    (h) Security services means services, whether provided by a third 
party for consideration, or by employees as an internal, proprietary 
function, to protect people or property, including activities to: 
Patrol, guard, or monitor property (including real property as well as 
tangible or intangible personal property such as records, merchandise, 
money, and equipment); protect against fire, theft, misappropriation, 
vandalism, violence, terrorism, and other illegal activity; safeguard 
persons; control access to real property and prevent trespass; or deter 
criminal activity on the authorized employer's or another's premises. 
This definition does not cover services by the employees described in 
Sec.  105.22(f) as excluded from the definition of private security 
officer.
    (i) State Identification Bureau (SIB) means the state agency 
designated by the Governor or other appropriate executive official or 
the state legislature to perform centralized recordkeeping functions 
for criminal history records and associated services in the States.


Sec.  105.23  Procedure for requesting criminal history record check.

    These procedures only apply to participating states. An authorized 
employer may obtain a State and national criminal history record check 
as authorized by section 6402 of Public Law 105-458 as follows:
    (a) An authorized employer is required to execute a certification 
to the State, developed by the SIB or the relevant state agency for 
purposes of accepting requests for these background checks, declaring 
that it is an authorized employer that employs private security 
officers; that all fingerprints and requests for criminal history 
background checks are being submitted for private security officers; 
that it will use the information obtained as a result of the state and 
national criminal history record checks solely for the purpose of 
screening its private security officers; and that it will abide by 
other regulatory obligations. To help ensure that only legitimate use 
is made of this authority, the certification shall be executed under 
penalties of perjury, false statement, or other applicable state laws.
    (b) An authorized employer must obtain a set of fingerprints and 
the written consent of its employee to submit those prints for a state 
and national criminal history record check. An authorized employer must 
submit the fingerprints and appropriate state and federal fees to the 
SIB in the manner specified by the SIB.
    (c) Upon receipt of an employee's fingerprints, the SIB shall 
perform a fingerprint-based search of its criminal records. If no 
relevant criminal record is found, the SIB shall submit the 
fingerprints to the FBI for a national search.
    (d) Upon the conclusion of the national search, the FBI will 
disseminate the results to the SIB.
    (e) Based upon the results of the state check and, if necessary, 
the national check:
    (1) If the State has standards for qualifying a private security 
officer, the SIB or other designated state agency shall apply those 
standards to the CHRI and notify the authorized employer of the results 
of the application of the state standards; or
    (2) If the State does not have standards for qualifying a private 
security officer, the SIB or other designated state agency shall notify 
an authorized employer as to the fact of whether an applicant has been:
    (i) Convicted of a felony;
    (ii) Convicted of a lesser offense involving dishonesty or false 
statement if occurring within the previous ten years;
    (iii) Convicted of a lesser offense involving the use or attempted 
use of physical force against the person of another if occurring within 
the previous ten years; or
    (iv) Charged with a felony during the previous 365 days for which 
there has been no resolution.
    (f) The limitation periods set forth in paragraph (e)(2) of this 
section shall be determined using the date the employee's fingerprints 
were submitted. An employee shall be considered charged with a criminal 
felony for which there has been no resolution during the preceding 365 
days if the individual is the subject of a complaint, indictment, or 
information, issued within 365 days of the date that the fingerprints 
were taken, for a crime punishable by imprisonment for more than one 
year. The effect of various forms of post-conviction relief shall be 
determined by the law of the convicting jurisdiction.


Sec.  105.24  Employee's rights.

    An employee is entitled to:
    (a) Obtain a copy from the authorized employer of any information 
concerning the employee provided under these regulations to the 
authorized employer by the participating State;
    (b) Determine the status of his or her CHRI by contacting the SIB 
or other state agency providing information to the authorized employer; 
and
    (c) Challenge the CHRI by contacting the agency originating the 
record or complying with the procedures contained in 28 CFR 16.34.


Sec.  105.25  Authorized employer's responsibilities.

    An authorized employer is responsible for:
    (a) Executing and providing to the appropriate state agency the 
certification to the State required under Sec.  105.23(a) before a 
State can accept requests on private security guard employees;
    (b) Obtaining the written consent of an employee to submit the 
employee's fingerprints for purposes of a CHRI check as described 
herein;
    (c) Submitting an employee's fingerprints and appropriate state and 
federal fees to the SIB not later than one year after the date the 
employee's consent is obtained;
    (d) Retaining an employee's written consent to submit his 
fingerprints for a criminal history record check for a period of no 
less than three years from the date the consent was last used to 
request a CHRI check;
    (e) Upon request, providing an employee with confidential access to 
and a copy of the information provided to the employer by the SIB; and
    (f) Maintaining the confidentiality and security of the information 
contained in a participating State's notification by:
    (1) Storing the information in a secure container located in a 
limited access office or space;
    (2) Limiting access to the information strictly to personnel 
involved in the employer's personnel and administration functions; and
    (3) Establishing internal rules on the handling and dissemination 
of such information and training personnel with such access on such 
rules, on the need to safeguard and control the information, and on the 
consequences of failing to abide by such rules.


Sec.  105.26  State agency's responsibilities.

    (a) Each State will determine whether it will opt out of 
participation by statutory enactment or gubernatorial order and 
communicating such determination to the Attorney General. Failure to 
inform the Attorney General of the determination will result in a State 
being considered a participating State.
    (b) Each participating State is responsible for:
    (1) Determining whether to establish a fee to perform a check of 
state criminal

[[Page 1695]]

history records and related fees for administering the Act;
    (2) Developing a certification form for execution by authorized 
employers under Sec.  105.25(a) and receiving authorized employers' 
certifications;
    (3) Receiving the fingerprint submissions and fees from the 
authorized employer; performing a check of state criminal history 
records; if necessary, transmitting the fingerprints to the FBI; 
remitting the FBI fees consistent with established interagency 
agreements; and receiving the results of the FBI check;
    (4) Applying the relevant standards to any CHRI returned by the 
fingerprint check and notifying the authorized employer of the results 
of the application of the standards as required under Sec.  105.23(e);
    (5) Providing to an employee upon his or her request a copy of CHRI 
upon which an adverse determination was predicated; and
    (6) Maintaining, for a period of no less than three years, 
auditable records regarding
    (i) Maintenance and dissemination of CHRI; and
    (ii) The employer's certification.
    (c) If relevant CHRI is lacking disposition information, the SIB or 
responsible agency in a participating State will make reasonable 
efforts to obtain such information to promote the accuracy of the 
record and the integrity of the application of the relevant standards. 
If additional time beyond a State's standard response time is needed to 
find relevant disposition information, the SIB or responsible agency 
may advise the authorized employer that additional research is 
necessary before a final response can be provided. If raised, a 
participating State should take into account the effect of post-
conviction relief.


Sec.  105.27  Miscellaneous provisions.

    (a) Alternate State availability. (1) An authorized employer may 
submit the employee's fingerprints to the SIB of a participating State 
other than the State of employment--provided it obtains the permission 
of the accommodating State--if the authorized employer is prevented 
from submitting an employee's fingerprints because the employee's 
employment is in:
    (i) A State that does not have an applicable Public Law 92-544 
statute authorizing state and national fingerprint-based criminal 
history checks of prospective and current private security officers and 
has elected to opt out; or
    (ii) A participating State that has not yet established a process 
for receiving fingerprints and processing the checks under the 
regulations in this subpart.
    (2) A participating State agreeing to process checks under this 
subsection will discontinue doing so if thereafter the State of the 
employee's employment establishes a process State and national 
fingerprint-based criminal history checks of prospective and current 
private security officers.
    (b) FBI fees for national check. The fee imposed by the FBI to 
perform a fingerprint-based criminal history record check is that 
routinely charged for noncriminal justice fingerprint submissions as 
periodically noticed in the Federal Register.
    (c) Penalties for misuse. (1) In addition to incarceration for a 
period not to exceed two years, one who knowingly and intentionally 
misuses information (including a State's notification) received 
pursuant to the Act may be subject to a fine pursuant to 18 U.S.C. 
3571.
    (2) Consistent with State law, a violation of these regulations may 
also result in the divestiture of ``authorized employer'' status, 
thereby precluding an employer which provides security services from 
submitting fingerprints for a State and national criminal history 
record check.
    (d) Exclusion from coverage. [Reserved.]

    Dated: January 5, 2006.
Alberto R. Gonzales,
Attorney General.
[FR Doc. 06-223 Filed 1-10-06; 8:45 am]
BILLING CODE 4410-02-P