Implementation of the Private Security Officer Employment Authorization Act of 2004

Act authorizes fingerprint-based criminal history check for prospective guards

   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 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.