34 U.S.C. § 41105 — Criminal background checks for appli-

Page 637 TITLE 34—CRIME CONTROL AND LAW ENFORCEMENT § 41105 Editorial Notes CODIFICATION Section was formerly classified as a note under sec- tion 509 of Title 28, Judiciary and Judicial Procedure, prior to editorial reclassification and renumbering as this section. Section is from the Department of Justice Appropria- tions Act, 1990, and also from the Departments of Com- merce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1990. § 41104. Processing of fingerprint identification records and name checks by FBI For fiscal year 1991 and hereafter the Director of the Federal Bureau of Investigation may es- tablish and collect fees to process fingerprint identification records and name checks for non- criminal justice, non-law enforcement employ- ment and licensing purposes and for certain em- ployees of private sector contractors with classi- fied Government contracts, and notwithstanding the provisions of section 3302 of title 31, credit such fees to this appropriation to be used for salaries and other expenses incurred in pro- viding these services, and that the Director of the Federal Bureau of Investigation may estab- lish such fees at a level to include an additional amount to establish a fund to remain available until expended to defray expenses for the auto- mation of fingerprint identification and crimi- nal justice information services and associated costs. (Pub. L. 101–515, title II, Nov. 5, 1990, 104 Stat. 2112; Pub. L. 104–91, title I, § 101(a), Jan. 6, 1996, 110 Stat. 11, amended Pub. L. 104–99, title II, § 211, Jan. 26, 1996, 110 Stat. 37.) Editorial Notes CODIFICATION Section was formerly classified as a note under sec- tion 534 of Title 28, Judiciary and Judicial Procedure, prior to editorial reclassification and renumbering as this section. Section is from the Department of Justice Appropria- tions Act, 1991, and also from the Departments of Com- merce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1991. Amendment by Pub. L. 104–91 is based on section 113 of H.R. 2076, One Hundred Fourth Congress, as passed by the House of Representatives on Dec. 6, 1995, which was enacted into law by Pub. L. 104–91. AMENDMENTS 1996—Pub. L. 104–91, as amended by Pub. L. 104–99, which directed the amendment of this section by in- serting ‘‘and criminal justice information’’ after ‘‘for the automation of finger-print identification’’, was exe- cuted by making the insertion after ‘‘for the automa- tion of fingerprint identification’’ to reflect the prob- able intent of Congress. § 41105. Criminal background checks for appli- cants for employment in nursing facilities and home health care agencies (a)(1) A nursing facility or home health care agency may submit a request to the Attorney General to conduct a search and exchange of records described in subsection (b) regarding an applicant for employment if the employment po- sition is involved in direct patient care. (2) A nursing facility or home health care agency requesting a search and exchange of records under this section shall submit to the Attorney General through the appropriate State agency or agency designated by the Attorney General a copy of an employment applicant’s fingerprints, a statement signed by the appli- cant authorizing the nursing facility or home health care agency to request the search and ex- change of records, and any other identification information not more than 7 days (excluding Saturdays, Sundays, and legal public holidays under section 6103(a) of title 5) after acquiring the fingerprints, signed statement, and informa- tion. (b) Pursuant to any submission that complies with the requirements of subsection (a), the At- torney General shall search the records of the Criminal Justice Information Services Division of the Federal Bureau of Investigation for any criminal history records corresponding to the fingerprints or other identification information submitted. The Attorney General shall provide any corresponding information resulting from the search to the appropriate State agency or agency designated by the Attorney General to receive such information. (c) Information regarding an applicant for em- ployment in a nursing facility or home health care agency obtained pursuant to this section may be used only by the facility or agency re- questing the information and only for the pur- pose of determining the suitability of the appli- cant for employment by the facility or agency in a position involved in direct patient care. (d) The Attorney General may charge a rea- sonable fee, not to exceed $50 per request, to any nursing facility or home health care agency re- questing a search and exchange of records pursu- ant to this section. (e) Not later than 2 years after October 21, 1998, the Attorney General shall submit a report to Congress on the number of requests for searches and exchanges of records made under this section by nursing facilities and home health care agencies and the disposition of such requests. (f) Whoever knowingly uses any information obtained pursuant to this section for a purpose other than as authorized under subsection (c) shall be fined in accordance with title 18, impris- oned for not more than 2 years, or both. (g) A nursing facility or home health care agency that, in denying employment for an ap- plicant, reasonably relies upon information pro- vided by the Attorney General pursuant to this section shall not be liable in any action brought by the applicant based on the employment de- termination resulting from the incompleteness or inaccuracy of the information. (h) The Attorney General may promulgate such regulations as are necessary to carry out this section, including regulations regarding the security, confidentiality, accuracy, use, destruc- tion, and dissemination of information, audits and recordkeeping, the imposition of fees, and any necessary modifications to the definitions contained in subsection (i). (i) In this section: (1) The term ‘‘home health care agency’’ means an agency that provides home health care or personal care services on a visiting basis in a place of residence. Page 638 TITLE 34—CRIME CONTROL AND LAW ENFORCEMENT § 41106 (2) The term ‘‘nursing facility’’ means a fa- cility or institution (or a distinct part of an institution) that is primarily engaged in pro- viding to residents of the facility or institu- tion nursing care, including skilled nursing care, and related services for individuals who require medical or nursing care. (j) This section shall apply without fiscal year limitation. (Pub. L. 105–277, div. A, § 101(b) [title I, § 124], Oct. 21, 1998, 112 Stat. 2681–50, 2681–73.) Editorial Notes CODIFICATION Section was formerly classified as a note under sec- tion 534 of Title 28, Judiciary and Judicial Procedure, prior to editorial reclassification and renumbering as this section. § 41106. Reviews of criminal records of appli- cants for private security officer employment (a) Short title This section may be cited as the ‘‘Private Se- curity Officer Employment Authorization Act of 2004’’. (b) Findings Congress finds that— (1) employment of private security officers in the United States is growing rapidly; (2) private security officers function as an adjunct to, but not a replacement for, public law enforcement by helping to reduce and pre- vent crime; (3) such private security officers protect in- dividuals, property, and proprietary informa- tion, and provide protection to such diverse operations as banks, hospitals, research and development centers, manufacturing facilities, defense and aerospace contractors, high tech- nology businesses, nuclear power plants, chemical companies, oil and gas refineries, airports, communication facilities and oper- ations, office complexes, schools, residential properties, apartment complexes, gated com- munities, and others; (4) sworn law enforcement officers provide significant services to the citizens of the United States in its public areas, and are sup- plemented by private security officers; (5) the threat of additional terrorist attacks requires cooperation between public and pri- vate sectors and demands professional, reli- able, and responsible security officers for the protection of people, facilities, and institu- tions; (6) the trend in the Nation toward growth in such security services has accelerated rapidly; (7) such growth makes available more public sector law enforcement officers to combat se- rious and violent crimes, including terrorism; (8) the American public deserves the employ- ment of qualified, well-trained private secu- rity personnel as an adjunct to sworn law en- forcement officers; and (9) private security officers and applicants for private security officer positions should be thoroughly screened and trained. (c) Definitions In this section: (1) Employee The term ‘‘employee’’ includes both a cur- rent employee and an applicant for employ- ment as a private security officer. (2) Authorized employer The term ‘‘authorized employer’’ means any person that— (A) employs private security officers; and (B) is authorized by regulations promul- gated by the Attorney General to request a criminal history record information search of an employee through a State identifica- tion bureau pursuant to this section. (3) Private security officer The term ‘‘private security officer’’— (A) means an individual other than an em- ployee of a Federal, State, or local govern- ment, whose primary duty is to perform se- curity services, full or part time, for consid- eration, whether armed or unarmed and in uniform or plain clothes (except for services excluded from coverage under this section if the Attorney General determines by regula- tion that such exclusion would serve the public interest); but (B) does not include— (i) employees whose duties are primarily internal audit or credit functions; (ii) employees of electronic security sys- tem companies acting as technicians or monitors; or (iii) employees whose duties primarily involve the secure movement of prisoners. (4) Security services The term ‘‘security services’’ means acts to protect people or property as defined by regu- lations promulgated by the Attorney General. (5) State identification bureau The term ‘‘State identification bureau’’ means the State entity designated by the At- torney General for the submission and receipt of criminal history record information. (d) Criminal history record information search (1) In general (A) Submission of fingerprints An authorized employer may submit to the State identification bureau of a partici- pating State, fingerprints or other means of positive identification, as determined by the Attorney General, of an employee of such employer for purposes of a criminal history record information search pursuant to this section. (B) Employee rights (i) Permission An authorized employer shall obtain written consent from an employee to sub- mit to the State identification bureau of the participating State the request to search the criminal history record infor- mation of the employee under this section. (ii) Access An authorized employer shall provide to the employee confidential access to any information relating to the employee re-