[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5606 Introduced in House (IH)]
110th CONGRESS
2d Session
H. R. 5606
To amend the National Child Protection Act of 1993 to establish a
permanent background check system.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 13, 2008
Mr. Schiff (for himself and Mr. Rogers of Michigan) introduced the
following bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the National Child Protection Act of 1993 to establish a
permanent background check system.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Child Protection Improvements Act of
2008''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) In 2006, 61,200,000 adults (a total of 26.7 percent of
the population) contributed a total of 8,100,000,000 hours of
volunteer service. Of those who volunteer, 27 percent dedicate
their service to education or youth programs, or a total of
16,500,000 adults.
(2) Assuming recent incarceration rates remain unchanged,
an estimated 6.6 percent of individuals in the United States
will serve time in prison for a crime during their lifetime.
The Integrated Automated Fingerprint Identification System of
the Federal Bureau of Investigation maintains fingerprints and
criminal histories on more than 47,000,000 individuals, many of
whom have been arrested or convicted multiple times.
(3) A study released in 2002, found that, of individuals
released from prison in 15 States in 1994, an estimated 67.5
percent were rearrested for a felony or serious misdemeanor
within 3 years. Three-quarters of those new arrests resulted in
convictions or a new prison sentence.
(4) Given the large number of individuals with criminal
records and the vulnerability of the population they work with,
human service organizations that work with children need an
effective and reliable means of obtaining a complete criminal
history in order to determine the suitability of a potential
volunteer or employee.
(5) The large majority of Americans (88 percent) favor
granting youth-serving organizations access to conviction
records for screening volunteers and 59 percent favored
allowing youth-serving organizations to consider arrest records
when screening volunteers. This was the only use for which a
majority of those surveyed favored granting access to arrest
records.
(6) Congress has previously attempted to ensure that States
make Federal Bureau of Investigation criminal history record
checks available to organizations seeking to screen employees
and volunteers who work with children, the elderly, and
individuals with disabilities, through the National Child
Protection Act of 1993 (42 U.S.C. 5119 et seq.) and the
Volunteers for Children Act (Public Law 105-251; 112 Stat.
1885). However, according to a June 2006 report from the
Attorney General, these laws ``did not have the intended impact
of broadening the availability of NCPA checks.''. A 2007 survey
conducted by MENTOR/National Mentoring Partnership found that
only 18 States allowed youth mentoring organizations to access
nationwide Federal Bureau of Investigation background searches.
(7) Even when accessible, the cost of a criminal background
check can be prohibitively expensive, ranging from $5 to $75
for a State fingerprint check, plus the Federal Bureau of
Investigation fee, which ranges between $16 to $24, for a total
of between $21 and $99 for each volunteer or employee.
(8) Delays in processing such checks can also limit their
utility. While the Federal Bureau of Investigation processes
all civil fingerprint requests in less than 24 hours, State
response times vary widely, and can take as long as 42 days.
(9) The Child Safety Pilot Program under section 108 of the
PROTECT Act (42 U.S.C. 5119a note) revealed the importance of
performing fingerprint-based Federal Bureau of Investigation
criminal history record checks. Of 29,000 background checks
performed through the pilot as of March 2007, 6.4 percent of
volunteers were found to have a criminal record of concern,
including very serious offenses such as sexual abuse of minors,
assault, child cruelty, murder, and serious drug offenses.
(10) In an analysis performed on the volunteers screened in
the first 18 months of the Child Safety Pilot Program, it was
found that over 25 percent of the individuals with criminal
records had committed an offense in a State other than the
State in which they were applying to volunteer, meaning that a
State-only search would not have found relevant criminal
results. In addition, even though volunteers knew a background
check was being performed, over 50 percent of the individuals
found to have a criminal record falsely indicated on their
application form that they did not have a criminal record.
(11) The Child Safety Pilot Program also demonstrates that
timely and affordable background checks are possible, as
background checks under that program are completed within 3 to
5 business days at a cost of $18.
SEC. 3. BACKGROUND CHECKS.
The National Child Protection Act of 1993 (42 U.S.C. 5119 et seq.)
is amended--
(1) by redesignating section 5 as section 6; and
(2) by inserting after section 4 the following:
``SEC. 5. PROGRAM FOR NATIONAL CRIMINAL HISTORY BACKGROUND CHECKS FOR
CHILD-SERVING ORGANIZATIONS.
``(a) Definitions.--In this section--
``(1) the term `applicant processing center' means the
applicant processing center established by the Attorney General
under subsection (b)(1);
``(2) the term `child' means an individual who is less than
18 years of age;
``(3) the term `covered entity' means a business or
organization, whether public, private, for-profit, nonprofit,
or voluntary that provides care, care placement, supervision,
treatment, education, training, instruction, or recreation to
children, including a business or organization that licenses,
certifies, or coordinates individuals or organizations to
provide care, care placement, supervision, treatment,
education, training, instruction or recreation to children;
``(4) the term `covered individual' means an individual--
``(A) who has, seeks to have, or may have
unsupervised access to a child served by a covered
entity; and
``(B) who--
``(i) is employed by or volunteers with, or
seeks to be employed by or volunteer with, a
covered entity; or
``(ii) owns or operates, or seeks to own or
operate, a covered entity;
``(5) the term `fitness determination program' means the
fitness determination program established under subsection
(b)(2);
``(6) the term `identification document' has the meaning
given that term in section 1028 of title 18, United States
Code;
``(7) the term `participating entity' means a covered
entity that is approved under subsection (f) to receive
nationwide background checks from the applicant processing
center and to participate in the fitness determination program;
``(8) the term `State' means a State of the United States,
the District of Columbia, the Commonwealth of Puerto Rico,
American Samoa, the Virgin Islands, Guam, the Commonwealth of
the Northern Mariana Islands, the Federated States of
Micronesia, the Republic of the Marshall Islands, and the
Republic of Palau; and
``(9) the term `State authorized agency' means a division
or office of a State designated by that State to report,
receive, or disseminate criminal history information.
``(b) Establishment of Program.--Not later than 90 days after the
date of enactment of the Child Protection Improvements Act of 2008, the
Attorney General shall
``(1) establish within the Federal Government or through an
agreement with a nonprofit entity an applicant processing
center; and
``(2) enter into an agreement with the National Center for
Missing and Exploited Children, under which the National Center
for Missing and Exploited Children shall establish a fitness
determination program.
``(c) Applicant Processing Center.--
``(1) Purpose.--The purpose of the applicant processing
center is to streamline the process of obtaining nationwide
background checks, provide effective customer service, and
facilitate widespread access to nationwide background checks by
participating entities.
``(2) Duties.--The applicant processing center shall--
``(A) provide information to covered entities on
the requirements to become a participating entity;
``(B) provide participating entities with access to
nationwide background checks on covered individuals;
``(C) receive paper and electronic requests for
nationwide background checks on covered individuals
from participating entities;
``(D) serve as a national resource center to
provide guidance and assistance to participating
entities on how to submit requests for nationwide
background checks, how to interpret criminal history
records, how to obtain State criminal background
checks, and other related information;
``(E) to the extent practicable, negotiate an
agreement with each State authorized agency under
which--
``(i) that State authorized agency shall
conduct a State criminal background check
within the time periods specified in subsection
(e) in response to a request from the applicant
processing center and provide criminal history
records to the National Center for Missing and
Exploited Children; and
``(ii) a participating entity may elect to
obtain a State background check, in addition to
a nationwide background check, through 1
unified request to the applicant processing
center;
``(F) convert all paper fingerprint cards into an
electronic form and securely transmit all fingerprints
electronically to the national criminal history
background check system and, if appropriate, the State
authorized agencies;
``(G) collect a fee to conduct the nationwide
background check, and, if appropriate, a State criminal
background check, and remit fees to the National Center
for Missing and Exploited Children, the Federal Bureau
of Investigation, and the State authorized agencies, as
appropriate;
``(H) convey the results of the fitness
determination to the participating entity that
submitted the request for a nationwide background
check; and
``(I) coordinate with the Federal Bureau of
Investigation, participating State authorized agencies,
and the National Center for Missing and Exploited
Children to ensure that background check requests are
being completed within the time periods specified in
subsection (e).
``(3) Requests.--A request for a nationwide background
check by a participating entity shall include--
``(A) the fingerprints of the covered individual,
in paper or electronic form;
``(B) a photocopy of a valid identification
document; and
``(C) a statement completed and signed by the
covered individual that--
``(i) sets out the covered individual's
name, address, and date of birth, as those
items of information appear on a valid
identification document;
``(ii) states whether the covered
individual has a criminal record, and, if so,
provides the particulars of such criminal
record;
``(iii) notifies the covered individual
that the Attorney General and, if appropriate,
a State authorized agency may perform a
criminal history background check and that the
signature of the covered individual on the
statement constitutes an acknowledgment that
such a check may be conducted;
``(iv) notifies the covered individual that
prior to and after the completion of the
background check, the participating entity may
choose to deny the covered individual access to
children; and
``(v) notifies the covered individual of
the right of the covered individual to correct
an erroneous record of the Attorney General
and, if appropriate, the State authorized
agency.
``(4) Fees.--
``(A) In general.--The applicant processing center
may collect a fee to defray the costs of carrying out
its duties and the duties of the National Center for
Missing and Exploited Children under this section--
``(i) for a nationwide background check and
fitness determination, in an amount not to
exceed the lesser of--
``(I) the actual cost to the
applicant processing center and the
National Center for Missing and
Exploited Children of conducting a
nationwide background check and fitness
determination under this section; or
``(II)(aa) $25 for a participating
entity that is a nonprofit entity; or
``(bb) $40 for any other
participating entity; and
``(ii) for a State criminal background
check described in paragraph (2)(E), in the
amount specified in the agreement with the
applicable State authorized agency, not to
exceed $18.
``(B) Reduced fees.--In determining the amount of
the fees to be collected under subparagraph (A), the
applicant processing center--
``(i) shall, to the extent possible,
discount such fees for participating entities
that are nonprofit entities; and
``(ii) may use fees paid by participating
entities that are not nonprofit entities to
reduce the fees to be paid by participating
entities that are nonprofit entities.
``(C) Prohibition on fees.--
``(i) In general.--A participating entity
may not charge another entity or individual a
surcharge to access a background check
conducted under this section.
``(ii) Violation.--The Attorney General
shall bar any participating entity that the
Attorney General determines violated clause (i)
from submitting background checks under this
section.
``(d) Fitness Determination Program.--
``(1) Purpose.--The purpose of the fitness determination
program is to provide participating entities with reliable and
accurate information regarding whether a covered individual has
been convicted of, or is under pending arrest or indictment
for, a crime that bears upon the fitness of the covered
individual to have responsibility for the safety and well-being
of the children in their care.
``(2) Requirements of fitness determination program.--As
part of operating the fitness determination program, the
National Center for Missing and Exploited Children shall--
``(A) establish procedures to securely receive
criminal background records from the Federal Bureau of
Investigation and, if appropriate, State authorized
agencies;
``(B) make determinations regarding whether the
criminal history record information received in
response to a criminal history background check
conducted under this section indicates that the covered
individual has a criminal history record that may
render the covered individual unfit to provide care to
children, based on the criteria described in paragraph
(3);
``(C) convey a fitness determination to the
applicant processing center;
``(D) specify the source of the criminal history
information upon which a fitness determination is
based; and
``(E) work with the applicant processing center and
the Federal Bureau of Investigation to develop
procedures and processes to ensure that criminal
history background check requests are being completed
within the time periods specified in subsection (e).
``(3) Criteria.--
``(A) In general.--Subject to subparagraph (B), the
fitness determination program shall use the criteria
relating to when criminal history record information
indicates that an individual has a criminal history
record that may render the individual unfit to provide
care to children that were established for the Child
Safety Pilot Program under section 108(a)(3) of the
PROTECT Act (42 U.S.C. 5119a note).
``(B) Review.--The Attorney General and the
National Center for Missing and Exploited Children, in
coordination with national organizations representing a
range of covered entities, shall review the criteria
described in subparagraph (A) and make any changes
needed to use such criteria in the fitness
determination program.
``(e) Timing.--
``(1) In general.--Criminal background checks shall be
completed not later than 10 business days after the date that a
request for a national background check is received by the
applicant processing center. The applicant processing center
shall work with the National Center for Missing and Exploited
Children and the Federal Bureau of Investigation to ensure that
the time limits under this subsection are being achieved.
``(2) Application processing.--The applicant processing
center shall electronically submit a national background check
request to the national criminal history background check
system and, if appropriate, the participating State authorized
agency not later than 3 business days after the date that a
request for a national background check is received by the
applicant processing center.
``(3) Conduct of background checks.--The Federal Bureau of
Investigation and, if appropriate, a State authorized agency
shall provide criminal history records information to the
National Center for Missing and Exploited Children not later
than 3 business days after the date that the Federal Bureau of
Investigation or State authorized agency, as the case may be,
receives a request for a nationwide background check from the
applicant processing center.
``(4) Fitness determinations.--The National Center for
Missing and Exploited Children shall convey a fitness
determination to a participating entity and the applicant
processing center not later than 4 business days after the date
that the National Center for Missing and Exploited Children has
received criminal history records from the Federal Bureau of
Investigation and, if appropriate, each applicable State
authorized agency.
``(f) Participation in Program.--
``(1) In general.--The applicant processing center shall
determine whether an entity is a covered entity and whether
that covered entity should be approved as a participating
entity, based on the consultation conducted under paragraph
(2).
``(2) Consultation.--In determining how many covered
entities to approve as participating entities, the applicant
processing center shall consult quarterly with the Federal
Bureau of Investigation and the National Center for Missing and
Exploited Children to determine the volume of requests for
fitness determinations that can be completed, based on the
capacity of the applicant processing center and the fitness
determination program, the availability of resources, and the
demonstrated need for such determinations in order to protect
children.
``(3) Preference for nonprofit organizations.--In
determining whether a covered entity should be approved as a
participating entity under paragraph (1), the applicant
processing center shall give preference to any organization
participating in the Child Safety Pilot Program under section
108(a)(3) of the PROTECT Act (42 U.S.C. 5119a note) on the date
of enactment of the Child Protection Improvements Act of 2008
and to any other nonprofit organizations.
``(g) Rights of Covered Individuals.--
``(1) In general.--A covered individual who is the subject
of a nationwide background check under this section may contact
the Federal Bureau of Investigation and, if appropriate, a
State authorized agency to--
``(A) request that the full criminal history report
of that covered individual be provided to that covered
individual or the applicable participating entity not
later than 10 business days after the date of that
request; and
``(B) challenge the accuracy and completeness of
the criminal history record information in the criminal
history report.
``(2) Resolution of challenges.--The Federal Bureau of
Investigation and, if appropriate, a State authorized agency
shall promptly make a determination regarding the accuracy and
completeness of any criminal history record information
challenged under paragraph (1)(B).
``(h) Authorization of Appropriations.--
``(1) In general.--There are authorized to be appropriated
to the Attorney General $5,000,000 for fiscal year 2008, to--
``(A) establish and carry out the duties of the
applicant processing center established under this
section;
``(B) establish and carry out the fitness
determination program; and
``(C) pursue technologies and procedures to
streamline and automate processes to enhance cost
efficiency.
``(2) Fitness determinations.--There are authorized to be
appropriated to the Attorney General to carry out the agreement
under this section with the National Center for Missing and
Exploited Children $1,000,000 for each of fiscal years 2009
through 2013 to support the fitness determination program and
so that fees for nonprofit organizations under that program are
as low as possible.
``(3) Sense of congress.--It is the sense of Congress that
in fiscal year 2009, and each fiscal year thereafter, the fees
collected by the applicant processing center should be
sufficient to carry out the duties of the applicant processing
center under this section and to help support the fitness
determination program.
``(i) Report to Congress.--The Attorney General shall, on an annual
basis, submit to Congress a report on the participating entities, the
number of covered individuals submitting applications under this
section, and the data on the number and types of fitness determinations
issued under this section.
``(j) Limitation on Liability.--
``(1) In general.--A participating entity shall not be
liable in an action for damages solely for failure to conduct a
criminal background check on a covered individual, nor shall a
State or political subdivision thereof nor any agency, officer,
or employee thereof, be liable in an action for damages for the
failure of a participating entity (other than itself) to take
action adverse to a covered individual who was the subject of a
background check.
``(2) Reliance.--The applicant processing center or a
participating entity that reasonably relies on a fitness
determination or criminal history record information received
in response to a background check under this section shall not
be liable in an action for damages based on the inaccuracy or
incompleteness of that information.
``(3) National center for missing and exploited children.--
``(A) In general.--Except as provided in
subparagraphs (B) and (C), the National Center for
Missing and Exploited Children, including a director,
officer, employee, or agent of the National Center for
Missing and Exploited Children, shall not be liable in
an action for damages relating to the performance of
the responsibilities and functions of the National
Center for Missing and Exploited Children under this
section.
``(B) Intentional, reckless, or other misconduct.--
Subparagraph (A) shall not apply in an action if the
National Center for Missing and Exploited Children, or
a director, officer, employee, or agent of the National
Center for Missing and Exploited Children, engaged in
intentional misconduct or acted, or failed to act, with
actual malice, with reckless disregard to a substantial
risk of causing injury without legal justification, or
for a purpose unrelated to the performance of
responsibilities or functions under this section.
``(C) Ordinary business activities.--Subparagraph
(A) shall not apply to an act or omission relating to
an ordinary business activity, such as an activity
involving general administration or operations, the use
of motor vehicles, or personnel management.''.
SEC. 4. EXTENSION OF CHILD SAFETY PILOT.
Section 108(a)(3)(A) of the PROTECT Act (42 U.S.C. 5119a note) is
amended--
(1) by striking ``60-month''; and
(2) by adding at the end the following: ``The Child Safety
Pilot Program under this paragraph shall terminate on the date
that the program for national criminal history background
checks for child-serving organizations established under the
Child Protection Improvements Act of 2008 is operating and able
to enroll any organization using the Child Safety Pilot
Program.''.
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