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.

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:

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.