[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2756 Committee Discharged Senate (CDS)]







110th CONGRESS
  2d Session
                                S. 2756

   To amend the National Child Protection Act of 1993 to establish a 
                   permanent background check system.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 13, 2008

  Mr. Biden (for himself, Mr. Hatch, and Mr. Specter) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Health, Education, Labor, and Pensions

               April 1 (legislative day, March 13), 2008

    Committee discharged; 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 indicate 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) purse 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 the senate.--It is the sense of the Senate 
        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.''.
                                 <all>