II 111th CONGRESS 1st Session S. 163 IN THE SENATE OF THE UNITED STATES January 7, 2009 Mr. Ensign (for himself, Mr. Bayh, Mr. Isakson, Mrs. McCaskill, and Mr. Specter) introduced the following bill; which was read twice and 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.

1.

Short title

This Act may be cited as the Child Protection Improvements Act of 2009.

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 program 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.

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:

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 criminal history resource center means the 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— (A)located in a State that does not have a qualified State program; and (B)approved under subsection (f) to receive nationwide background checks from the applicant processing center; (8)the term qualified State program means a program of a State authorized agency that the Attorney General determines is meeting the standards identified in subsection (b)(3) to ensure that a wide range of youth-serving organizations have affordable and timely access to nationwide background checks; (9)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 (10)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 180 days after the date of enactment of the Child Protection Improvements Act of 2009, the Attorney General shall— (1)establish within the Federal Government or through an agreement with a nongovernmental entity an applicant processing center; (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 criminal history resource center; and (3)conduct— (A)an annual assessment of each State authorized agency to determine whether the agency operates a qualified State program, including a review of whether the State authorized agency— (i)has designated a wide range of covered entities as eligible to submit State criminal background check requests and nationwide background check requests to the State authorized agency; (ii)charges a covered entity not more than a total of $36 for a State criminal background check and a nationwide background check; and (iii)returns requests for State criminal background checks and nationwide background checks to a covered entity not later than 10 business days after the date on which the request was made; and (B)in addition to an annual assessment under subparagraph (A), an assessment described in that subparagraph of a State authorized agency if— (i)a State authorized agency that does not have a qualified State program requests such an assessment; or (ii)the Attorney General receives reports from covered entities indicating that a State authorized agency that has a qualified State program no longer meets the standards described in subparagraph (A). (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)handle inquiries from covered entities and inform covered entities about how to request nationwide background checks— (i)for a covered entity located in a State with a qualified State program, by referring the covered entity to the State authorized agency; and (ii)for a covered entity located in a State without a qualified State program, by providing information 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 obtain State criminal background checks, the possible restrictions that apply when making hiring decisions based on criminal history records, 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 applicant processing center; and (ii)a participating entity may elect to obtain a State criminal 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 Federal Bureau of Investigation and, if appropriate, the State authorized agencies; (H)convey to the participating entity that submitted the request for a nationwide background check— (i)a statement indicating whether a criminal history, including a conviction, arrest, or pending arrest or indictment, relating to a covered individual was found; (ii)information relating to the appropriate use of criminal history records when making decisions regarding hiring employees and using volunteers; (iii)if a criminal history is found, a recommendation to the participating entity to consult with the covered individual in order to obtain more information about the individual’s criminal history, and a list of factors to consider in assessing the significance of that criminal history, including— (I)any positive criminal background history; (II)the nature, gravity, and circumstances of any offense indicated in the individual’s criminal history record, including whether the individual was convicted of the offense; (III)the period of time that has elapsed since the date of the offense or end of a period of incarceration or supervised release; (IV)the nature of the position held or sought; and (V)any evidence of rehabilitation; and (iv)instructions that, in evaluating the considerations described in clause (iii), the participating entity should consult the Equal Employment Opportunity Commission Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act and the Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, or any successor to such policy statement or policy guidance issued by the Equal Employment Opportunity Commission; (I)for any request by a participating entity for a nationwide criminal background check for which a criminal history is found, convey to the applicable covered individual the criminal history and an explanation of the right of the covered individual to appeal the accuracy and completeness of that criminal history on the same date that the statement, information, and instructions described in subparagraph (H) are conveyed to the participating entity; (J)coordinate with the Federal Bureau of Investigation and participating State authorized agencies to ensure that background check requests are being completed within the time periods specified in subsection (e); and (K)refer participating entities and covered individuals to the appropriate State agency or the Federal Bureau of Investigation if a criminal history includes incomplete or inaccurate information. (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 under this section— (i)for a nationwide background check, in an amount not to exceed the lesser of— (I)the actual cost to the applicant processing center of conducting a nationwide background check 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)

Criminal history resource center

(1)

Purpose

The purpose of the criminal history resource center is to provide participating entities with reliable and accurate information regarding the interpretation of criminal histories. (2)

Requirements

As part of operating the criminal history resource center, the National Center for Missing and Exploited Children— (A)shall establish, and make available, general guidelines to assist participating entities with analyzing and interpreting criminal history records; (B)shall respond to requests from participating entities for assistance in understanding and interpreting a criminal history, including providing— (i)information on the crime committed and the seriousness of such crime under the law of the applicable State; (ii)information regarding whether multiple charges are part of 1 offense or a series of offenses; and (iii)other information that can assist a participating entity in understanding the gravity, nature, and seriousness of the criminal history and the time lapse since the last offense was committed; and (C)in responding to a request under subparagraph (B)— (i)shall provide general guidance to assist the participating entity in assessing criminal history records; and (ii)may not make any individualized determination relating to whether a covered individual may represent a danger to children or whether the participating entity should hire or refrain from hiring any covered individual. (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 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 applicant processing center 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)

Results

The applicant processing center shall convey the result of a national background check to the participating entity, and if appropriate, convey the criminal history to the covered individual not later than 4 business days after the date that the applicant processing center 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— (A)whether the entity is located in a State that has a qualified State program; and (B)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 to determine the volume of requests for national background checks that can be completed, based on the capacity of the applicant processing center and the Federal Bureau of Investigation, the availability of resources, and the demonstrated need for national background checks 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 2009 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— (A)promptly make a determination regarding the accuracy and completeness of any criminal history record information challenged under paragraph (1)(B); and (B)seek to— (i)investigate any such challenge with relevant departments and agencies of the Federal Government and State and local governments; and (ii)correct any inaccurate or incomplete records. (h)

Authorization of appropriations

(1)

In general

There are authorized to be appropriated to the Attorney General $5,000,000 for fiscal year 2010, to— (A)establish and carry out the duties of the applicant processing center established under this section; (B)establish and carry out the criminal history resource center; and (C)pursue technologies and procedures to streamline and automate processes to enhance cost efficiency. (2)

Criminal history resource center

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 2010 through 2014 to support the criminal history resource center. (3)

Sense of the Senate

It is the sense of the Senate that in fiscal year 2010, 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. (i)

Collection of data and report to Congress

(1)

In general

Not later than 1 year after the date of enactment of the Child Protection Improvements Act of 2009, and annually thereafter, the Attorney General shall prepare and submit to Congress and make available to the public a report on the programs and procedures established under this Act. (2)

Collection of data

(A)

Definition of demographic characteristics

In this paragraph, the term demographic characteristics includes information pertaining to race, color, ancestry, national origin, age, sex and marital status. (B)

Compiling

Beginning 90 days after the date of enactment of the Child Protection Improvements Act of 2009, the Attorney General, with the assistance of the applicant processing center shall compile data regarding— (i)the number and types of participating entities; (ii)the fees charged to participating entities under this section; (iii)the time interval between nationwide background check submissions and responses under this section; (iv)the fiscal impact of this section on State authorized agencies; (v)the number and demographic characteristics of covered individuals submitting a statement described in subsection (c)(3)(C) as part of a request for a nationwide background check; (vi)the number and demographic characteristics of covered individuals determined to have a criminal history; (vii)the number, type (including the identity of the offense and whether the offense was committed while the covered individual was a juvenile or adult), and frequency of offenses, and length of the period between the date of the offense and the date of the nationwide background check for any covered individuals found to have a criminal history under this section; (viii)the procedures available for covered individuals to challenge the accuracy and completeness of criminal history record information under this section; (ix)the number and results of challenges to the accuracy and completeness of criminal history record information under this section; (x)the number and types of corrections of erroneous criminal history record information based on a challenge under this section; and (xi)the number and types of inquiries for assistance on interpreting a criminal history received by the criminal history resource center. (C)

Aggregating data

The Attorney General, with the assistance of the applicant processing center, shall— (i)aggregate the data collected under this paragraph by State and city; and (ii)aggregate the data collected under clauses (v), (vi), and (vii) of subparagraph (B) by race, color, ancestry, national origin, age, sex, and marital status. (D)

Reports

(i)

In general

Not later than 1 year after the date of enactment of the Child Protection Improvements Act of 2009, and annually thereafter, the Attorney General shall prepare and submit to Congress a report concerning the data compiled and aggregated under this paragraph. (ii)

Contents

Each report submitted under clause (i) shall contain— (I)the data compiled and aggregated under this paragraph, organized in such a way as to provide a comprehensive analysis of the programs and procedures established under this section; (II)information regarding and analysis of— (aa)the programs and procedures established under this section; and (bb)the extent such programs and procedures have helped screen individuals who may pose a risk to children; and (III)information regarding and analysis of whether and to what extent the programs and procedures established under this section are having a disparate impact on individuals based on race, color, ancestry, national origin, age, sex, or marital status. (iii)

Recommendations

A report submitted under clause (i) may contain recommendations to Congress on possible legislative improvements to this section. (iv)

Additional information

Upon the request of any member of Congress, the Attorney General shall make available any of the data compiled or aggregated under this paragraph. The Attorney General shall not make available any data that identifies specific individuals. (j)

Limitation on liability

(1)

In general

(A)

Failure to conduct criminal background checks

No participating entity shall be liable in an action for damages solely for failure to conduct a criminal background check on a covered individual. (B)

Failure to take adverse action against covered individual

No participating entity shall be liable in an action for damages solely for a failure to take action adverse to a covered individual upon receiving any notice of criminal history from the applicant processing center under subsection (c)(2)(H). (2)

Reliance

The applicant processing center or a participating entity that reasonably relies on 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. (k)

Privacy of information

(1)

Prohibition on unauthorized disclosure or use of criminal history records

Except for a covered individual, any entity or individual authorized to receive or transmit fingerprints or criminal history records under this Act— (A)shall use the fingerprints, criminal history records, or information in the criminal history records only for the purposes specifically set forth in this Act; (B)shall allow access to the fingerprints, criminal history records, or information in the criminal history records only to those employees of the entity, and only on such terms, as are necessary to fulfill the purposes set forth in this Act; (C)shall not disclose the fingerprints, criminal history records, or information in the criminal history records, except as specifically authorized under this Act; (D)shall keep a written record of each authorized disclosure of the fingerprints, criminal history records, or the information in the criminal history records; and (E)shall maintain adequate security measures to ensure the confidentiality of the fingerprints, the criminal history records, and the information in the criminal history records. (2)

Compliance

(A)

In general

If the applicant processing center is established within the Federal Government, the Attorney General shall promulgate regulations to ensure the enforcement of the nondisclosure requirements under paragraph (1) and to provide for appropriate sanctions in the case of violations of the requirements. (B)

Participating entities and applicant processing center

The participation in any program under this section by a participating entity or a nongovernmental entity that enters into an agreement with the Attorney General to establish an applicant processing center shall be conditioned on the participating entity or nongovernmental entity— (i)establishing procedures to ensure compliance with, and respond to any violations of, paragraph (1); and (ii)maintaining substantial compliance with paragraph (1). (3)

Destruction of records

The applicant processing center shall destroy any fingerprints or criminal history record received under this Act after any transaction based on the fingerprints or criminal history record is completed, and shall not maintain the fingerprints, the criminal history records, or the information in the criminal history record in any form.

.

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 2009 is operating and able to enroll any organization using the Child Safety Pilot Program..