II 

111TH CONGRESS 

1ST SESSION S. 1365 

To amend the National Child Protection Act of 1993 to establish a permanent 

background check system. 

IN THE SENATE OF THE UNITED STATES 

JUNE 25, 2009 

Mr. SCHUMER (for himself, Mr. ENSIGN, Mr. BAYH, Mr. VITTER, Mr. SPECTER, Mr. ISAKSON, Mr. WHITEHOUSE, and Mr. KAUFMAN) 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 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Child Protection Im5 provements Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) In 2006, 61,200,000 adults (a total of 26.7 

9 percent of the adult population) contributed a total 

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1 of 8,100,000,000 hours of volunteer service. Of 

2 those who volunteer, 27 percent, or a total of 

3 16,500,000 adults, dedicate their service to edu4 cation or youth programs. 

5 (2) Assuming recent incarceration rates remain 

6 unchanged, an estimated 6.6 percent of individuals 

7 in the United States will serve time in prison for a 

8 crime during their lifetime. The Integrated Auto9 mated Fingerprint Identification System of the Fed10 eral Bureau of Investigation maintains fingerprints 

11 and criminal history records on more than 

12 47,000,000 individuals, many of whom have been ar13 rested or convicted multiple times. 

14 (3) A study released in 2002, found that, of in15 dividuals released from prison in 15 States in 1994, 

16 an estimated 67.5 percent were rearrested for a fel17 ony or serious misdemeanor within 3 years. Three18 quarters of those new arrests resulted in convictions 

19 or a new prison sentence. 

20 (4) Given the large number of individuals with 

21 criminal history records, and the vulnerability of the 

22 population with whom human service organizations 

23 work, those organizations that work with children 

24 need an effective and reliable means of obtaining rel25 evant information about criminal histories in order 

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1 to determine the suitability of a potential volunteer 

2 or employee. 

3 (5) The large majority of Americans (88 per4 cent) favor granting youth-serving organizations ac5 cess to conviction records for screening volunteers 

6 and 59 percent favor allowing youth-serving organi7 zations to consider arrest records when screening 

8 volunteers. This was the only use for which a major9 ity of those surveyed favor granting access to arrest 

10 records. 

11 (6) Congress has previously attempted to en12 sure that States make Federal Bureau of Investiga13 tion criminal history background checks available to 

14 organizations seeking to screen employees and volun15 teers who work with children, the elderly, and indi16 viduals with disabilities, through the National Child 

17 Protection Act of 1993 (42 U.S.C. 5119 et seq.) and 

18 the Volunteers for Children Act (Public Law 105– 

19 251; 112 Stat. 1885). However, according to a June 

20 2006 report from the Attorney General, these laws 

21 ‘‘did not have the intended impact of broadening the 

22 availability of NCPA checks.’’ A 2007 survey con23 ducted by MENTOR/National Mentoring Partner24 ship found that only 18 States allowed youth menmstockstill on PROD1PC66 with BILLS

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1 toring organizations to access nationwide Federal 

2 Bureau of Investigation background searches. 

3 (7) Even when accessible, the cost of a criminal 

4 history background check can be prohibitively expen5 sive, ranging from $5 to $75 for a State fingerprint 

6 check, plus the Federal Bureau of Investigation fee, 

7 which ranges between $16 to $24, for a total of be8 tween $21 and $99 for each volunteer or employee. 

9 (8) Delays in processing such checks can also 

10 limit their utility. While the Federal Bureau of In11 vestigation processes all civil fingerprint requests in 

12 less than 24 hours, State response times vary widely, 

13 and can take as long as 42 days. 

14 (9) The Child Safety Pilot Program under sec15 tion 108 of the PROTECT Act (42 U.S.C. 5119a 

16 note) revealed the importance of performing finger17 print-based Federal Bureau of Investigation criminal 

18 history background checks. Of 68,000 background 

19 checks performed through the pilot program as of 

20 May 2009, 6 percent of volunteer applicants were 

21 found to have a criminal history of concern, includ22 ing very serious offenses such as sexual abuse of mi23 nors, assault, child cruelty, murder, and serious 

24 drug offenses. 

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1 (10) In an analysis performed on the volunteers 

2 screened in the first 18 months of the Child Safety 

3 Pilot Program, it was found that over 41 percent of 

4 the individuals with criminal histories had com5 mitted an offense in a State other than the State in 

6 which they were applying to volunteer, meaning that 

7 a State-only search would not have found relevant 

8 criminal results. In addition, even though volunteers 

9 knew a background check was being performed, over 

10 50 percent of the individuals found to have a crimi11 nal history falsely indicated on their application 

12 form that they did not have a criminal history. 

13 (11) The Child Safety Pilot Program also dem14 onstrates that timely and affordable background 

15 checks are possible. 

16 SEC. 3. BACKGROUND CHECKS. 

17 The National Child Protection Act of 1993 (42 

18 U.S.C. 5119 et seq.) is amended— 

19 (1) by redesignating section 5 as section 6; and 

20 (2) by inserting after section 4 the following: 

21 ‘‘SEC. 5. PROGRAM FOR NATIONAL CRIMINAL HISTORY 

22 BACKGROUND CHECKS FOR CHILD-SERVING 

23 ORGANIZATIONS. 

24 ‘‘(a) DEFINITIONS.—In this section— 

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1 ‘‘(1) the term ‘background check designee’ 

2 means the entity or organization, if any, designated 

3 by or entering an agreement with the Attorney Gen4 eral under subsection (b)(3)(A) to carry out or assist 

5 in carrying out the duties described in subsection 

6 (c); 

7 ‘‘(2) the term ‘child’ means an individual who 

8 is less than 18 years of age; 

9 ‘‘(3) the term ‘covered entity’ means a business 

10 or organization, whether public, private, for-profit, 

11 nonprofit, or voluntary that provides care, care 

12 placement, supervision, treatment, education, train13 ing, instruction, or recreation to children, including 

14 a business or organization that licenses, certifies, or 

15 coordinates individuals or organizations to provide 

16 care, care placement, supervision, treatment, edu17 cation, training, instruction, or recreation to chil18 dren; 

19 ‘‘(4) the term ‘covered individual’ means an in20 dividual— 

21 ‘‘(A) who has, seeks to have, or may have 

22 unsupervised access to a child served by a cov23 ered entity; and 

24 ‘‘(B) who— 

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1 ‘‘(i) is employed by or volunteers with, 

2 or seeks to be employed by or volunteer 

3 with, a covered entity; or 

4 ‘‘(ii) owns or operates, or seeks to 

5 own or operate, a covered entity; 

6 ‘‘(5) the term ‘criminal history review designee’ 

7 means the entity or organization, if any, designated 

8 by or entering an agreement with the Attorney Gen9 eral under subsection (b)(3)(B) to carry out or as10 sist in carrying out the criminal history review pro11 gram; 

12 ‘‘(6) the term ‘criminal history review program’ 

13 means the program established under subsection 

14 (b)(1)(B); 

15 ‘‘(7) the term ‘identification document’ has the 

16 meaning given that term in section 1028 of title 18, 

17 United States Code; 

18 ‘‘(8) the term ‘participating entity’ means a 

19 covered entity that is— 

20 ‘‘(A) located in a State that does not have 

21 a qualified State program; and 

22 ‘‘(B) approved under subsection (f) to re23 ceive nationwide background checks in accord24 ance with subsection (c) and participate in the 

25 criminal history review program; 

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1 ‘‘(9) the term ‘qualified State program’ means 

2 a program of a State authorized agency that the At3 torney General determines is meeting the standards 

4 identified in subsection (b)(2) to ensure that a wide 

5 range of youth-serving organizations have affordable 

6 and timely access to nationwide background checks; 

7 ‘‘(10) the term ‘open arrest’ means an arrest 

8 relating to which charges may still be brought, tak9 ing into consideration the applicable statute of limi10 tations; 

11 ‘‘(11) the term ‘pending charge’ means a crimi12 nal charge that has not been resolved through con13 viction, acquittal, dismissal, plea bargain, or any 

14 other means; 

15 ‘‘(12) the term ‘State’ means a State of the 

16 United States, the District of Columbia, the Com17 monwealth of Puerto Rico, American Samoa, the 

18 Virgin Islands, Guam, the Commonwealth of the 

19 Northern Mariana Islands, the Federated States of 

20 Micronesia, the Republic of the Marshall Islands, 

21 and the Republic of Palau; and 

22 ‘‘(13) the term ‘State authorized agency’ means 

23 a division or office of a State designated by that 

24 State to report, receive, or disseminate criminal his25 tory information. 

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1 ‘‘(b) ESTABLISHMENT OF PROGRAM.— 

2 ‘‘(1) IN GENERAL.—Not later than 180 days 

3 after the date of enactment of the Child Protection 

4 Improvements Act of 2009, the Attorney General 

5 shall— 

6 ‘‘(A) establish policies and procedures to 

7 carry out the duties described in subsection (c); 

8 and 

9 ‘‘(B) establish a criminal history review 

10 program in accordance with subsection (d). 

11 ‘‘(2) ASSESSMENTS.—The Attorney General 

12 shall conduct— 

13 ‘‘(A) an annual assessment of each State 

14 authorized agency to determine whether the 

15 agency operates a qualified State program, in16 cluding a review of whether the State author17 ized agency— 

18 ‘‘(i) has designated a wide range of 

19 covered entities as eligible to submit State 

20 criminal background check requests and 

21 nationwide background check requests to 

22 the State authorized agency; 

23 ‘‘(ii) charges a covered entity not 

24 more than a total of $25 for a State crimi25 nal background check and the fee charged 

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1 by the Federal Bureau of Investigation for 

2 a nationwide background check; and 

3 ‘‘(iii) returns requests for State crimi4 nal background checks and nationwide 

5 background checks to a covered entity not 

6 later than 10 business days after the date 

7 on which the request was made; and 

8 ‘‘(B) in addition to an annual assessment 

9 under subparagraph (A), an assessment de10 scribed in that subparagraph of a State author11 ized agency if— 

12 ‘‘(i) a State authorized agency that 

13 does not have a qualified State program 

14 requests such an assessment; or 

15 ‘‘(ii) the Attorney General receives re16 ports from covered entities indicating that 

17 a State authorized agency that has a quali18 fied State program no longer meets the 

19 standards described in subparagraph (A). 

20 ‘‘(3) DESIGNEES.—The Attorney General 

21 may— 

22 ‘‘(A) designate or enter into an agreement 

23 with an entity or organization that has an es24 tablished history of serving the interests of chilmstockstill on PROD1PC66 with BILLS

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1 dren to carry out or assist in carrying out the 

2 duties described in subsection (c); and 

3 ‘‘(B) designate or enter into an agreement 

4 with 1 or more Federal, State, or local govern5 ment agencies to carry out or assist in carrying 

6 out the criminal history review program. 

7 ‘‘(c) ACCESS TO NATIONWIDE BACKGROUND

8 CHECKS.— 

9 ‘‘(1) PURPOSE.—The purpose of this section is 

10 to streamline the process of obtaining nationwide 

11 background checks, provide effective customer serv12 ice, and facilitate widespread access to nationwide 

13 background checks by participating entities. 

14 ‘‘(2) DUTIES.—The Attorney General or the 

15 background check designee shall— 

16 ‘‘(A) handle inquiries from covered entities 

17 and inform covered entities about how to re18 quest nationwide background checks— 

19 ‘‘(i) for a covered entity located in a 

20 State with a qualified State program, by 

21 referring the covered entity to the State 

22 authorized agency; and 

23 ‘‘(ii) for a covered entity located in a 

24 State without a qualified State program, 

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1 by providing information on the require2 ments to become a participating entity; 

3 ‘‘(B) provide participating entities with ac4 cess to nationwide background checks on cov5 ered individuals in accordance with this section; 

6 ‘‘(C) receive paper and electronic requests 

7 for nationwide background checks on covered 

8 individuals from participating entities; 

9 ‘‘(D) to the extent practicable, negotiate 

10 an agreement with each State authorized agen11 cy under which— 

12 ‘‘(i) that State authorized agency shall 

13 conduct a State criminal background check 

14 within the time periods specified in sub15 section (e) in response to a request from 

16 the Attorney General or the background 

17 check designee and provide criminal his18 tory records to the Attorney General or the 

19 criminal history review designee; and 

20 ‘‘(ii) a participating entity may elect 

21 to obtain a State criminal background 

22 check, in addition to a nationwide back23 ground check, through 1 unified request to 

24 the Attorney General or the background 

25 check designee; 

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1 ‘‘(E) convert all paper fingerprint cards 

2 into an electronic form and securely transmit 

3 all fingerprints electronically to the national 

4 criminal history background check system and, 

5 if appropriate, the State authorized agencies; 

6 ‘‘(F) collect a fee to conduct the nation7 wide background check, and, if appropriate, a 

8 State criminal background check, and remit 

9 fees to the Attorney General or the criminal 

10 history review designee, the Federal Bureau of 

11 Investigation, and, if appropriate, the State au12 thorized agencies; and 

13 ‘‘(G) coordinate with the Federal Bureau 

14 of Investigation, participating State authorized 

15 agencies, and the Attorney General or the 

16 criminal history review designee to ensure that 

17 background check requests are being completed 

18 within the time periods specified in subsection 

19 (e). 

20 ‘‘(3) REQUESTS.—A request for a nationwide 

21 background check by a participating entity shall in22 clude— 

23 ‘‘(A) the fingerprints of the covered indi24 vidual, in paper or electronic form; 

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1 ‘‘(B) a photocopy of a valid identification 

2 document; and 

3 ‘‘(C) a statement completed and signed by 

4 the covered individual that— 

5 ‘‘(i) sets out the covered individual’s 

6 name, address, and date of birth, as those 

7 items of information appear on a valid 

8 identification document; 

9 ‘‘(ii) notifies the covered individual 

10 that the Attorney General and, if appro11 priate, a State authorized agency may per12 form a criminal history background check 

13 and that the signature of the covered indi14 vidual on the statement constitutes an ac15 knowledgment that such a check may be 

16 conducted; 

17 ‘‘(iii) notifies the covered individual 

18 that the signature of the covered individual 

19 constitutes consent to participate in the 

20 criminal history review program, under 

21 which the participating entity may be in22 formed if the criminal history records of 

23 the covered individual reveal a criminal 

24 history that warrants special concern or 

25 further inquiry; 

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1 ‘‘(iv) notifies the covered individual 

2 that the covered individual shall be pro3 vided with a copy of the criminal history 

4 records of the covered individual and shall 

5 have 10 business days to review the 

6 records, challenge the accuracy or com7 pleteness of any information in the 

8 records, or withdraw consent to participate 

9 in the criminal history review program be10 fore any information about the criminal 

11 history of the covered individual is pro12 vided to the participating entity; and 

13 ‘‘(v) notifies the covered individual 

14 that prior to and after the completion of 

15 the background check, the participating 

16 entity may choose to deny the covered indi17 vidual access to children. 

18 ‘‘(4) FEES.— 

19 ‘‘(A) IN GENERAL.—The Attorney General 

20 or the background check designee may collect a 

21 fee to defray the costs of carrying out the du22 ties described in this subsection, the costs of 

23 the Federal Bureau of Investigation and State 

24 and local agencies in resolving the accuracy of 

25 criminal history records of covered individuals, 

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1 and the duties of the criminal history review 

2 designee under this section— 

3 ‘‘(i) for a nationwide background 

4 check and criminal history review, in an 

5 amount not to exceed the lesser of— 

6 ‘‘(I) the sum of— 

7 ‘‘(aa) the actual cost to the 

8 Attorney General or the back9 ground check designee of con10 ducting a nationwide background 

11 check; 

12 ‘‘(bb) the actual cost to the 

13 Attorney General or the criminal 

14 history review designee of con15 ducting a criminal history review 

16 under this section; and 

17 ‘‘(cc) any costs associated 

18 with resolving inaccuracies, omis19 sions, or challenges to a covered 

20 individual’s criminal history; or 

21 ‘‘(II) to the extent practicable, 

22 not greater than $25 for a partici23 pating entity that is a nonprofit enti24 ty, except that the fee may be waived 

25 upon a showing of hardship; or 

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1 ‘‘(ii) for a State criminal background 

2 check described in paragraph (2)(D), in 

3 the amount specified in the agreement with 

4 the applicable State authorized agency, not 

5 to exceed $25. 

6 ‘‘(B) PROHIBITION ON FEES.— 

7 ‘‘(i) IN GENERAL.—A participating 

8 entity may not charge another entity or in9 dividual a surcharge to access a back10 ground check conducted under this section. 

11 ‘‘(ii) VIOLATION.—The Attorney Gen12 eral shall bar any participating entity that 

13 the Attorney General determines violated 

14 clause (i) from submitting background 

15 checks under this section. 

16 ‘‘(d) CRIMINAL HISTORY REVIEW PROGRAM.— 

17 ‘‘(1) PURPOSE.—The purpose of the criminal 

18 history review program is to provide participating 

19 entities with reliable and accurate information re20 garding whether a covered individual has been con21 victed of, or has an open arrest or pending charges 

22 for, a crime that may bear upon the fitness of the 

23 covered individual to have responsibility for the safe24 ty and well-being of the children in their care. 

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1 ‘‘(2) REQUIREMENTS.—The Attorney General 

2 or the criminal history review designee shall— 

3 ‘‘(A) establish procedures to securely re4 ceive criminal history records from the Federal 

5 Bureau of Investigation, if necessary, and from 

6 State authorized agencies, if appropriate; 

7 ‘‘(B) establish procedures to resolve poten8 tially incomplete records, under which the At9 torney General or the criminal history review 

10 designee shall— 

11 ‘‘(i) determine whether the criminal 

12 history record— 

13 ‘‘(I) includes an arrest— 

14 ‘‘(aa) that would meet the 

15 criteria described in paragraph 

16 (3)(B)(ii) if it were an open ar17 rest; and 

18 ‘‘(bb) relating to which the 

19 criminal history record does not 

20 indicate whether charges resulted 

21 from the arrest; 

22 ‘‘(II) includes a criminal 

23 charge— 

24 ‘‘(aa) for which a conviction 

25 would meet the criteria described 

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1 in subparagraph (A) or (B) of 

2 paragraph (3); and 

3 ‘‘(bb) relating to which the 

4 criminal history record does not 

5 indicate any disposition of the 

6 charge; or 

7 ‘‘(III) includes a criminal 

8 charge— 

9 ‘‘(aa) that would meet the 

10 criteria described in paragraph 

11 (3)(B)(ii) if it were a pending 

12 charge; and 

13 ‘‘(bb) relating to which the 

14 criminal history record does not 

15 indicate any disposition of the 

16 charge; and 

17 ‘‘(ii) if the criminal history record in18 cludes an arrest or charge described in 

19 clause (i), request that the Federal Bureau 

20 of Investigation— 

21 ‘‘(I) determine the status of any 

22 such arrest or charge; 

23 ‘‘(II) update the criminal history 

24 record with any disposition informa25 tion; and 

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1 ‘‘(III) convey the result of the de2 termination and any updated record 

3 to the Attorney General or criminal 

4 history review designee; 

5 ‘‘(C) after receiving a criminal history 

6 record from the Federal Bureau of Investiga7 tion and, if necessary, resolving any potentially 

8 incomplete information through the procedures 

9 described in subparagraph (B), transmit to the 

10 covered individual— 

11 ‘‘(i) the criminal history records; 

12 ‘‘(ii) a detailed notification of the 

13 rights of the covered individual under sub14 section (g); and 

15 ‘‘(iii) information about how to con16 tact the Attorney General or criminal his17 tory review designee for the purpose of 

18 challenging the accuracy or completeness 

19 of any information in the criminal history 

20 record or to withdraw consent to partici21 pate in the criminal history review pro22 gram; 

23 ‘‘(D) if the covered individual informs the 

24 Attorney General or criminal history review des25 ignee that the covered individual intends to 

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1 challenge the accuracy or completeness of any 

2 information in the criminal history record, as3 sist the covered individual in contacting the ap4 propriate persons or offices within the Federal 

5 Bureau of Investigation or State authorized 

6 agency; 

7 ‘‘(E) make determinations regarding 

8 whether the criminal history records received in 

9 response to a criminal history background check 

10 conducted under this section indicate that the 

11 covered individual has a criminal history that 

12 may bear on the covered individual’s fitness to 

13 provide care to children, based solely on the cri14 teria described in paragraph (3); 

15 ‘‘(F) unless the covered individual has 

16 withdrawn consent to participate in the criminal 

17 history review program, convey to the partici18 pating entity that submitted the request for a 

19 nationwide background check— 

20 ‘‘(i) which of the 3 categorizations de21 scribed in paragraph (3), criminal convic22 tion of special concern identified, further 

23 inquiry recommended, or no criminal 

24 records of special concern identified, apply 

25 to the covered individual; 

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1 ‘‘(ii) information and guidance relat2 ing to the appropriate use of criminal his3 tory information when making decisions re4 garding hiring employees and using volun5 teers; 

6 ‘‘(iii) if a criminal history that meets 

7 the criteria set forth in subparagraph (A) 

8 or (B) of paragraph (3) is found, a rec9 ommendation to the participating entity to 

10 consult with the covered individual in order 

11 to obtain more information about the 

12 criminal history of the covered individual, 

13 and a list of factors to consider in assess14 ing the significance of that criminal his15 tory, including— 

16 ‘‘(I) the nature, gravity, and cir17 cumstances of the offense, including 

18 whether the individual was convicted 

19 of the offense; 

20 ‘‘(II) the period of time that has 

21 elapsed since the date of the offense 

22 or end of a period of incarceration or 

23 supervised release; 

24 ‘‘(III) the nature of the position 

25 held or sought; and 

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1 ‘‘(IV) any evidence of rehabilita2 tion; and 

3 ‘‘(iv) instructions and guidance that, 

4 in evaluating the considerations described 

5 in clause (iii), the participating entity 

6 should consult the Equal Employment Op7 portunity Commission Policy Statement on 

8 the Issue of Conviction Records under title 

9 VII of the Civil Rights Act or any suc10 cessor thereto issued by the Equal Employ11 ment Opportunity Commission; 

12 ‘‘(G) if a covered individual has withdrawn 

13 consent to participate in the criminal history re14 view program, inform the participating entity 

15 that consent has been withdrawn; 

16 ‘‘(H) work with the Attorney General or 

17 the background check designee and the Federal 

18 Bureau of Investigation to develop processes 

19 and procedures to ensure that criminal history 

20 background check requests are completed within 

21 the time periods specified in subsection (e); and 

22 ‘‘(I) serve as a national resource center to 

23 provide guidance and assistance to participating 

24 entities on how to interpret criminal history in25 formation, the possible restrictions that apply 

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1 when making hiring decisions based on criminal 

2 histories, and other related information. 

3 ‘‘(3) CRIMINAL HISTORY REVIEW CRITERIA.— 

4 The Attorney General or the criminal history review 

5 designee shall, in determining when a criminal his6 tory record indicates that a covered individual has a 

7 criminal history that may bear on the fitness of the 

8 covered individual to provide care to children— 

9 ‘‘(A) assign a categorization of criminal 

10 conviction of special concern identified if a cov11 ered individual is found to have a conviction 

12 that would prevent the individual from being 

13 approved as a foster or adoptive parent under 

14 section 471(a)(20)(A) of the Social Security Act 

15 (42 U.S.C. 671(a)(20)(A)); 

16 ‘‘(B) assign a categorization of further in17 quiry recommended if a covered individual is 

18 found to have— 

19 ‘‘(i) a conviction for a serious mis20 demeanor involving the same type of con21 duct prohibited by a felony described in 

22 section 471(a)(20)(A) of the Social Secu23 rity Act (42 U.S.C. 671(a)(20)(A)) that 

24 was committed— 

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1 ‘‘(I) during the 5-year period 

2 ending on the date of the criminal his3 tory review; or 

4 ‘‘(II) in the case of a crime 

5 against a child, at any time; or 

6 ‘‘(ii) an open arrest or pending charge 

7 for a felony described in, or a serious mis8 demeanor involving the same type of con9 duct prohibited by a felony described in, 

10 section 471(a)(20)(A) of the Social Secu11 rity Act (42 U.S.C. 671(a)(20)(A)); and 

12 ‘‘(C) assign a categorization of no criminal 

13 records of special concern identified for a cov14 ered individual that does not meet the criteria 

15 described in subparagraph (A) or (B). 

16 ‘‘(e) TIMING.— 

17 ‘‘(1) IN GENERAL.—Unless exceptional cir18 cumstances apply, criminal background checks shall 

19 be completed according to the time frame under this 

20 subsection. The Attorney General or the background 

21 check designee shall work with the criminal history 

22 review designee and the Federal Bureau of Inves23 tigation to ensure that the time limits under this 

24 subsection are being achieved. 

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1 ‘‘(2) APPLICATION PROCESSING.—The Attorney 

2 General or the background check designee shall elec3 tronically submit a national background check re4 quest to the Federal Bureau of Investigation and, if 

5 appropriate, the participating State authorized agen6 cy not later than 2 business days after the date on 

7 which a request for a national background check is 

8 received by the Attorney General or the background 

9 check designee. 

10 ‘‘(3) CONDUCT OF BACKGROUND CHECKS.—The 

11 Federal Bureau of Investigation and, if appropriate, 

12 a State authorized agency shall provide criminal his13 tory records to the Attorney General or the criminal 

14 history review designee not later than 2 business 

15 days after the date on which the Federal Bureau of 

16 Investigation or State authorized agency, as the case 

17 may be, receives a request for a nationwide back18 ground check from the Attorney General or the 

19 background check designee. 

20 ‘‘(4) RESOLUTION OF POTENTIALLY INCOM21 PLETE RECORDS.—The Attorney General or criminal 

22 history review designee shall submit any request that 

23 the Federal Bureau of Investigation investigate po24 tentially incomplete records not later than 3 busi25 ness days after the date on which the Attorney Genmstockstill on PROD1PC66 with BILLS

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1 eral or criminal history review designee receives the 

2 criminal history records from the Federal Bureau of 

3 Investigation or State authorized agency. Unless the 

4 Federal Bureau of Investigation certifies that addi5 tional time is needed, the Federal Bureau of Inves6 tigation shall complete the investigation and provide 

7 the Attorney General or criminal history review des8 ignee with the results of the investigation and any 

9 updated criminal history records, not later than 5 

10 business days after the date on which the Federal 

11 Bureau of Investigation receives a request from the 

12 Attorney General or criminal history designee. 

13 ‘‘(5) PROVISION OF RECORDS TO COVERED IN14 DIVIDUALS AND OPPORTUNITY TO CHALLENGE.— 

15 When the Attorney General or the criminal history 

16 review designee finds that a covered individual’s 

17 criminal history records fall within the categoriza18 tions described in subparagraph (A) or (B) of sub19 section (d)(3), the Attorney General or criminal his20 tory review designee shall provide the covered indi21 vidual with the criminal history records of the cov22 ered individual and a detailed notification of the 

23 rights of the covered individual under subsection (g) 

24 not later than 1 business day after the date on 

25 which the Attorney General or criminal history remstockstill on PROD1PC66 with BILLS

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1 view designee receives a criminal history record from 

2 the Federal Bureau of Investigation and, if nec3 essary, resolves any potentially incomplete informa4 tion in accordance with subsection (d)(2)(B). The 

5 covered individual shall have 10 business days from 

6 the date sent to challenge the accuracy or complete7 ness of any information in the criminal history 

8 record or to withdraw consent to participate in the 

9 criminal history review program. 

10 ‘‘(6) CRIMINAL HISTORY REVIEWS.—Unless the 

11 Federal Bureau of Investigation certifies that fur12 ther time is required to resolve a challenge brought 

13 by a covered individual, the Attorney General or the 

14 criminal history review designee shall convey to the 

15 participating entity the information set forth in sub16 paragraph (F) or (G) of subsection (d)(2), as appro17 priate, 10 business days after sending the covered 

18 individuals with the criminal history records of the 

19 covered individual and a notification of their rights 

20 under subsection (g). 

21 ‘‘(f) PARTICIPATION IN PROGRAM.— 

22 ‘‘(1) IN GENERAL.—The Attorney General or 

23 the background check designee shall determine 

24 whether an entity is a covered entity and whether 

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1 that covered entity should be approved as a partici2 pating entity, based on— 

3 ‘‘(A) whether the entity is located in a 

4 State that has a qualified State program; and 

5 ‘‘(B) the consultation conducted under 

6 paragraph (2). 

7 ‘‘(2) CONSULTATION.—In determining how 

8 many covered entities to approve as participating en9 tities, the Attorney General or the background check 

10 designee shall consult quarterly with the Federal 

11 Bureau of Investigation and the criminal history re12 view designee to determine the volume of requests 

13 for national background checks that can be com14 pleted, based on the capacity of the criminal history 

15 review program and the Federal Bureau of Inves16 tigation, the availability of resources, and the dem17 onstrated need for national background checks in 

18 order to protect children. 

19 ‘‘(3) PREFERENCE FOR NONPROFIT ORGANIZA20 TIONS.—In determining whether a covered entity 

21 should be approved as a participating entity under 

22 paragraph (1), the Attorney General or the back23 ground check designee shall give preference to any 

24 organization participating in the Child Safety Pilot 

25 Program under section 108(a)(3) of the PROTECT 

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1 Act (42 U.S.C. 5119a note) on the date of enact2 ment of the Child Protection Improvements Act of 

3 2009 and to any other nonprofit organizations. 

4 ‘‘(g) RIGHT OF COVERED INDIVIDUALS TO CHAL5 LENGE ACCURACY OR COMPLETENESS OF RECORDS.—A 

6 covered individual who is the subject of a nationwide back7 ground check under this section may challenge the accu8 racy and completeness of the criminal history records in 

9 the criminal history report as provided in subsection 

10 (d)(2)(D), without submitting a separate set of finger11 prints or an additional fee. 

12 ‘‘(h) DUTIES OF THE FEDERAL BUREAU OF INVES13 TIGATION.— 

14 ‘‘(1) RESPONSE TO A REQUEST FOR CRIMINAL

15 BACKGROUND RECORDS.—Upon request by the At16 torney General or background check designee, the 

17 Federal Bureau of Investigation shall conduct a na18 tionwide background check and provide any criminal 

19 history records to the Attorney General or criminal 

20 history review designee. 

21 ‘‘(2) OPEN ARRESTS OR PENDING CHARGES.— 

22 Upon request by the Attorney General or criminal 

23 history review designee, the Federal Bureau of In24 vestigation shall— 

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1 ‘‘(A) investigate any arrest or charge de2 scribed in subsection (d)(2)(B)(i) with relevant 

3 departments and agencies of the Federal Gov4 ernment and State and local governments; 

5 ‘‘(B) determine the status of any such ar6 rest or charge; 

7 ‘‘(C) update the criminal history record 

8 with any disposition information; and 

9 ‘‘(D) convey the result of the determina10 tion and any updated criminal history record to 

11 the Attorney General or criminal history review 

12 designee. 

13 ‘‘(3) RESOLUTION OF CHALLENGES.—If a cov14 ered individual challenges the accuracy or complete15 ness of any information in the criminal history 

16 record of the covered individual, the Federal Bureau 

17 of Investigation, in consultation with the agency that 

18 contributed the record, shall— 

19 ‘‘(A) investigate the challenge with relevant 

20 departments and agencies of the Federal Gov21 ernment and State and local governments; 

22 ‘‘(B) promptly make a determination re23 garding the accuracy and completeness of the 

24 challenged information; and 

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1 ‘‘(C) correct any inaccurate or incomplete 

2 records. 

3 ‘‘(i) AUTHORIZATION OF APPROPRIATIONS.— 

4 ‘‘(1) IN GENERAL.—There are authorized to be 

5 appropriated to the Attorney General for fiscal year 

6 2009 through 2012 such sums as are necessary to 

7 carry out the provisions of this section. 

8 ‘‘(2) SENSE OF THE SENATE.—It is the sense 

9 of the Senate that in fiscal year 2009, and each fis10 cal year thereafter, the fees collected by the Attorney 

11 General or the background check designee should be 

12 sufficient to carry out the duties of the Attorney 

13 General or the background check designee under this 

14 section and to help support the criminal history re15 view program. 

16 ‘‘(j) COLLECTION OF DATA AND REPORT TO CON17 GRESS.— 

18 ‘‘(1) IN GENERAL.—Not later than 1 year after 

19 the date of enactment of the Child Protection Im20 provements Act of 2009, and annually thereafter, 

21 the Attorney General shall prepare and submit to 

22 Congress and make available to the public a report 

23 on the programs and procedures established under 

24 this Act. 

25 ‘‘(2) COLLECTION OF DATA.— 

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1 ‘‘(A) DEFINITION OF DEMOGRAPHIC CHAR2 ACTERISTICS.—In this paragraph, the term ‘de3 mographic characteristics’ includes information 

4 pertaining to race, color, ancestry, national ori5 gin, age, sex, and marital status. 

6 ‘‘(B) COMPILING.—Beginning 90 days 

7 after the date of enactment of the Child Protec8 tion Improvements Act of 2009, the Attorney 

9 General shall compile data regarding— 

10 ‘‘(i) the number and types of partici11 pating entities; 

12 ‘‘(ii) the fees charged to participating 

13 entities under this section; 

14 ‘‘(iii) the time interval between na15 tionwide background check submissions 

16 and responses under this section; 

17 ‘‘(iv) the fiscal impact of this section 

18 on State authorized agencies; 

19 ‘‘(v) the number and demographic 

20 characteristics of covered individuals sub21 mitting a statement described in subsection 

22 (c)(3)(A)(iii) as part of a request for a na23 tionwide background check; 

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1 ‘‘(vi) the number and demographic 

2 characteristics of covered individuals deter3 mined to have a criminal history; 

4 ‘‘(vii) the number, type (including the 

5 identity of the offense and whether the of6 fense was committed while the covered in7 dividual was a juvenile or adult), and fre8 quency of offenses, and length of the pe9 riod between the date of the offense and 

10 the date of the nationwide background 

11 check for any covered individuals found to 

12 have a criminal history under this section; 

13 ‘‘(viii) the procedures available for 

14 covered individuals to challenge the accu15 racy and completeness of criminal history 

16 records under this section; 

17 ‘‘(ix) the number and results of chal18 lenges to the accuracy and completeness of 

19 criminal history records under this section; 

20 ‘‘(x) the number and types of correc21 tions of erroneous criminal history records 

22 based on a challenge under this section; 

23 and 

24 ‘‘(xi) the number and types of inquir25 ies for assistance on interpreting a crimimstockstill on PROD1PC66 with BILLS

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1 nal history received by the criminal history 

2 review program. 

3 ‘‘(C) AGGREGATING DATA.—The Attorney 

4 General shall— 

5 ‘‘(i) aggregate the data collected 

6 under this paragraph by State and city; 

7 and 

8 ‘‘(ii) aggregate the data collected 

9 under clauses (v), (vi), and (vii) of sub10 paragraph (B) by race, color, ancestry, na11 tional origin, age, sex, and marital status. 

12 ‘‘(D) REPORTS.— 

13 ‘‘(i) IN GENERAL.—Not later than 1 

14 year after the date of enactment of the 

15 Child Protection Improvements Act of 

16 2009, and annually thereafter, the Attor17 ney General shall prepare and submit to 

18 Congress a report concerning the data 

19 compiled and aggregated under this para20 graph. 

21 ‘‘(ii) CONTENTS.—Each report sub22 mitted under clause (i) shall contain— 

23 ‘‘(I) the data compiled and ag24 gregated under this paragraph, orga25 nized in such a way as to provide a 

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1 comprehensive analysis of the pro2 grams and procedures established 

3 under this section; 

4 ‘‘(II) information regarding and 

5 analysis of— 

6 ‘‘(aa) the programs and pro7 cedures established under this 

8 section; and 

9 ‘‘(bb) the extent such pro10 grams and procedures have 

11 helped screen individuals who 

12 may pose a risk to children; and 

13 ‘‘(III) information regarding and 

14 analysis of whether and to what ex15 tent the programs and procedures es16 tablished under this section are hav17 ing a disparate impact on individuals 

18 based on race, color, ancestry, na19 tional origin, age, sex, or marital sta20 tus. 

21 ‘‘(iii) RECOMMENDATIONS.—A report 

22 submitted under clause (i) may contain 

23 recommendations to Congress on possible 

24 legislative improvements to this section. 

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1 ‘‘(iv) ADDITIONAL INFORMATION.— 

2 Upon the request of any member of Con3 gress, the Attorney General shall make 

4 available any of the data compiled or ag5 gregated under this paragraph. The Attor6 ney General shall not make available any 

7 data that identifies specific individuals. 

8 ‘‘(k) LIMITATION ON LIABILITY.— 

9 ‘‘(1) IN GENERAL.— 

10 ‘‘(A) FAILURE TO CONDUCT CRIMINAL

11 BACKGROUND CHECKS.—No participating entity 

12 shall be liable in an action for damages solely 

13 for failure to conduct a criminal background 

14 check on a covered individual. 

15 ‘‘(B) FAILURE TO TAKE ADVERSE ACTION

16 AGAINST COVERED INDIVIDUAL.—No partici17 pating entity shall be liable in an action for 

18 damages solely for a failure to take action ad19 verse to a covered individual upon receiving any 

20 notice of criminal history from the Attorney 

21 General or the criminal history review designee 

22 under subsection (d)(2)(F). 

23 ‘‘(2) RELIANCE.—A participating entity that 

24 reasonably relies on criminal history records received 

25 in response to a background check under this section 

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1 shall not be liable in an action for damages based 

2 on the inaccuracy or incompleteness of that informa3 tion. 

4 ‘‘(3) CRIMINAL HISTORY REVIEW PROGRAM.— 

5 ‘‘(A) IN GENERAL.—Except as provided in 

6 subparagraphs (B) and (C), the criminal his7 tory review designee, including a director, offi8 cer, employee, or agent of the criminal history 

9 review designee, shall not be liable in an action 

10 for damages relating to the performance of the 

11 responsibilities and functions of the criminal 

12 history review designee under this section. 

13 ‘‘(B) INTENTIONAL, RECKLESS, OR OTHER

14 MISCONDUCT.—Subparagraph (A) shall not 

15 apply in an action if the criminal history review 

16 designee, or a director, officer, employee, or 

17 agent of the criminal history review designee, 

18 engaged in intentional misconduct or acted, or 

19 failed to act, with actual malice, with reckless 

20 disregard to a substantial risk of causing injury 

21 without legal justification, or for a purpose un22 related to the performance of responsibilities or 

23 functions under this section. 

24 ‘‘(C) ORDINARY BUSINESS ACTIVITIES.— 

25 Subparagraph (A) shall not apply to an act or 

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1 omission relating to an ordinary business activ2 ity, such as an activity involving general admin3 istration or operations, the use of motor vehi4 cles, or personnel management. 

5 ‘‘(l) PRIVACY OF INFORMATION.— 

6 ‘‘(1) PROHIBITION ON UNAUTHORIZED DISCLO7 SURE OR USE OF CRIMINAL HISTORY RECORDS.— 

8 Except for a covered individual, any entity or indi9 vidual authorized to receive or transmit fingerprints 

10 or criminal history records under this Act— 

11 ‘‘(A) shall use the fingerprints, criminal 

12 history records, or information in the criminal 

13 history records only for the purposes specifically 

14 set forth in this Act; 

15 ‘‘(B) shall allow access to the fingerprints, 

16 criminal history records, or information in the 

17 criminal history records only to those employees 

18 of the entity, and only on such terms, as are 

19 necessary to fulfill the purposes set forth in this 

20 Act; 

21 ‘‘(C) shall not disclose the fingerprints, 

22 criminal history records, or information in the 

23 criminal history records, except as specifically 

24 authorized under this Act; 

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1 ‘‘(D) shall keep a written record of each 

2 authorized disclosure of the fingerprints, crimi3 nal history records, or the information in the 

4 criminal history records; and 

5 ‘‘(E) shall maintain adequate security 

6 measures to ensure the confidentiality of the 

7 fingerprints, the criminal history records, and 

8 the information in the criminal history records. 

9 ‘‘(2) COMPLIANCE.— 

10 ‘‘(A) IN GENERAL.—The Attorney General 

11 shall promulgate regulations to ensure the en12 forcement of the nondisclosure requirements 

13 under paragraph (1) and to provide for appro14 priate sanctions in the case of violations of the 

15 requirements. 

16 ‘‘(B) PARTICIPATING ENTITIES AND DES17 IGNEES.—The participation in any program 

18 under this section by an entity or organization 

19 that enters into an agreement with the Attorney 

20 General to carry out the duties described in 

21 subsection (c) or to carry out the criminal his22 tory review program shall be conditioned on the 

23 person— 

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1 ‘‘(i) establishing procedures to ensure 

2 compliance with, and respond to any viola3 tions of, paragraph (1); and 

4 ‘‘(ii) maintaining substantial compli5 ance with paragraph (1). 

6 ‘‘(3) DESTRUCTION OF RECORDS.— 

7 ‘‘(A) IN GENERAL.—Except as provided in 

8 subparagraph (B) and subject to subsection 

9 (e)(5), the Attorney General, the background 

10 check designee, the criminal history review des11 ignee, and the covered entity or participating 

12 entity— 

13 ‘‘(i) shall destroy any fingerprints, ei14 ther in paper or electronic form, or crimi15 nal history record received for purposes of 

16 carrying out the provisions of this Act 

17 after any transaction based on the finger18 prints or criminal history record is com19 pleted; and 

20 ‘‘(ii) shall after such destruction not 

21 maintain the fingerprints, the criminal his22 tory records, or the information in the 

23 criminal history record in any form. 

24 ‘‘(B) REPEAT APPLICANTS.—A covered in25 dividual may sign a release permitting the Atmstockstill on PROD1PC66 with BILLS

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1 torney General or criminal history review des2 ignee to retain the fingerprints and criminal 

3 history record of the covered individual for a 

4 period not to exceed 5 years, for the sole pur5 pose of participating in the criminal history re6 view program on a subsequent occasion.’’. 

7 SEC. 4. EXTENSION OF CHILD SAFETY PILOT. 

8 Section 108(a)(3)(A) of the PROTECT Act (42 

9 U.S.C. 5119a note) is amended— 

10 (1) by striking ‘‘78-month’’; and 

11 (2) by adding at the end the following: ‘‘The 

12 Child Safety Pilot Program under this paragraph 

13 shall terminate on the date that the program for na14 tional criminal history background checks for child15 serving organizations established under the Child 

16 Protection Improvements Act of 2009 is operating 

17 and able to enroll any organization using the Child 

18 Safety Pilot Program.’’. 

Æ 

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