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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1365 Introduced in Senate (IS)]

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.

    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 
2009''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) In 2006, 61,200,000 adults (a total of 26.7 percent of 
        the adult population) contributed a total of 8,100,000,000 
        hours of volunteer service. Of those who volunteer, 27 percent, 
        or a total of 16,500,000 adults, dedicate their service to 
        education or youth programs.
            (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 history records 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 
        history records, and the vulnerability of the population with 
        whom human service organizations work, those organizations that 
        work with children need an effective and reliable means of 
        obtaining relevant information about criminal histories 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 favor allowing 
        youth-serving organizations to consider arrest records when 
        screening volunteers. This was the only use for which a 
        majority of those surveyed favor granting access to arrest 
        records.
            (6) Congress has previously attempted to ensure that States 
        make Federal Bureau of Investigation criminal history 
        background 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 history 
        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 background checks. Of 68,000 background checks 
        performed through the pilot program as of May 2009, 6 percent 
        of volunteer applicants were found to have a criminal history 
        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 41 percent of the individuals with criminal 
        histories 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 history falsely indicated on their 
        application form that they did not have a criminal history.
            (11) The Child Safety Pilot Program also demonstrates that 
        timely and affordable background checks are possible.

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 `background check designee' means the entity 
        or organization, if any, designated by or entering an agreement 
        with the Attorney General under subsection (b)(3)(A) to carry 
        out or assist in carrying out the duties described in 
        subsection (c);
            ``(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 review designee' means the 
        entity or organization, if any, designated by or entering an 
        agreement with the Attorney General under subsection (b)(3)(B) 
        to carry out or assist in carrying out the criminal history 
        review program;
            ``(6) the term `criminal history review program' means the 
        program established under subsection (b)(1)(B);
            ``(7) the term `identification document' has the meaning 
        given that term in section 1028 of title 18, United States 
        Code;
            ``(8) 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 in accordance with 
                subsection (c) and participate in the criminal history 
                review program;
            ``(9) 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)(2) to 
        ensure that a wide range of youth-serving organizations have 
        affordable and timely access to nationwide background checks;
            ``(10) the term `open arrest' means an arrest relating to 
        which charges may still be brought, taking into consideration 
        the applicable statute of limitations;
            ``(11) the term `pending charge' means a criminal charge 
        that has not been resolved through conviction, acquittal, 
        dismissal, plea bargain, or any other means;
            ``(12) 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
            ``(13) 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.--
            ``(1) In general.--Not later than 180 days after the date 
        of enactment of the Child Protection Improvements Act of 2009, 
        the Attorney General shall--
                    ``(A) establish policies and procedures to carry 
                out the duties described in subsection (c); and
                    ``(B) establish a criminal history review program 
                in accordance with subsection (d).
            ``(2) Assessments.--The Attorney General shall 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 $25 for a State criminal 
                        background check and the fee charged by the 
                        Federal Bureau of Investigation for 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).
            ``(3) Designees.--The Attorney General may--
                    ``(A) designate or enter into an agreement with an 
                entity or organization that has an established history 
                of serving the interests of children to carry out or 
                assist in carrying out the duties described in 
                subsection (c); and
                    ``(B) designate or enter into an agreement with 1 
                or more Federal, State, or local government agencies to 
                carry out or assist in carrying out the criminal 
                history review program.
    ``(c) Access to Nationwide Background Checks.--
            ``(1) Purpose.--The purpose of this section 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 Attorney General or the background check 
        designee 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 in 
                accordance with this section;
                    ``(C) receive paper and electronic requests for 
                nationwide background checks on covered individuals 
                from participating entities;
                    ``(D) 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 Attorney 
                        General or the background check designee and 
                        provide criminal history records to the 
                        Attorney General or the criminal history review 
                        designee; 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 Attorney 
                        General or the background check designee;
                    ``(E) 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;
                    ``(F) collect a fee to conduct the nationwide 
                background check, and, if appropriate, a State criminal 
                background check, and remit fees to the Attorney 
                General or the criminal history review designee, the 
                Federal Bureau of Investigation, and, if appropriate, 
                the State authorized agencies; and
                    ``(G) coordinate with the Federal Bureau of 
                Investigation, participating State authorized agencies, 
                and the Attorney General or the criminal history review 
                designee 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) 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;
                            ``(iii) notifies the covered individual 
                        that the signature of the covered individual 
                        constitutes consent to participate in the 
                        criminal history review program, under which 
                        the participating entity may be informed if the 
                        criminal history records of the covered 
                        individual reveal a criminal history that 
                        warrants special concern or further inquiry;
                            ``(iv) notifies the covered individual that 
                        the covered individual shall be provided with a 
                        copy of the criminal history records of the 
                        covered individual and shall have 10 business 
                        days to review the records, challenge the 
                        accuracy or completeness of any information in 
                        the records, or withdraw consent to participate 
                        in the criminal history review program before 
                        any information about the criminal history of 
                        the covered individual is provided to the 
                        participating entity; and
                            ``(v) 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.
            ``(4) Fees.--
                    ``(A) In general.--The Attorney General or the 
                background check designee may collect a fee to defray 
                the costs of carrying out the duties described in this 
                subsection, the costs of the Federal Bureau of 
                Investigation and State and local agencies in resolving 
                the accuracy of criminal history records of covered 
                individuals, and the duties of the criminal history 
                review designee under this section--
                            ``(i) for a nationwide background check and 
                        criminal history review, in an amount not to 
                        exceed the lesser of--
                                    ``(I) the sum of--
                                            ``(aa) the actual cost to 
                                        the Attorney General or the 
                                        background check designee of 
                                        conducting a nationwide 
                                        background check;
                                            ``(bb) the actual cost to 
                                        the Attorney General or the 
                                        criminal history review 
                                        designee of conducting a 
                                        criminal history review under 
                                        this section; and
                                            ``(cc) any costs associated 
                                        with resolving inaccuracies, 
                                        omissions, or challenges to a 
                                        covered individual's criminal 
                                        history; or
                                    ``(II) to the extent practicable, 
                                not greater than $25 for a 
                                participating entity that is a 
                                nonprofit entity, except that the fee 
                                may be waived upon a showing of 
                                hardship; or
                            ``(ii) for a State criminal background 
                        check described in paragraph (2)(D), in the 
                        amount specified in the agreement with the 
                        applicable State authorized agency, not to 
                        exceed $25.
                    ``(B) 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 Review Program.--
            ``(1) Purpose.--The purpose of the criminal history review 
        program is to provide participating entities with reliable and 
        accurate information regarding whether a covered individual has 
        been convicted of, or has an open arrest or pending charges 
        for, a crime that may bear upon the fitness of the covered 
        individual to have responsibility for the safety and well-being 
        of the children in their care.
            ``(2) Requirements.--The Attorney General or the criminal 
        history review designee shall--
                    ``(A) establish procedures to securely receive 
                criminal history records from the Federal Bureau of 
                Investigation, if necessary, and from State authorized 
                agencies, if appropriate;
                    ``(B) establish procedures to resolve potentially 
                incomplete records, under which the Attorney General or 
                the criminal history review designee shall--
                            ``(i) determine whether the criminal 
                        history record--
                                    ``(I) includes an arrest--
                                            ``(aa) that would meet the 
                                        criteria described in paragraph 
                                        (3)(B)(ii) if it were an open 
                                        arrest; and
                                            ``(bb) relating to which 
                                        the criminal history record 
                                        does not indicate whether 
                                        charges resulted from the 
                                        arrest;
                                    ``(II) includes a criminal charge--
                                            ``(aa) for which a 
                                        conviction would meet the 
                                        criteria described in 
                                        subparagraph (A) or (B) of 
                                        paragraph (3); and
                                            ``(bb) relating to which 
                                        the criminal history record 
                                        does not indicate any 
                                        disposition of the charge; or
                                    ``(III) includes a criminal 
                                charge--
                                            ``(aa) that would meet the 
                                        criteria described in paragraph 
                                        (3)(B)(ii) if it were a pending 
                                        charge; and
                                            ``(bb) relating to which 
                                        the criminal history record 
                                        does not indicate any 
                                        disposition of the charge; and
                            ``(ii) if the criminal history record 
                        includes an arrest or charge described in 
                        clause (i), request that the Federal Bureau of 
                        Investigation--
                                    ``(I) determine the status of any 
                                such arrest or charge;
                                    ``(II) update the criminal history 
                                record with any disposition 
                                information; and
                                    ``(III) convey the result of the 
                                determination and any updated record to 
                                the Attorney General or criminal 
                                history review designee;
                    ``(C) after receiving a criminal history record 
                from the Federal Bureau of Investigation and, if 
                necessary, resolving any potentially incomplete 
                information through the procedures described in 
                subparagraph (B), transmit to the covered individual--
                            ``(i) the criminal history records;
                            ``(ii) a detailed notification of the 
                        rights of the covered individual under 
                        subsection (g); and
                            ``(iii) information about how to contact 
                        the Attorney General or criminal history review 
                        designee for the purpose of challenging the 
                        accuracy or completeness of any information in 
                        the criminal history record or to withdraw 
                        consent to participate in the criminal history 
                        review program;
                    ``(D) if the covered individual informs the 
                Attorney General or criminal history review designee 
                that the covered individual intends to challenge the 
                accuracy or completeness of any information in the 
                criminal history record, assist the covered individual 
                in contacting the appropriate persons or offices within 
                the Federal Bureau of Investigation or State authorized 
                agency;
                    ``(E) make determinations regarding whether the 
                criminal history records received in response to a 
                criminal history background check conducted under this 
                section indicate that the covered individual has a 
                criminal history that may bear on the covered 
                individual's fitness to provide care to children, based 
                solely on the criteria described in paragraph (3);
                    ``(F) unless the covered individual has withdrawn 
                consent to participate in the criminal history review 
                program, convey to the participating entity that 
                submitted the request for a nationwide background 
                check--
                            ``(i) which of the 3 categorizations 
                        described in paragraph (3), criminal conviction 
                        of special concern identified, further inquiry 
                        recommended, or no criminal records of special 
                        concern identified, apply to the covered 
                        individual;
                            ``(ii) information and guidance relating to 
                        the appropriate use of criminal history 
                        information when making decisions regarding 
                        hiring employees and using volunteers;
                            ``(iii) if a criminal history that meets 
                        the criteria set forth in subparagraph (A) or 
                        (B) of paragraph (3) is found, a recommendation 
                        to the participating entity to consult with the 
                        covered individual in order to obtain more 
                        information about the criminal history of the 
                        covered individual, and a list of factors to 
                        consider in assessing the significance of that 
                        criminal history, including--
                                    ``(I) the nature, gravity, and 
                                circumstances of the offense, including 
                                whether the individual was convicted of 
                                the offense;
                                    ``(II) the period of time that has 
                                elapsed since the date of the offense 
                                or end of a period of incarceration or 
                                supervised release;
                                    ``(III) the nature of the position 
                                held or sought; and
                                    ``(IV) any evidence of 
                                rehabilitation; and
                            ``(iv) instructions and guidance 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 or any successor thereto issued by 
                        the Equal Employment Opportunity Commission;
                    ``(G) if a covered individual has withdrawn consent 
                to participate in the criminal history review program, 
                inform the participating entity that consent has been 
                withdrawn;
                    ``(H) work with the Attorney General or the 
                background check designee and the Federal Bureau of 
                Investigation to develop processes and procedures to 
                ensure that criminal history background check requests 
                are completed within the time periods specified in 
                subsection (e); and
                    ``(I) serve as a national resource center to 
                provide guidance and assistance to participating 
                entities on how to interpret criminal history 
                information, the possible restrictions that apply when 
                making hiring decisions based on criminal histories, 
                and other related information.
            ``(3) Criminal history review criteria.--The Attorney 
        General or the criminal history review designee shall, in 
        determining when a criminal history record indicates that a 
        covered individual has a criminal history that may bear on the 
        fitness of the covered individual to provide care to children--
                    ``(A) assign a categorization of criminal 
                conviction of special concern identified if a covered 
                individual is found to have a conviction that would 
                prevent the individual from being approved as a foster 
                or adoptive parent under section 471(a)(20)(A) of the 
                Social Security Act (42 U.S.C. 671(a)(20)(A));
                    ``(B) assign a categorization of further inquiry 
                recommended if a covered individual is found to have--
                            ``(i) a conviction for a serious 
                        misdemeanor involving the same type of conduct 
                        prohibited by a felony described in section 
                        471(a)(20)(A) of the Social Security Act (42 
                        U.S.C. 671(a)(20)(A)) that was committed--
                                    ``(I) during the 5-year period 
                                ending on the date of the criminal 
                                history review; or
                                    ``(II) in the case of a crime 
                                against a child, at any time; or
                            ``(ii) an open arrest or pending charge for 
                        a felony described in, or a serious misdemeanor 
                        involving the same type of conduct prohibited 
                        by a felony described in, section 471(a)(20)(A) 
                        of the Social Security Act (42 U.S.C. 
                        671(a)(20)(A)); and
                    ``(C) assign a categorization of no criminal 
                records of special concern identified for a covered 
                individual that does not meet the criteria described in 
                subparagraph (A) or (B).
    ``(e) Timing.--
            ``(1) In general.--Unless exceptional circumstances apply, 
        criminal background checks shall be completed according to the 
        time frame under this subsection. The Attorney General or the 
        background check designee shall work with the criminal history 
        review designee and the Federal Bureau of Investigation to 
        ensure that the time limits under this subsection are being 
        achieved.
            ``(2) Application processing.--The Attorney General or the 
        background check designee shall electronically submit a 
        national background check request to the Federal Bureau of 
        Investigation and, if appropriate, the participating State 
        authorized agency not later than 2 business days after the date 
        on which a request for a national background check is received 
        by the Attorney General or the background check designee.
            ``(3) Conduct of background checks.--The Federal Bureau of 
        Investigation and, if appropriate, a State authorized agency 
        shall provide criminal history records to the Attorney General 
        or the criminal history review designee not later than 2 
        business days after the date on which the Federal Bureau of 
        Investigation or State authorized agency, as the case may be, 
        receives a request for a nationwide background check from the 
        Attorney General or the background check designee.
            ``(4) Resolution of potentially incomplete records.--The 
        Attorney General or criminal history review designee shall 
        submit any request that the Federal Bureau of Investigation 
        investigate potentially incomplete records not later than 3 
        business days after the date on which the Attorney General or 
        criminal history review designee receives the criminal history 
        records from the Federal Bureau of Investigation or State 
        authorized agency. Unless the Federal Bureau of Investigation 
        certifies that additional time is needed, the Federal Bureau of 
        Investigation shall complete the investigation and provide the 
        Attorney General or criminal history review designee with the 
        results of the investigation and any updated criminal history 
        records, not later than 5 business days after the date on which 
        the Federal Bureau of Investigation receives a request from the 
        Attorney General or criminal history designee.
            ``(5) Provision of records to covered individuals and 
        opportunity to challenge.--When the Attorney General or the 
        criminal history review designee finds that a covered 
        individual's criminal history records fall within the 
        categorizations described in subparagraph (A) or (B) of 
        subsection (d)(3), the Attorney General or criminal history 
        review designee shall provide the covered individual with the 
        criminal history records of the covered individual and a 
        detailed notification of the rights of the covered individual 
        under subsection (g) not later than 1 business day after the 
        date on which the Attorney General or criminal history review 
        designee receives a criminal history record from the Federal 
        Bureau of Investigation and, if necessary, resolves any 
        potentially incomplete information in accordance with 
        subsection (d)(2)(B). The covered individual shall have 10 
        business days from the date sent to challenge the accuracy or 
        completeness of any information in the criminal history record 
        or to withdraw consent to participate in the criminal history 
        review program.
            ``(6) Criminal history reviews.--Unless the Federal Bureau 
        of Investigation certifies that further time is required to 
        resolve a challenge brought by a covered individual, the 
        Attorney General or the criminal history review designee shall 
        convey to the participating entity the information set forth in 
        subparagraph (F) or (G) of subsection (d)(2), as appropriate, 
        10 business days after sending the covered individuals with the 
        criminal history records of the covered individual and a 
        notification of their rights under subsection (g).
    ``(f) Participation in Program.--
            ``(1) In general.--The Attorney General or the background 
        check designee 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 Attorney 
        General or the background check designee shall consult 
        quarterly with the Federal Bureau of Investigation and the 
        criminal history review designee to determine the volume of 
        requests for national background checks that can be completed, 
        based on the capacity of the criminal history review program 
        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 Attorney General 
        or the background check designee 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) Right of Covered Individuals To Challenge Accuracy or 
Completeness of Records.--A covered individual who is the subject of a 
nationwide background check under this section may challenge the 
accuracy and completeness of the criminal history records in the 
criminal history report as provided in subsection (d)(2)(D), without 
submitting a separate set of fingerprints or an additional fee.
    ``(h) Duties of the Federal Bureau of Investigation.--
            ``(1) Response to a request for criminal background 
        records.--Upon request by the Attorney General or background 
        check designee, the Federal Bureau of Investigation shall 
        conduct a nationwide background check and provide any criminal 
        history records to the Attorney General or criminal history 
        review designee.
            ``(2) Open arrests or pending charges.--Upon request by the 
        Attorney General or criminal history review designee, the 
        Federal Bureau of Investigation shall--
                    ``(A) investigate any arrest or charge described in 
                subsection (d)(2)(B)(i) with relevant departments and 
                agencies of the Federal Government and State and local 
                governments;
                    ``(B) determine the status of any such arrest or 
                charge;
                    ``(C) update the criminal history record with any 
                disposition information; and
                    ``(D) convey the result of the determination and 
                any updated criminal history record to the Attorney 
                General or criminal history review designee.
            ``(3) Resolution of challenges.--If a covered individual 
        challenges the accuracy or completeness of any information in 
        the criminal history record of the covered individual, the 
        Federal Bureau of Investigation, in consultation with the 
        agency that contributed the record, shall--
                    ``(A) investigate the challenge with relevant 
                departments and agencies of the Federal Government and 
                State and local governments;
                    ``(B) promptly make a determination regarding the 
                accuracy and completeness of the challenged 
                information; and
                    ``(C) correct any inaccurate or incomplete records.
    ``(i) Authorization of Appropriations.--
            ``(1) In general.--There are authorized to be appropriated 
        to the Attorney General for fiscal year 2009 through 2012 such 
        sums as are necessary to carry out the provisions of this 
        section.
            ``(2) 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 Attorney General or the background check 
        designee should be sufficient to carry out the duties of the 
        Attorney General or the background check designee under this 
        section and to help support the criminal history review 
        program.
    ``(j) 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 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)(A)(iii) 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 records 
                        under this section;
                            ``(ix) the number and results of challenges 
                        to the accuracy and completeness of criminal 
                        history records under this section;
                            ``(x) the number and types of corrections 
                        of erroneous criminal history records 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 review 
                        program.
                    ``(C) Aggregating data.--The Attorney General 
                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.
    ``(k) 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 
                Attorney General or the criminal history review 
                designee under subsection (d)(2)(F).
            ``(2) Reliance.--A participating entity that reasonably 
        relies on criminal history records 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) Criminal history review program.--
                    ``(A) In general.--Except as provided in 
                subparagraphs (B) and (C), the criminal history review 
                designee, including a director, officer, employee, or 
                agent of the criminal history review designee, shall 
                not be liable in an action for damages relating to the 
                performance of the responsibilities and functions of 
                the criminal history review designee under this 
                section.
                    ``(B) Intentional, reckless, or other misconduct.--
                Subparagraph (A) shall not apply in an action if the 
                criminal history review designee, or a director, 
                officer, employee, or agent of the criminal history 
                review designee, 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.
    ``(l) 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.--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 designees.--The 
                participation in any program under this section by an 
                entity or organization that enters into an agreement 
                with the Attorney General to carry out the duties 
                described in subsection (c) or to carry out the 
                criminal history review program shall be conditioned on 
                the person--
                            ``(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.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B) and subject to subsection (e)(5), the 
                Attorney General, the background check designee, the 
                criminal history review designee, and the covered 
                entity or participating entity--
                            ``(i) shall destroy any fingerprints, 
                        either in paper or electronic form, or criminal 
                        history record received for purposes of 
                        carrying out the provisions of this Act after 
                        any transaction based on the fingerprints or 
                        criminal history record is completed; and
                            ``(ii) shall after such destruction not 
                        maintain the fingerprints, the criminal history 
                        records, or the information in the criminal 
                        history record in any form.
                    ``(B) Repeat applicants.--A covered individual may 
                sign a release permitting the Attorney General or 
                criminal history review designee to retain the 
                fingerprints and criminal history record of the covered 
                individual for a period not to exceed 5 years, for the 
                sole purpose of participating in the criminal history 
                review program on a subsequent occasion.''.

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 ``78-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.''.
                                 <all>
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