II 

111TH CONGRESS 

1ST SESSION S. 1598 

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

background check system. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 6, 2009 

Mr. SCHUMER (for himself, Mr. ISAKSON, Mr. BAYH, Mr. ENSIGN, Mr. 

VITTER, Mr. SPECTER, 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 menVerDate Nov 24 2008 04:54 Aug 07, 2009 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1598.IS S1598

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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 into an agreement with the Attorney 

4 General under subsection (b)(3)(A) to carry out or 

5 assist in carrying out the duties described in sub6 section (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 as estab3 lished in paragraph (4)(A)(i); and 

4 ‘‘(iii) returns requests for State crimi5 nal background checks and nationwide 

6 background checks to a covered entity not 

7 later than 10 business days after the date 

8 on which the request was made; and 

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

10 under subparagraph (A), an assessment de11 scribed in that subparagraph of a State author12 ized agency if— 

13 ‘‘(i) a State authorized agency that 

14 does not have a qualified State program 

15 requests such an assessment; or 

16 ‘‘(ii) the Attorney General receives re17 ports from covered entities indicating that 

18 a State authorized agency that has a quali19 fied State program no longer meets the 

20 standards described in subparagraph (A). 

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

22 may— 

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

24 with an entity or organization to carry out or 


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1 assist in carrying out the duties described in 

2 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 

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1 ship as determined by the Attorney 

2 General through policies and proce3 dures established in subsection 

4 (b)(1)(A); or 

5 ‘‘(ii) for a State criminal background 

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

7 the amount specified in the agreement with 

8 the applicable State authorized agency, not 

9 to exceed $25. 

10 ‘‘(B) PROHIBITION ON FEES.— 

11 ‘‘(i) IN GENERAL.—A participating 

12 entity may not charge another entity or in13 dividual a surcharge to access a back14 ground check conducted under this section. 

15 ‘‘(ii) VIOLATION.—The Attorney Gen16 eral shall bar any participating entity that 

17 the Attorney General determines violated 

18 clause (i) from submitting background 

19 checks under this section. 

20 ‘‘(C) HARDSHIP WAIVER.—The receipt of a 

21 hardship waiver by a nonprofit entity under 

22 subparagraph (A)(i)(II) shall not affect the 

23 time period requirements applicable to the non24 profit entity under subsection (e). 

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


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

2 history review program is to provide participating 

3 entities with reliable and accurate information re4 garding whether a covered individual has been con5 victed of, or has an open arrest or pending charges 

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

7 covered individual to have responsibility for the safe8 ty and well-being of the children in their care. 

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

10 or the criminal history review designee shall— 

11 ‘‘(A) establish procedures to securely re12 ceive criminal history records from the Federal 

13 Bureau of Investigation, if necessary, and from 

14 State authorized agencies, if appropriate; 

15 ‘‘(B) establish procedures to resolve poten16 tially incomplete records, under which the At17 torney General or the criminal history review 

18 designee shall— 

19 ‘‘(i) determine whether the criminal 

20 history record— 

21 ‘‘(I) includes an arrest— 

22 ‘‘(aa) that would meet the 

23 criteria described in paragraph 

24 (3)(B)(ii) if it were an open ar25 rest; and 


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1 ‘‘(bb) relating to which the 

2 criminal history record does not 

3 indicate whether charges resulted 

4 from the arrest; 

5 ‘‘(II) includes a criminal 

6 charge— 

7 ‘‘(aa) for which a conviction 

8 would meet the criteria described 

9 in subparagraph (A) or (B) of 

10 paragraph (3); and 

11 ‘‘(bb) relating to which the 

12 criminal history record does not 

13 indicate any disposition of the 

14 charge; or 

15 ‘‘(III) includes a criminal 

16 charge— 

17 ‘‘(aa) that would meet the 

18 criteria described in paragraph 

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

20 charge; and 

21 ‘‘(bb) relating to which the 

22 criminal history record does not 

23 indicate any disposition of the 

24 charge; and 


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1 ‘‘(ii) if the criminal history record in2 cludes an arrest or charge described in 

3 clause (i), request that the Federal Bureau 

4 of Investigation— 

5 ‘‘(I) determine the status of any 

6 such arrest or charge; 

7 ‘‘(II) update the criminal history 

8 record with any disposition informa9 tion; and 

10 ‘‘(III) convey the result of the de11 termination and any updated record 

12 to the Attorney General or criminal 

13 history review designee; 

14 ‘‘(C) after receiving a criminal history 

15 record from the Federal Bureau of Investiga16 tion and, if necessary, resolving any potentially 

17 incomplete information through the procedures 

18 described in subparagraph (B), transmit to the 

19 covered individual— 

20 ‘‘(i) the criminal history records; 

21 ‘‘(ii) a detailed notification of the 

22 rights of the covered individual under sub23 section (g); and 

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1 tory review designee for the purpose of 

2 challenging the accuracy or completeness 

3 of any information in the criminal history 

4 record or to withdraw consent to partici5 pate in the criminal history review pro6 gram; 

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

8 Attorney General or criminal history review des9 ignee that the covered individual intends to 

10 challenge the accuracy or completeness of any 

11 information in the criminal history record, as12 sist the covered individual in contacting the ap13 propriate persons or offices within the Federal 

14 Bureau of Investigation or State authorized 

15 agency; 

16 ‘‘(E) make determinations regarding 

17 whether the criminal history records received in 

18 response to a criminal history background check 

19 conducted under this section indicate that the 

20 covered individual has a criminal history that 

21 may bear on the covered individual’s fitness to 

22 provide care to children, based solely on the cri23 teria described in paragraph (3); 

24 ‘‘(F) unless the covered individual has 

25 withdrawn consent to participate in the criminal 


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1 history review program, convey to the partici2 pating entity that submitted the request for a 

3 nationwide background check— 

4 ‘‘(i) which of the 3 categorizations de5 scribed in paragraph (3), criminal convic6 tion of special concern identified, further 

7 inquiry recommended, or no criminal 

8 records of special concern identified, apply 

9 to the covered individual; 

10 ‘‘(ii) information and guidance relat11 ing to the appropriate use of criminal his12 tory information when making decisions re13 garding hiring employees and using volun14 teers; 

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

16 the criteria set forth in subparagraph (A) 

17 or (B) of paragraph (3) is found, a rec18 ommendation to the participating entity to 

19 consult with the covered individual in order 

20 to obtain more information about the 

21 criminal history of the covered individual, 

22 and a list of factors to consider in assess23 ing the significance of that criminal his24 tory, including— 


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1 ‘‘(I) the nature, gravity, and cir2 cumstances of the offense, including 

3 whether the individual was convicted 

4 of the offense; 

5 ‘‘(II) the period of time that has 

6 elapsed since the date of the offense 

7 or end of a period of incarceration or 

8 supervised release; 

9 ‘‘(III) the nature of the position 

10 held or sought; and 

11 ‘‘(IV) any evidence of rehabilita12 tion; and 

13 ‘‘(iv) instructions and guidance that, 

14 in evaluating the considerations described 

15 in clause (iii), the participating entity 

16 should consult the Equal Employment Op17 portunity Commission Policy Statement on 

18 the Issue of Conviction Records under 

19 Title VII of the Civil Rights Act or any 

20 successor thereto issued by the Equal Em21 ployment Opportunity Commission; 

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

23 consent to participate in the criminal history re24 view program, inform the participating entity 

25 that consent has been withdrawn; 


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

2 the background check designee and the Federal 

3 Bureau of Investigation to develop processes 

4 and procedures to ensure that criminal history 

5 background check requests are completed within 

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

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

8 provide guidance and assistance to participating 

9 entities on how to interpret criminal history in10 formation, the possible restrictions that apply 

11 when making hiring decisions based on criminal 

12 histories, and other related information. 

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

14 The Attorney General or the criminal history review 

15 designee shall, in determining when a criminal his16 tory record indicates that a covered individual has a 

17 criminal history that may bear on the fitness of the 

18 covered individual to provide care to children— 

19 ‘‘(A) assign a categorization of criminal 

20 conviction of special concern identified if a cov21 ered individual is found to have a conviction 

22 that would prevent the individual from being 

23 approved as a foster or adoptive parent under 

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

25 (42 U.S.C. 671(a)(20)(A)); 


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1 ‘‘(B) assign a categorization of further in2 quiry recommended if a covered individual is 

3 found to have— 

4 ‘‘(i) a conviction for a serious mis5 demeanor involving the same type of con6 duct prohibited by a felony described in 

7 section 471(a)(20)(A) of the Social Secu8 rity Act (42 U.S.C. 671(a)(20)(A)) that 

9 was committed— 

10 ‘‘(I) during the 5-year period 

11 ending on the date of the criminal his12 tory review; or 

13 ‘‘(II) in the case of a crime 

14 against a child, at any time; or 

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

16 for a felony described in, or a serious mis17 demeanor involving the same type of con18 duct prohibited by a felony described in, 

19 section 471(a)(20)(A) of the Social Secu20 rity Act (42 U.S.C. 671(a)(20)(A)); and 

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

22 records of special concern identified for a cov23 ered individual that does not meet the criteria 

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

25 ‘‘(e) TIMING.— 


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1 ‘‘(1) IN GENERAL.—Unless exceptional cir2 cumstances apply, criminal background checks shall 

3 be completed according to the time frame under this 

4 subsection. The Attorney General or the background 

5 check designee shall work with the criminal history 

6 review designee and the Federal Bureau of Inves7 tigation to ensure that the time limits under this 

8 subsection are being achieved. 

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

10 General or the background check designee shall elec11 tronically submit a national background check re12 quest to the Federal Bureau of Investigation and, if 

13 appropriate, the participating State authorized agen14 cy not later than 2 business days after the date on 

15 which a request for a national background check is 

16 received by the Attorney General or the background 

17 check designee. 

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

19 Federal Bureau of Investigation and, if appropriate, 

20 a State authorized agency shall provide criminal his21 tory records to the Attorney General or the criminal 

22 history review designee not later than 2 business 

23 days after the date on which the Federal Bureau of 

24 Investigation or State authorized agency, as the case 

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1 ground check from the Attorney General or the 

2 background check designee. 

3 ‘‘(4) RESOLUTION OF POTENTIALLY INCOM4 PLETE RECORDS.—The Attorney General or criminal 

5 history review designee shall submit any request that 

6 the Federal Bureau of Investigation investigate po7 tentially incomplete records not later than 3 busi8 ness days after the date on which the Attorney Gen9 eral or criminal history review designee receives the 

10 criminal history records from the Federal Bureau of 

11 Investigation or State authorized agency. Unless the 

12 Federal Bureau of Investigation certifies that addi13 tional time is needed, the Federal Bureau of Inves14 tigation shall complete the investigation and provide 

15 the Attorney General or criminal history review des16 ignee with the results of the investigation and any 

17 updated criminal history records, not later than 5 

18 business days after the date on which the Federal 

19 Bureau of Investigation receives a request from the 

20 Attorney General or criminal history designee. 

21 ‘‘(5) PROVISION OF RECORDS TO COVERED IN22 DIVIDUALS AND OPPORTUNITY TO CHALLENGE.— 

23 When the Attorney General or the criminal history 

24 review designee finds that a covered individual’s 

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1 tions described in subparagraph (A) or (B) of sub2 section (d)(3), the Attorney General or criminal his3 tory review designee shall provide the covered indi4 vidual with the criminal history records of the cov5 ered individual and a detailed notification of the 

6 rights of the covered individual under subsection (g) 

7 not later than 1 business day after the date on 

8 which the Attorney General or criminal history re9 view designee receives a criminal history record from 

10 the Federal Bureau of Investigation and, if nec11 essary, resolves any potentially incomplete informa12 tion in accordance with subsection (d)(2)(B). The 

13 covered individual shall have 10 business days from 

14 the date sent to challenge the accuracy or complete15 ness of any information in the criminal history 

16 record or to withdraw consent to participate in the 

17 criminal history review program. 

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

19 Federal Bureau of Investigation certifies that fur20 ther time is required to resolve a challenge brought 

21 by a covered individual, the Attorney General or the 

22 criminal history review designee shall convey to the 

23 participating entity the information set forth in sub24 paragraph (F) or (G) of subsection (d)(2), as appro25 priate, 10 business days after sending the covered 


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1 individuals with the criminal history records of the 

2 covered individual and a notification of their rights 

3 under subsection (g). 

4 ‘‘(f) PARTICIPATION IN PROGRAM.— 

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

6 the background check designee shall determine 

7 whether an entity is a covered entity and whether 

8 that covered entity should be approved as a partici9 pating entity, based on— 

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

11 State that has a qualified State program; and 

12 ‘‘(B) the consultation conducted under 

13 paragraph (2). 

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

15 many covered entities to approve as participating en16 tities, the Attorney General or the background check 

17 designee shall consult quarterly with the Federal 

18 Bureau of Investigation and the criminal history re19 view designee to determine the volume of requests 

20 for national background checks that can be com21 pleted, based on the capacity of the criminal history 

22 review program and the Federal Bureau of Inves23 tigation, the availability of resources, and the dem24 onstrated need for national background checks in 

25 order to protect children. 


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1 ‘‘(3) PREFERENCE FOR NONPROFIT ORGANIZA2 TIONS.—In determining whether a covered entity 

3 should be approved as a participating entity under 

4 paragraph (1), the Attorney General or the back5 ground check designee shall give preference to any 

6 organization participating in the Child Safety Pilot 

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

8 Act (42 U.S.C. 5119a note) on the date of enact9 ment of the Child Protection Improvements Act of 

10 2009 and to any other nonprofit organizations. 

11 ‘‘(g) RIGHT OF COVERED INDIVIDUALS TO CHAL12 LENGE ACCURACY OR COMPLETENESS OF RECORDS.—A 

13 covered individual who is the subject of a nationwide back14 ground check under this section may challenge the accu15 racy and completeness of the criminal history records in 

16 the criminal history report as provided in subsection 

17 (d)(2)(D), without submitting a separate set of finger18 prints or an additional fee. 

19 ‘‘(h) DUTIES OF THE FEDERAL BUREAU OF INVES20 TIGATION.— 

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

22 BACKGROUND RECORDS.—Upon request by the At23 torney General or background check designee, the 

24 Federal Bureau of Investigation shall conduct a na25 tionwide background check and provide any criminal 


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1 history records to the Attorney General or criminal 

2 history review designee. 

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

4 Upon request by the Attorney General or criminal 

5 history review designee, the Federal Bureau of In6 vestigation shall— 

7 ‘‘(A) investigate any arrest or charge de8 scribed in subsection (d)(2)(B)(i) with relevant 

9 departments and agencies of the Federal Gov10 ernment and State and local governments; 

11 ‘‘(B) determine the status of any such ar12 rest or charge; 

13 ‘‘(C) update the criminal history record 

14 with any disposition information; and 

15 ‘‘(D) convey the result of the determina16 tion and any updated criminal history record to 

17 the Attorney General or criminal history review 

18 designee. 

19 ‘‘(3) RESOLUTION OF CHALLENGES.—If a cov20 ered individual challenges the accuracy or complete21 ness of any information in the criminal history 

22 record of the covered individual, the Federal Bureau 

23 of Investigation, in consultation with the agency that 

24 contributed the record, shall— 


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1 ‘‘(A) investigate the challenge with relevant 

2 departments and agencies of the Federal Gov3 ernment and State and local governments; 

4 ‘‘(B) promptly make a determination re5 garding the accuracy and completeness of the 

6 challenged information; and 

7 ‘‘(C) correct any inaccurate or incomplete 

8 records. 

9 ‘‘(i) AUTHORIZATION OF APPROPRIATIONS.— 

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

11 appropriated to the Attorney General for fiscal year 

12 2009 through 2012 such sums as are necessary to 

13 carry out the provisions of this section. 

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

15 of the Senate that in fiscal year 2009, and each fis16 cal year thereafter, the fees collected by the Attorney 

17 General or the background check designee should be 

18 sufficient to carry out the duties of the Attorney 

19 General or the background check designee under this 

20 section and to help support the criminal history re21 view program. 

22 ‘‘(j) COLLECTION OF DATA AND REPORT TO CON23 GRESS.— 

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

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1 provements Act of 2009, and annually thereafter, 

2 the Attorney General shall prepare and submit to 

3 Congress and make available to the public a report 

4 on the programs and procedures established under 

5 this Act. 

6 ‘‘(2) COLLECTION OF DATA.— 

7 ‘‘(A) DEFINITION OF DEMOGRAPHIC CHAR8 ACTERISTICS.—In this paragraph, the term ‘de9 mographic characteristics’ includes information 

10 pertaining to race, color, ancestry, national ori11 gin, age, sex, and marital status. 

12 ‘‘(B) COMPILING.—Beginning 90 days 

13 after the date of enactment of the Child Protec14 tion Improvements Act of 2009, the Attorney 

15 General shall compile data regarding— 

16 ‘‘(i) the number and types of partici17 pating entities; 

18 ‘‘(ii) the fees charged to participating 

19 entities under this section; 

20 ‘‘(iii) the time interval between na21 tionwide background check submissions 

22 and responses under this section; 

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

24 on State authorized agencies; 


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1 ‘‘(v) the number and demographic 

2 characteristics of covered individuals sub3 mitting a statement described in subsection 

4 (c)(3)(A)(iii) as part of a request for a na5 tionwide background check; 

6 ‘‘(vi) the number and demographic 

7 characteristics of covered individuals deter8 mined to have a criminal history; 

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

10 identity of the offense and whether the of11 fense was committed while the covered in12 dividual was a juvenile or adult), and fre13 quency of offenses, and length of the pe14 riod between the date of the offense and 

15 the date of the nationwide background 

16 check for any covered individuals found to 

17 have a criminal history under this section; 

18 ‘‘(viii) the procedures available for 

19 covered individuals to challenge the accu20 racy and completeness of criminal history 

21 records under this section; 

22 ‘‘(ix) the number and results of chal23 lenges to the accuracy and completeness of 

24 criminal history records under this section; 


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1 ‘‘(x) the number and types of correc2 tions of erroneous criminal history records 

3 based on a challenge under this section; 

4 and 

5 ‘‘(xi) the number and types of inquir6 ies for assistance on interpreting a crimi7 nal history received by the criminal history 

8 review program. 

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

10 General shall— 

11 ‘‘(i) aggregate the data collected 

12 under this paragraph by State and city; 

13 and 

14 ‘‘(ii) aggregate the data collected 

15 under clauses (v), (vi), and (vii) of sub16 paragraph (B) by race, color, ancestry, na17 tional origin, age, sex, and marital status. 

18 ‘‘(D) REPORTS.— 

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

20 year after the date of enactment of the 

21 Child Protection Improvements Act of 

22 2009, and annually thereafter, the Attor23 ney General shall prepare and submit to 

24 Congress a report concerning the data 


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1 compiled and aggregated under this para2 graph. 

3 ‘‘(ii) CONTENTS.—Each report sub4 mitted under clause (i) shall contain— 

5 ‘‘(I) the data compiled and ag6 gregated under this paragraph, orga7 nized in such a way as to provide a 

8 comprehensive analysis of the pro9 grams and procedures established 

10 under this section; 

11 ‘‘(II) information regarding and 

12 analysis of— 

13 ‘‘(aa) the programs and pro14 cedures established under this 

15 section; and 

16 ‘‘(bb) the extent such pro17 grams and procedures have 

18 helped screen individuals who 

19 may pose a risk to children; and 

20 ‘‘(III) information regarding and 

21 analysis of whether and to what ex22 tent the programs and procedures es23 tablished under this section are hav24 ing a disparate impact on individuals 

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1 tional origin, age, sex, or marital sta2 tus. 

3 ‘‘(iii) RECOMMENDATIONS.—A report 

4 submitted under clause (i) may contain 

5 recommendations to Congress on possible 

6 legislative improvements to this section. 

7 ‘‘(iv) ADDITIONAL INFORMATION.— 

8 Upon the request of any member of Con9 gress, the Attorney General shall make 

10 available any of the data compiled or ag11 gregated under this paragraph. The Attor12 ney General shall not make available any 

13 data that identifies specific individuals. 

14 ‘‘(k) LIMITATION ON LIABILITY.— 

15 ‘‘(1) IN GENERAL.— 

16 ‘‘(A) FAILURE TO CONDUCT CRIMINAL

17 BACKGROUND CHECKS.—No participating entity 

18 shall be liable in an action for damages solely 

19 for failure to conduct a criminal background 

20 check on a covered individual. 

21 ‘‘(B) FAILURE TO TAKE ADVERSE ACTION

22 AGAINST COVERED INDIVIDUAL.—No partici23 pating entity shall be liable in an action for 

24 damages solely for a failure to take action ad25 verse to a covered individual upon receiving any 


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1 notice of criminal history from the Attorney 

2 General or the criminal history review designee 

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

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

5 reasonably relies on criminal history records received 

6 in response to a background check under this section 

7 shall not be liable in an action for damages based 

8 on the inaccuracy or incompleteness of that informa9 tion. 

10 ‘‘(3) LIMITATION OF LIABILITY FOR DES11 IGNEES.— 

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

13 subparagraphs (B) and (C) the background 

14 check designee and the criminal history review 

15 designee, including a director, officer, employee, 

16 or agent of the background check designee, or 

17 the criminal history review designee, shall not 

18 be liable in an action for damages relating to 

19 the performance of the responsibilities and 

20 functions of the background check designee and 

21 the criminal history review designee under this 

22 section. 

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

24 MISCONDUCT.—Subparagraph (A) shall not 

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1 ignee or the criminal history review designee, or 

2 a director, officer, employee, or agent of the 

3 background check designee or the criminal his4 tory review designee, engaged in intentional 

5 misconduct or acted, or failed to act, with ac6 tual malice, with reckless disregard to a sub7 stantial risk of causing injury without legal jus8 tification, or for a purpose unrelated to the per9 formance of responsibilities or functions under 

10 this section. 

11 ‘‘(C) ORDINARY BUSINESS ACTIVITIES.— 

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

13 omission relating to an ordinary business activ14 ity, such as an activity involving general admin15 istration or operations, the use of motor vehi16 cles, or personnel management. 

17 ‘‘(l) PRIVACY OF INFORMATION.— 

18 ‘‘(1) PROHIBITION ON UNAUTHORIZED DISCLO19 SURE OR USE OF CRIMINAL HISTORY RECORDS.— 

20 Except for a covered individual, any entity or indi21 vidual authorized to receive or transmit fingerprints 

22 or criminal history records under this Act— 

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

24 history records, or information in the criminal 


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1 history records only for the purposes specifically 

2 set forth in this Act; 

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

4 criminal history records, or information in the 

5 criminal history records only to those employees 

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

7 necessary to fulfill the purposes set forth in this 

8 Act; 

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

10 criminal history records, or information in the 

11 criminal history records, except as specifically 

12 authorized under this Act; 

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

14 authorized disclosure of the fingerprints, crimi15 nal history records, or the information in the 

16 criminal history records; and 

17 ‘‘(E) shall maintain adequate security 

18 measures to ensure the confidentiality of the 

19 fingerprints, the criminal history records, and 

20 the information in the criminal history records. 

21 ‘‘(2) COMPLIANCE.— 

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

23 shall promulgate regulations to ensure the en24 forcement of the nondisclosure requirements 

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1 priate sanctions in the case of violations of the 

2 requirements. 

3 ‘‘(B) PARTICIPATING ENTITIES AND DES4 IGNEES.—The participation in any program 

5 under this section by an entity or organization 

6 that enters into an agreement with the Attorney 

7 General to carry out the duties described in 

8 subsection (c) or to carry out the criminal his9 tory review program shall be conditioned on the 

10 person— 

11 ‘‘(i) establishing procedures to ensure 

12 compliance with, and respond to any viola13 tions of, paragraph (1); and 

14 ‘‘(ii) maintaining substantial compli15 ance with paragraph (1). 

16 ‘‘(3) DESTRUCTION OF RECORDS.— 

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

18 subparagraph (B) and subject to subsection 

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

20 check designee, the criminal history review des21 ignee, and the covered entity or participating 

22 entity— 

23 ‘‘(i) shall destroy any fingerprints, ei24 ther in paper or electronic form, or crimi25 nal history record received for purposes of 


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1 carrying out the provisions of this Act 

2 after any transaction based on the finger3 prints or criminal history record is com4 pleted; and 

5 ‘‘(ii) shall after such destruction not 

6 maintain the fingerprints, the criminal his7 tory records, or the information in the 

8 criminal history record in any form. 

9 ‘‘(B) REPEAT APPLICANTS.—A covered in10 dividual may sign a release permitting the At11 torney General or criminal history review des12 ignee to retain the fingerprints of the covered 

13 individual for a period not to exceed 5 years, 

14 for the sole purpose of participating in the 

15 criminal history review program on a subse16 quent occasion.’’. 

17 SEC. 4. EXTENSION OF CHILD SAFETY PILOT. 

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

19 U.S.C. 5119a note) is amended— 

20 (1) by striking ‘‘78-month’’; and 

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

22 Child Safety Pilot Program under this paragraph 

23 shall terminate on the date that the program for na24 tional criminal history background checks for child25 serving organizations established under the Child 


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1 Protection Improvements Act of 2009 is operating 

2 and able to enroll any organization using the Child 

3 Safety Pilot Program.’’. 

Æ 


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